March 27, 2009 Page 1 of 3 Index of BDE Information ...

Index of
BDE Information Memorandums
March 27, 2009
Page 1 of 3
Memo No. Date Subject
92-1 9/16/92 BDE Information Memoranda
92-2 Deleted Regional 401 Certifications for Nationwide
Permit 14
(See updated information issued via
BDE Information Memorandum 02-40)
92-3 10/9/92 Revised FHWA Guidance On Cooperating
Agencies
92-4 10/9/92 FHWA Position Paper on Secondary and
Cumulative Environmental Impact Assessment
92-5 Deleted 1977 Programmatic Section 4(f) Statement for
Independent Bikeway or Walkway Construction
Projects
(See Appendix A of Part III of the BDE Manual)
93-6 Deleted 1992 Agricultural Areas Annual Report
(Agricultural Areas Reports are available on the
Illinois Department of Agriculture Internet Site:
http://www.agr.state.il.us/Environment/LandWater/i
ndex.html )
93-7 Deleted IDOA Guidance - Land Evaluation and Site
Assessment System
(Current Land Evaluation and Site Assessment
System guidance is available on the Illinois
Department of Agriculture Internet Site:
http://www.agr.state.il.us/Environment/LandWater/
LESA.pdf )
95-8 Deleted Illinois Environmental Protection Act
(The current Act is available on the Illinois Pollution
Control Board Internet Site:
http://www.ipcb.state.il.us )
93-9 Deleted Public Act 88-139, Protection of Natural Areas
(The current Act is available on the Illinois
Department of Natural Resources Internet Site:
http://dnr.state.il.us/orep/nrrc/pdfs/napa.pdf )
93-10 8/27/93 Approved IDOT Agricultural Land Preservation
Policy and Cooperative Working Agreement
93-11 9/20/93 Federal Register Notice: Department of the
Army/USEPA - Clean Water Act Regulatory
Programs
(See updated information issued via BDE
Information Memorandum 01-34)
94-12 Deleted FHWA Guidance on Logical Project Termini
(See Chapter 22 of BDE Manual)
94-13 10/7/94 Interim Guidance on Applying Section 4(f) On
Transportation Enhancement Projects and National
Recreational Trails Projects

Index of BDE Information Memorandums March 27, 2009
Page 2 of 3
Memo No. Date Subject
00-14 Deleted Regulatory Guidance Letters Issued by the Corps
of Engineers
(Current Regulatory Guidance Letters are available
via the Corps of Engineers Regulatory Home Page:
http://www.usace.army.mil/inet/functions/cw/cecwo/
reg/ )
95-15 4/28/95 FHWA Environmental Policy Statement – 1994
95-16 6/30/95 Adopted Rules - Register of Land and Water
Reserves
95-17 10/3/95 Selected Wetlands-Related Legislation and
Programs Applicable to Illinois
96-18 4/30/96 Summary of Environmental Legislation Affecting
Transportation
96-19 6/6/96 Final Adopted Rules: Implementing Procedures for
the Interagency Wetland Policy Act
97-20 Deleted Final Notice of Issuance, Reissuance, and
Modification of Nationwide Permits
(See updated information issued via BDE
Information Memorandum 02-38)
97-21 1/14/97 Federal Guidance for the Establishment, Use and
Operation of Mitigation Banks
97-22 8/21/97 Information on Environmental Justice
97-23 11/14/97 Categorical Exclusion Agreement
99-24 3/8/99 FHWA Order on Environmental Justice
04-25 7/14/04 Adopted Amendments to the ACHP Rules for
Protection of Historic Properties (36 CFR 800)
02-26 3/25/02 FHWA Update on Metric Use Requirements
99-27 12/21/99 Final Regulations on Phase II of the NPDES Permit
Program for Storm Water discharges
00-28 1/19/00 The Environmental Guidebook, CD-ROM
00-29 4/3/00 FHWA Highway Traffic Noise Analysis and
Abatement Policy and Guidance
00-30 Deleted Issuance and Modification of Nationwide Permits to
Replace Nationwide Permit 26
(See updated information issued via BDE
Information Memorandum 02-38)
00-31 Deleted Regional Conditions for Nationwide 404 Permits
(See updated information issued via BDE
Information Memorandum 02-40)
00-32 9/5/00 NPDES Storm Water Permit Program-Phase II
Supplemental Information
01-33 1/22/01 Final Rule – 23 CFR Part 777; Mitigation of
Impacts to Wetlands and Natural Habitat
01-34 4/16/01 Final Rule: Revisions to the Regulatory Definition
of Discharge of Dredged Material
01-35 9/19/01 Illinois Endangered Species Act – Incidental
Taking Requirements

Index of BDE Information Memorandums March 27, 2009
Page 3 of 3
Memo No. Date Subject
01-36 Deleted Regulatory Guidance Letter No. 01-1 Corps of
Engineers Mitigation Guidance
(Current Regulatory Guidance Letters are available
via the Corps of Engineers Regulatory Home Page:
http://www.usace.army.mil/inet/functions/cw/cecwo/
reg/ )
01-37 12/5/01 A Citizen’s Guide to Transportation
Decisionmaking
02-38 2/13/02 January 15, 2002 Final Notice: Re-issuance of
Nationwide Permits, Conditions, and Definitions
02-39 3/25/02 Section 401 Water Quality Certification for
January 15, 2002 Re-issued Nationwide Permits
02-40 05/20/02 Regional Conditions for January 15, 2002 Reissued
Nationwide 404 Permits
02-41 06/05/02 Transportation and Environmental Justice –
Effective Practices CD-ROM
03-42 07/01/03 General NPDES Permit No. ILR10, Issued May 30,
2003
03-43 11/14/03 DOT Order 5611.1A – National Procedures for
Elevating Highway and Transit Environmental
Disputes
04-44 1/2/04 Federal Guidance on the Use of the TEA-21
Preference for Mitigation Banking
04-45 1/2/04 Federal Guidance on “Purpose and Need”
Statements in NEPA Documents
07-46 11/15/2007 March 12, 2007 Final Notice: Re-issuance of
Nationwide Permit, Conditions, and Definitions
07-47 11/15/2007 Section 401 Water Quality Certification for March
12, 2007 Re-issued Nationwide 404 Permits
07-48 11/15/2007 Regional Conditions for March 12, 2007 Re-issued
Nationwide 404 Permits
09-49 3/27/2009 Beneficial Use of Bridge Demolition Debris

DEPARTMENT OF TRANSPORTATION
Office of the Secretary
[OST Docket No. OST-95-141 (50125)]
Department of Transportation Order to Address Environmental Justice in Minority Populations and
Low-Income Populations
AGENCY: Office of the Secretary: Departmental Office of Civil Rights and Office of the Assistant
Secretary for Transportation Policy; Department of Transportation (DOT).
ACTION: Notice of final DOT Order on environmental justice.
SUMMARY: The Department of Transportation is issuing its final DOT Order, which will be used
by DOT to comply with Executive Order 12898, Federal Actions to Address Environmental Justice
in Minoritv Populations and Low-Income Ponulations. The Order generally describes the process
that the Office of the Secretary and each Operating Administration will use to incorporate
environmental justice principles (as embodied in the Executive Order) into existing programs,
policies, and activities. The Order provides that the Office of the Secretary and each Operating
Administration within DOT will develop specific procedures to incorporate the goals of the DOT
Order and the Executive Order with the programs, policies and activities which they administer or
implement.
FOR FURTHER INFORMATION CONTACT: Ira Laster Jr., Office of Environment, Energy,
and Safety, Office of the Assistant Secretary for Transportation Policy, (202) 366-4859, or Marc
Brenman, Departmental Office of Civil Rights, (202) 366-l 119, U.S. Department of Transportation,
400 7th Street, S.W., Washington, D.C. 20590.
SUPPLEMENTARY INFORMATION: Executive Order 12898, as well as the President’s
February 11,1994 Memorandum on Environmental Justice (sent to the heads of all departments and
agencies), are intended to ensure that Federal departments and agencies identify and address
disproportionately high and adverse human health or environmental effects of their policies,
programs and activities on minority populations and low-income populations.
The DOT Environmental Justice Order is a key component of DOT’s June 2 1,1995
Environmental Justice Strategy (60 F.R. 33896). The Order sets forth a process by which DOT and
its Operating Administrations will integrate the goals of the Executive Order into their operations.
This is to be done through a process developed within the framework of existing requirements,
primarily the National Environmental Policy Act (NEPA), Title VI of the Civil Rights Act of 1964
(Title VI), the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as
amended (URA), the Intermodal Surface Transportation Efficiency Act of 199 1 (ISTEA), and other
DOT applicable statutes, regulations and guidance that concern planning; social, economic, or
environmental matters; public health or welfare; and public involvement. The Order is an internal
directive to the various components of DOT and does not create any right to judicial review for
compliance or noncompliance with its provisions.
In order to provide an opportunity for public input, a proposed version of this Order was
published for comment on June 29,1995 (60 F.R. 33899). A total of 30 written commenti were
received. Fifteen comments were received from state transportation or highway agencies,
representing 20 state agencies (one letter was signed by ten state agencies, but four of those also sent

individual comments). The other 15 comments included four from transit agencies, four from
national organizations, two each from local governments, metropolitan planning organizations, and
citizens objecting to one particular project, and one from a professional association.
Most of the comments from the state agencies suggested that the proposed Order would
duplicate existing processes and impose additional burdens on the state agencies, and urged that
greater flexibility be granted to states.
The DOT Order reinforces considerations already embodied in NEPA and Title VI, and the
final version has been revised to make this clearer. It is intended to insure that a process for the
assessment of environmental justice factors becomes common practice in the application of those,
and related, statutes.
Many other comments suggested ways in which the Order might be clarified or simplified, or
addressed specific details of individual agency implementation. As this Order is only intended to
provide general guidance to all DOT components, detailed comments on each agency’s
implementation are premature, and should be made during opportunities for public input on agency
implementation (para. 5 of the Order).
Several commenters suggested greater reliance on existing procedures, particularly those
implementing NEPA.
One commenter noted, “Over the past number of years we have seen rules and laws initiated
with laudable intent, only to be slowly transformed into bureaucratic mazes only dimly related to
their original purpose.”
The Department does not intend that this Order be the first step in creating a new set of
requirements. The objective of this Order is the development of a process that integrates the existing
statutory and regulatory requirements in a manner that helps ensure that the interests and well being
of minority populations and low-income populations are considered and addressed during
transportation decision making.
To further advance this objective, explanatory information has been provided in this preamble
and several changes have been made in the Order. Most notably:
Further clarification has been provided concerning the use of existing NEPA, Title VI,
URA and ISTEA planning requirements and procedures to satisfy the objectives of
Executive Order 12898.
The application of the Order to ongoing activities is discussed in this preamble.
The Order has been modified to further clarify the relationship and use of NEPA and
Title VI in implementing the Executive Order.
Further, in developing and reviewing implementing procedures, described in paragraph 5a to
comply with Executive Order 12898, the emphasis continues to be on the actual implementation of
2

NEPA, Title VI, the URA and ISTEA planning requirements so as to prevent disproportionately high
and adverse human health or environmental effects of DOT’s programs, policies and activities on
minority populations and low-income populations.
One of the primary issues raised in the proposed Order concerned the actions that would be
taken if a disproportionately high and adverse human health or environmental effect on minority
populations or low-income populations is identified. The proposed Order set forth three options. A
variety of comments were received on this issue, both for and against the various options.
The final Order adopts a modified version of Option B from the proposed Order. While
Option B implements a new process for addressing disproportionately high and adverse effects, the
Department believes that Option B is consistent with existing law and best accomplishes the
objectives of the Executive Order. Option B (now incorporated in paragraphs 8a, 8b and 8c of the
final Order) provides that disproportionate impacts on low-income and minority populations are to be
avoided, if practicable, that is, unless avoiding such disproportionate impacts would result in
significant adverse impacts on other important social, economic, or environmental resources.
Further, populations protected by Title VI are covered by the additional provisions of paragraph 8b.
Three commenters expressed concern and uncertainty as to the implementation of paragraph 6b( 1) of
Option B as proposed, that provided for an agreement with populations protected by Title VI. DOT
agreed with the comments and, accordingly, that paragraph has been deleted from the final Order.
Several commenters asked about the effective date of this Order. In particular they wanted to
know whether it applies to ongoing projects. The effective date of the Order is the date of its
issuance. However, to the extent that the Order clarifies existing requirements that ensure
environmental justice principles are considered and addressed before final transportation decisions
are made, its purposes already should be reflected in actions relating to ongoing projects.
Several commenters recommended that insignificant or de minimis actions not be covered by
this Order. It is noted that the definition of “programs, policies and/or activities” in Section If of the
Appendix does not apply to those actions that do not affect human health or the environment. Other
actions that have insignificant effects on human health or the environment can be excluded from
coverage by a DOT component.
One commenter suggested that this Order might be inconsistent with the Supreme Court’s
decision in Adarand Constructors v. m. DOT has concluded that, since the purpose of this Order
is unrelated to the types of programs which were
the subject of Adarand, this Order is not affected by the Adarand decision.
Dated: February 3, 1997
Federico F. Pefia
Secretary of Transportation
3

DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
WASHINGTON, D.C.
SUBJECT: DEPARTMENT OF TRANSPORTATION ACTIONS TO ADDRESS
ENVIRONMENTAL JUSTICE IN MINORITY POPULATIONS AND LOW-
INCOME POPULATIONS
1. PURPOSE AND AUTHORITY.
a. This Order establishes procedures for the Department of Transportation (DOT) to use
in complying with Executive Order 12898, Federal Actions to Address Environmental
Justice in Minoritv Populations and Low-Income Ponulations, dated February 11,
1994. Relevant definitions are in the Appendix.
b. Executive Order 12898 requires each Federal agency, to the greatest extent practicable
and permitted by law, and consistent with the principles set forth in the report on the
National Performance Review, to achieve environmental justice as part of its mission
by identifying and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects, including interrelated social and economic
effects, of its programs, policies, and activities on minority populations and low-
income populations in the United States. Compliance with this DOT Order is a key
element in the environmental justice strategy adopted by DOT to implement the
Executive Order, and can be achieved within the framework of existing laws,
regulations, and guidance.
C. Consistent with paragraph 6-609 of Executive Order 12898, this Order is limited to
improving the internal management of the Department and is not intended to, nor does
it, create any rights, benefits, or trust responsibility, substantive or procedural,
enforceable at law or equity, by a party against the Department, its operating
administrations, its officers, or any person. Nor should this Order be construed to
create any right to judicial review involving the compliance or noncompliance with
this Order by the Department, its operating administrations, its officers or any other
person.
2. SCOPE. This Order applies to the Office of the Secretary, the United States Coast Guard,
DOT’s operating administrations, and all other DOT components.
3. EFFECTIVE DATE. This Order is effective upon its date of issuance.
4. POLICY.
a. It is the policy of DOT to promote the principles of environmental justice (as
embodied in the Executive Order) through the incorporation of those principles in all
DOT programs, policies, and activities. This will be done by fully considering
4

environmental justice principles throughout planning and decision-making processes
in the development of programs, policies, and activities, using the principles of the
National Environmental Policy Act of 1969 (NEPA), Title VI of the Civil Rights Act
of 1964 (Title VI), the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, as amended,(URA), the Intermodal Surface Transportation
Efficiency Act of 199 1 (ISTEA) and other DOT statutes, regulations and guidance that
address or affect infrastructure planning and decisionmaking; social, economic, or
environmental matters; public health; and public involvement.
b. In complying with this Order, DOT will rely upon existing authority to collect data
and conduct research associated with environmental justice concerns. To the extent
permitted by existing law, and whenever practical and appropriate to assure that
disproportionately high and adverse effects on minority or low income populations are
identified and addressed, DOT shall collect, maintain, and analyze information on the
race, color, national origin, and income level of persons adversely affected by DOT
programs, policies, and activities, and use such information in complying with this
Order.
5. INTEGRATION WITH EXISTING OPERATIONS.
a. The Office of the Secretary and each operating administration shall determine the
most effective and efficient way of integrating the processes and objectives of this
Order with their existing regulations and guidance. Within six months of the date of
this Order each operating administration will provide a report to the Assistant
Secretary for Transportation Policy and the Director of the Departmental Office of
Civil Rights describing the procedures it has developed to integrate, or how it is
integrating, the processes and objectives set forth in this Order into its operations.
b. In undertaking the integration with existing operations described in paragraph Sa,
DOT shall observe the following principles:
(1)
(2)
Planning and programming activities that have the potential to have a
disproportionately high and adverse effect on human health or the environment shall
include explicit consideration of the effects on minority populations and low-income
populations. Procedures shall be established or expanded, as necessary, to provide
meaningful opportunities for public involvement by members of minority populations
and low-income populations during the planning and development of programs,
policies, and activities (including the identification of potential effects, alternatives,
and mitigation measures).
Steps shall be taken to provide the public, including members of minority populations
and low-income populations, access to public information concerning the human
health or environmental impacts of programs, policies, and activities, including
information that will address the concerns of minority and low-income populations
regarding the health and environmental impacts of the proposed action.
5

C. Future rulemaking activities undertaken pursuant to DOT Order 2 100.5 (which
governs all DOT rulemaking), and the development of any future guidance or
procedures for DOT programs, policies, or activities that affect human health or the
environment, shall address compliance with Executive Order 12898 and this Order, as
appropriate.
d. The formulation of future DOT policy statements and proposals for legislation which
may affect human health or the environment will include consideration of the
provisions of Executive Order 12898 and this Order.
6. ONGOING DOT RESPONSIBILITY
Compliance with Executive Order 12898 is an ongoing DOT responsibility. DOT will
continuously monitor its programs, policies, and activities to ensure that disproportionately
high and adverse effects on minority populations and low-income populations are avoided,
minimized or mitigated in a manner consistent with this Order and Executive Order 12898.
This Order does not alter existing assignments or delegations of authority to the Operating
Administrations or other DOT components.
7. PREVENTING DISPROPORTIONATELY HIGH AND ADVERSE EFFECTS
a. Under Title VI, each Federal agency is required to ensure that no person, on the
ground of race, color, or national origin, is excluded from participation in, denied the
benefits of, or subjected to discrimination under any program or activity receiving
Federal financial assistance. This statute affects every program area in DOT.
Consequently, DOT managers and staff must administer their programs in a manner to
assure that no person is excluded from participating in, denied the benefits of, or
subjected to discrimination by any program or activity of DOT because of race, color,
or national origin.
b. It is DOT policy to actively administer and monitor its operations and decision making
to assure that nondiscrimination is an integral part of its programs, policies, and
activities. DOT currently administers policies, programs, and activities which are
subject to the requirements of NEPA, Title VI, URA, ISTEA and other statutes that
involve human health or environmental matters, or interrelated social and economic
impacts. These requirements will be administered so as to identify, early in the
development of the program, policy or activity, the risk of discrimination so that
positive corrective action can be taken. In implementing these requirements, the
following information should be obtained where relevant, appropriate and practical:
population served and/or affected by race, color or national origin, and income
level;
proposed steps to guard against disproportionately high and adverse effects on
persons on the basis of race, color, or national origin;
6

present and proposed membership by race, color, or national origin, in any
planning or advisory body which is part of the program.
C. Statutes governing DOT operations will be administered so as to identify and avoid
discrimination and avoid disproportionately high and adverse effects on minority
populations and low-income populations by:
(1)
(2)
(3)
(4)
identifying and evaluating environmental, public health, and interrelated social
and economic effects of DOT programs, policies and activities,
proposing measures to avoid, minimize and/or mitigate disproportionately high
and adverse environmental and public health effects and interrelated social and
economic effects, and providing offsetting benefits and opportunities to
enhance communities, neighborhoods, and individuals affected by DOT
programs, policies and activities, where permitted by law and consistent with
the Executive Order,
considering alternatives to proposed programs, policies, and activities, where
such alternatives would result in avoiding and/or minimizing
disproportionately high and adverse human health or environmental impacts,
consistent with the Executive Order, and
eliciting public involvement opportunities and considering the results thereof,
including soliciting input from affected minority and low-income populations
in considering alternatives.
8. ACTIONS TO ADDRESS DISPROPORTIONATELY HIGH AND ADVERSE
EFFECTS.
a. Following the guidance set forth in this Order and its Appendix, the head of each
Operating Administration and the responsible officials for other DOT components
shall determine whether programs, policies, and activities for which they are
responsible will have an adverse impact on minority and low-income populations and
whether that adverse impact will be disproportionately high.
b. In making determinations regarding disproportionately high and adverse effects on
minority and low-income populations, mitigation and enhancements measures that
will be taken and all offsetting benefits to the affected minority and low-income
populations may be taken into account, as well as the design, comparative impacts,
and the relevant number of similar existing system elements in non-minority and non-
low-income areas.
C. The Operating Administrators and other responsible DOT officials will ensure that
any of their respective programs, policies or activities that will have a
disproportionately high and adverse effect on minority populations or low-income
populations will only be carried out if further mitigation measures or alternatives that
7

APPENDIX
would avoid or reduce the disproportionately high and adverse effect are not
practicable. In determining whether a mitigation measure or an alternative is
“practicable,” the social, economic (including costs) and environmental effects of
avoiding or mitigating the adverse effects will be taken into account.
d. Operating Administrators and other responsible DOT officials will also ensure that
any of their respective programs, policies or activities that will have a
disproportionately high and adverse effect on populations protected by Title
VI(“protected populations”) will only be carried out if
(1)
(2)
a substantial need for the program, policy or activity exists, based on the
overall public interest; and
alternatives that would have less adverse effects on protected populations (and
that still satisfy the need identified in subparagraph (1) above), either (i) would
have other adverse social, economic, environmental or human health impacts
that are more severe, or (ii) would involve increased costs of extraordinary
magnitude.
e. DOT’s responsibilities under Title VI and related statutes and regulations are not
limited by this paragraph, nor does this paragraph limit or preclude claims by
individuals or groups of people with respect to any DOT programs, policies, or
activities under these authorities. Nothing in this Order adds to or reduces existing
Title VI due process mechanisms.
f. The findings, determinations and/or demonstration made in accordance with this
section must be appropriately documented, normally in the environmental impact
statement or other NEPA document prepared for the program, policy or activity, or in
other appropriate planning or program documentation.
1. DEFINITIONS The following terms where used in this Order shall have the following
meanings* :
a. DOT means the Office of the Secretary, DOT operating administrations, and all other
DOT components.
b. Low-Income means a person whose median household income is at or below the
Department of Health and Human Services poverty guidelines.
C. Minority means a person who is:
(1)
(2)
Black (a person having origins in any of the black racial grc- 7s of Afiica);
Hispanic (a person of Mexican, Puerto Rican, Cuban, Cent& or South
8

d.
e.
f.
h.
(3)
(4)
American, or other Spanish culture or origin, regardless of race);
Asian American (a person having origins in any of the original peoples of the
Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands); or
American Indian and Alaskan Native (a person having origins in any of the
original people of North America and who maintains cultural identification
through tribal affiliation or community recognition).
Low-Income Ponulation means any readily identifiable group of low-income persons
who live in geographic proximity, and, if circumstances warrant, geographically
dispersed/transient persons (such as migrant workers or Native Americans) who will
be similarly affected by a proposed DOT program, policy or activity.
Minoritv Ponulation means any readily identifiable groups of minority persons who
live in geographic proximity, and if circumstances warrant, geographically
dispersed/transient persons (such as migrant workers or Native Americans) who will
be similarly affected by a proposed DOT program, policy or activity.
Adverse effects means the totality of significant individual or cumulative human
health or environmental effects, including interrelated social and economic effects,
which may include, but are not limited to: bodily impairment, infirmity, illness or
death; air, noise, and water pollution and soil contamination; destruction or disruption
of man-made or natural resources; destruction or diminution of aesthetic values;
destruction or disruption of community cohesion or a community’s economic vitality;
destruction or disruption of the availability of public and private facilities and
services; vibration; adverse employment effects; displacement of persons, businesses,
farms, or nonprofit organizations; increased trtic congestion, isolation, exclusion or
separation of minority or low-income individuals within a given community or from
the broader community; and the denial of, reduction in, or significant delay in the
receipt of, benefits of DOT programs, policies, or activities.
DisDroDortionatelv hiPh and adverse effect on minoritv and low-income
poDulations means an adverse effect that:
(1)
(2)
is predominately borne by a minority population and/or a low-income
population, or
will be suffered by the minority population and/or low-income population and
is appreciably more severe or greater in magnitude than the adverse effect that
will be suffered by the non-minority population and/or non-low-income
population.
Proprams. Dolicies. and/or activities means all projects, programs, policies, and
activities that affect human health or the environment, and which are undertaken or
approved by DOT. These include, but are not limited to, permits, licenses, and
9

financial assistance provided by DOT. Interrelated projects within a system may be
considered to be a single project, program, policy or activity for purposes of this
Order.
I. Rewlations and puidance means regulations, programs, policies, guidance, and
procedures promulgated, issued, or approved by DOT.
*These definitions are intended to be consistent with the draft definitions for E.O. 12898 that have
been issued by the Council on Environmental Quality and the Environmental Protection Agency. To
the extent that these definitions vary from the CEQ and EPA draft definitions, they reflect further
refinements deemed necessary to tailor the definitions to fit within the context of the DOT program.
Federico F. Pefia
Secretary of Transportation
10

.
-.
t 3 : d Order
U.S. DEPARTMENT OF
TRANSPORTATION
Federal Highway
Administration
Subject
FHWA ACTIONS TO ADDRESS ENVIRONMENTAL
JUSTICE IN MINORITY POPULATIONS AND
LOW-INCOME POPULATIONS
Classification Code Date
Par. 1. Purpose And Authority
2. Definitions
3. Policy
4. Integrating Environmental Justice Principles With Existing Operations
5. Preventing Disproportionately High and Adverse Effects
6. Actions to Address Disproportionately High and Adverse Effects
1. PURPOSE AND AUTHORITY.
December 2, 1998
a. This Order establishes policies and procedures for the Federal Highway
Administration (FHWA) to use in complying with Executive Order 12898,
Federal Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations (EO 12898), dated February 11, 1994.
b. EO 12898 requires Federal agencies to achieve environmental justice by
identifying and addressing disproportionately high and adverse human health and
environmental effects, including the interrelated social and economic effects of
their programs, policies, and activities on minority populations and low-income
populations in the United States. These requirements are to be carried out to the
greatest extent practicable, consistent with applicable statutes and the National
Performance Review. Compliance with this FHWA Order is a key element in the
environmental justice strategy adopted by FHWA to implement EO 12898, and
can be achieved within the framework of existing laws, regulations, and guidance.
C. Consistent with paragraph 6-609 of Executive Order 12898 and the Department of
Transportation Order on Environmental Justice (DOT Order 5610.2) dated April
15, 1997, this Order is limited to improving the internal management of the
Agency and is not intended to, nor does it, create any rights, benefits, or trust
responsibility, substantive or procedural, enforceable at law or equity, by a party
against the Agency, its officers, or any person. Nor should this Order be
DISTRIBUTION : HEADQUARTERS
RESOURCE CENTERS
DIVISIONS
OPI: HEP-30

2.
DEFINITIONS
construed to create any right to judicial review involving the compliance or
noncompliance with this Order by the Agency, its operating administrations, its
officers, or any other person.
The following terms, where used in this Order, shall have the following meanings’:
a. FHWA means the Federal Highway Administration as a whole and one or more
of its individual components;
b. Low-Income means a household income at or below the Department of Health
and Human Services .poverty guidelines;
C. Minority means a person who is:
(1)
(2)
(3)
(4)
Black (having origins in any of the black racial groups of Africa);
Hispanic (of Mexican, Puerto Rican, Cuban, Central or South American,
or other Spanish culture or origin, regardless of race);
Asian American (having origins in any of the original peoples of the Far
East, Southeast Asia, the Indian subcontinent, or the Pacific Islands); or
American Indian and Alaskan Native (having origins in any of the original
people of North America and who maintains cultural identification
through tribal affiliation or community recognition).
d. Low-Income Population means any readily identifiable group of low-income
persons who live in geographic proximity, and, if circumstances warrant,
geographically dispersed/transient persons (such as migrant workers or Native
Americans) who would be similarly affected by a proposed FHWA program,
policy, or activity.
e. Minority Pouulation means any readily identifiable groups of minority persons
who live in geographic proximity, and if circumstances warrant, geographically
'These definitions are intended to be consistent with the
draft definitions for EO 12898 that have been issued by the
Council on Environmental Quality (CEQ)and the Environmental
Protection Agency (EPA). To the extent that these definitions
vary from the CEQ and EPA draft definitions, they reflect further
refinements deemed necessary to tailor the definitions to fit
within the context of the FHWA program.
2

-.
dispersed/transient persons (such as migrant workers or Native Americans) who
will be similarly affected by a proposed FHWA program, policy, or activity.
f. Adverse Effects means the totality of significant individual or cumulative human
health or environmental effects, including interrelated social and economic
effects, which may include, but are not limited to: bodily impairment, infirmity,
illness or death; air, noise, and water pollution and soil contamination; destruction
or disruption of man-made or natural resources; destruction or diminution of
aesthetic values; destruction or disruption of community cohesion or a
community’s economic vitality; destruction or disruption of the availability of
public and private facilities and services; vibration; adverse employment effects;
displacement of persons, businesses, farms, or nonprofit organizations; increased
traffic congestion, isolation, exclusion or separation of minority or low-income
individuals within a given community or from the broader community; and the
denial of, reduction in, or significant delay in the receipt of, benefits of FHWA
programs, policies, or activities.
g. Disproportionately Hieh and Adverse Effect on Minority and Low-Income
Populations means an adverse effect that:
(1)
(2)
is predominately borne by a minority population and/or a low-income
population; or
will be suffered by the minority population and/or low-income population
and is appreciably more severe or greater in magnitude than the adverse
effect that will be suffered by the nonminority population and/or nonlow-
income population.
h. Programs. Policies, and/or Activities means all projects, programs, policies, and
activities that affect human health or the environment, and that are undertaken,
funded, or approved by FHWA. These include, but are not limited to, permits,
licenses, and financial assistance provided by FHWA. Interrelated projects within
a system may be considered to be a single project, program, policy, or activity for
purposes of this Order.
i. Regulations and Guidance means regulations, programs, policies, guidance, and
procedures promulgated, issued, or approved by FHWA.
3. POLICY
a. It is FHWA’s longstanding policy to actively ensure nondiscrimination in
Federally funded activities. Furthermore, it is FHWA’s continuing policy to
identify and prevent discriminatory effects by actively administering its programs,
policies, and activities to ensure that social impacts to communities and people
are recognized early and continually throughout the transportation
decisionmaking process--from early planning through implementation.
3

Should the potential for discrimination be discovered, action to eliminate the
potential shall be taken.
b. EO 12898, DOT Order 56 10.2, and this Order are primarily a reaffirmation of the
principles of Title VI of the Civil Rights Act of 1964 (Title VI) and related
statutes, the National Environmental Policy Act (NEPA), 23 U.S.C. 109(h) and
.~ .--other Federal environmentalllaws,~emphasizing the incorporation of those
provisions with the environmental and transportation decisionmaking processes.
Under Title VI, each Federal agency is required to ensure that no person on the
grounds of race, color, or national origin, is excluded from participation in, denied
the benefits of, or subjected to discrimination under any program or activity
receiving Federal financial assistance. This statute applies to every program area
in FHWA. Under EO 12898, each Federal agency must identify and address, as
appropriate, disproportionately high and adverse human health or environmental
effects of its programs, policies, and activities on minority populations and low-
income populations.
C. FHWA will implement the principles of the DOT Order 5610.2 and EO 12898 by
incorporating Environmental Justice principles in all FHWA programs, policies,
and activities within the framework of existing laws, regulations, and guidance.
d. In complying with this Order, FHWA will rely upon existing authorities to collect
necessary data and conduct research associated with environmental justice
concerns, including 49 CFR 21.9(b) and 23 CFR 200.9 (b)(4).
4. INTEGRATING ENVIRONMENTAL JUSTICE PRINCIPLES WITH EXISTING
OPERATIONS
a. The principles outlined in this Order are required to be’integrated in existing
operations.
b. Future rulemaking activities undertaken, and the development of any future
guidance or procedures for FHWA programs, policies, or activities that affect
human health or the environment, shall explicitly address compliance with EO
12898 and this Order.
C. The formulation of future FHWA policy statements and proposals for legislation
that may affect human health or the environment will include consideration of the
provisions of EO 12898 and this Order.
5. PREVENTING DISPROPORTIONATELY HIGH AND ADVERSE EFFECTS
a. Under Title VI, FHWA managers and staff must administer their programs in a
manner to ensure that no person is excluded from participating in, denied the
benefits of, or subjected to discrimination under any program or activity of
4

.
b.
FHWA because of race, color, or national origin. Under EO 12898, FHWA
managers and staffmust administer their programs to identify and address, as
appropriate, disproportionately high and adverse human health or environmental
effects of FHWA programs, policies, and activities on minority populations and
low-income populations.
FHWA currently administers policies, programs, and activities that are subject to
the requirements of NEPA, Title VI, the Uniform Relocation Assistance and Real
Property Acquisition Act of 1970 (Uniform Act), Title 23 of the United States
Code and other statutes that involve human health or environmental matters, or
interrelated social and economic impacts. These requirements will be
administered to identity the risk of discrimination, early in the development of
FHWA’s programs, policies, and activities so that positive corrective action can
be taken. In implementing these requirements, the following information should
be obtained where relevant, appropriate, and practical:
(1) population served and/or affected by race, or national origin, and income
I evel;
(2) proposed steps to guard against disproportionately high and adverse
effects on persons on the basis of race, or national origin; and,
(3) present and proposed membership by race, or national origin, in any
planning or advisory body that is part of the program.
C. FHWA will administer its governing statutes so as to identify and avoid
discrimination and disproportionately high and adverse effects on minority
populations and low-income populations by:
(1) identifying and evaluating environmental, public health, and interrelated
social and economic effects of FHWA programs, policies, and activities;
and
(2) proposing measures to avoid, minimize, and/or mitigate disproportionately
high and adverse environmental and public health effects and interrelated
social and economic effects, and providing offsetting benefits and
opportunities to enhance communities, neighborhoods, and individuals
affected by FHWA programs, policies, and activities, where permitted by
law and consistent with EO 12898; and
(3) considering alternatives to proposed programs, policies, and activities,
where such alternatives would result in avoiding and/or minimizing
disproportionately high and adverse human health or environmental
impacts, consistent with EO 12898; and
(4) providing public involvement opportunities and considering the results
thereof, including providing meaningtil access to public information
5

concerning the human health or environmental impacts and soliciting
input from affected minority and low-income populations in considering
alternatives during the planning and development of alternatives and
decisions.
6. ACTIONS TO ADDRESS DISPROPORTIONATELY H-lGH AND ADVERSE
EFFECTS
a. Following the guidance set forth in this Order, FHWA managers and staff shall
ensure that FHWA programs, policies, and activities for which they are
responsible do not have a disproportionately high and adverse effect on minority
or low-income populations.
b. When determining whether a particular program, policy, or activity will have
disproportionately high and adverse effects on minority and low-income
populations, FHWA managers and staff should take into account mitigation and
enhancements measures and potential offsetting benefits to the affected minority
or low-income populations. Other factors that may be taken into account include
design, comparative impacts, and the relevant number of similar existing system
elements in nonminority and nonlow-income areas.
C. FHWA managers and staff will ensure that the programs, policies, and activities
that will have disproportionately high and adverse effects on minority populations
or low-income populations will only be carried out if further mitigation measures
or alternatives that would avoid or reduce the disproportionately high and adverse
effects are not practicable. In determining whether a mitigation measure or an
alternative is “practicable,” the social, economic (including costs) and
environmental effects of avoiding or mitigating the adverse effects will be taken
into account.
d. FHWA managers and staff will also ensure that any of their respective programs,
policies or activities that have the potential for disproportionately high and
adverse effects on populations protected by Title VI (“protected populations”)
will only be carried out if
(0
(2)
a substantial need for the program, policy or activity exists, based on the
overall public interest; and
alternatives that would have less adverse effects on protected populations
have either:
(a) adverse social, economic, environmental, or human health
impacts that are more severe; or
(b) would involve increased costs of an extraordinary magnitude.
6

Attachment
e. Any relevant finding identified during the implementation of this Order must be
included in the planning or NEPA documentation that is prepared for the
appropriate program, policy, or activity.
f Environmental and civil rights statutes provide opportunities to address the
environmental effects on minority populations and low-income populations.
Under Title VI, each Federal agency is required to ensure that no person on
grounds of race, color, or national origin is excluded from participation in, denied
the benefits of, or in any other way subjected to discrimination under any program
or activity receiving Federal assistance. Therefore, any member of a protected
class under Title VI may file a complaint with the FHWA Offke of Civil Rights,
Attention HCR-20, alleging that he or she was subjected to disproportionately
high and adverse health or environmental effects, FHWA will then process the
allegation in a manner consistent with the attached operations flowchart.
Federal Highway Administrator
7

PROCESSING ALLEGATIONS OF DISPROPORTIONATE EFFECTS AND
DISCRIMINATION INVOLVING ENVIRONMENTAL JUSTICE CLAIMS
Allegations
Received
Matters raised are
"Ripe" for
Investigation
Allegations
Analyzed
Yes
No
*Identifies other involved agencies
and either coordinate a joint
investigation or agree on a lead
agency and avenues of appeal.
Authority
Jurisdiction
Standing
Timely Filed
Complete
New Issues
Prima Facie Case
Being Pursued in
Other Forums*
Obtain & Assign DOT
Complaint Number to Case
(EXTRAC)
Project Development Related
Not Related to Project
Development
No
Yes
Notify Complainant of
issues accepted as a
complaint
Advise Charging Party of
Information Required &
Time Limit for Submission
Advise Charging Party of
Rejection of Allegations,
Basis/Bases for Decision and
Appeal rights & Avenues
Investigate
Complaint
Notify Charging Party of the NEPA Process and
the Need for Active Involvement to ensure that
their concerns are fully and fairly considered
Where possible, and
appropriate, attempt
informal resolution
Notify Headquarters Office of Environment & Planning of concerns raised
to allow proper consideration pursuant to NEPA and Title VI. In the event
expressed concerns address matters that are not part of the NEPA process,
Environment & Planning prepares report of actions taken or proposed on
major projects. The NEPA documents can be used as the vehicles to record
concerns raised and approaches employed to address them.
Responsible officials advised of concerns and
a response to complainants coordinated
indicating how the concerns have been, are
being, or will be addressed
Informal Resolution
Obtained
Yes
No
Copies of NEPA documents
provided to Charging Party
Reduce agreement to writing and
have complainants & respondents
sign
Issue final agency decision (FAD) re:
whether probable cause exists or not &
notify parties of FAD and appeal rights
copy of transmittal to Office of Civil Rights
Follow-up

40544 Federal Register / Vol. 69, No. 128 / Tuesday, July 6, 2004 / Rules and Regulations
needing permission to pass through this
safety zone can contact the
representative for the COTP on VHF–
FM channel 16 or via phone at (912)
652–4181.
(c) Enforcement: This rule will be
enforced from 8 p.m. until 10 p.m. each
Tuesday from June 15, 2004, through
August 24, 2004, and from 8 p.m. to 10
p.m. July 4, 2004.
Dated: June 11, 2004.
D.R. Penberthy,
Commander, U. S. Coast Guard, Acting
Captain of the Port Savannah.
[FR Doc. 04–15247 Filed 7–2–04; 8:45 am]
BILLING CODE 4910–15–U
ADVISORY COUNCIL ON HISTORIC
PRESERVATION
36 CFR Part 800
RIN 3010–AA06
Protection of Historic Properties
AGENCY: Advisory Council on Historic
Preservation.
ACTION: Final rule.
SUMMARY: The Advisory Council on
Historic Preservation (ACHP) has
adopted amendments to the regulations
setting forth how Federal agencies take
into account the effects of their
undertakings on historic properties and
afford the ACHP a reasonable
opportunity to comment, pursuant to
Section 106 of the National Historic
Preservation Act (NHPA). Most of the
amendments respond to court decisions
which held that the ACHP could not
require a Federal agency to change its
determinations regarding whether its
undertakings affected or adversely
affected historic properties, and that
Section 106 does not apply to
undertakings that are merely subject to
State or local regulation administered
pursuant to a delegation or approval by
a Federal agency. Other amendments
clarify an issue regarding the time
period for objections to ‘‘No Adverse
Effect’’ findings and establish that the
ACHP can propose an exemption to the
Section 106 process on its own
initiative, rather than needing a Federal
agency to make such a proposal.
DATES: These amendments are effective
August 5, 2004.
FOR FURTHER INFORMATION CONTACT: If
you have questions about the
amendments, please call the Office of
Federal Agency Programs at 202–606–
8503, or e-mail us at achp@achp.gov.
When calling or sending an e-mail,
please state your name, affiliation and
nature of your question, so your call or
e-mail can then be routed to the correct
staff person.
SUPPLEMENTARY INFORMATION: The
information that follows has been
divided into five sections. The first one
provides background information
introducing the agency and
summarizing the history of the
rulemaking process. The second section
highlights the amendments incorporated
into the final rule. The third section
describes, by section and topic, the
ACHP’s response to public comments
on this rulemaking. The fourth section
provides the impact analysis section,
which addresses various legal
requirements, including the Regulatory
Flexibility Act, the Paperwork
Reduction Act, the National
Environmental Policy Act, the
Unfunded Mandates Act, the
Congressional Review Act and various
relevant Executive Orders. Finally, the
fifth section includes the text of the
actual, final amendments.
I. Background
Section 106 of the National Historic
Preservation Act of 1966, as amended,
16 U.S.C. 470f, requires Federal
agencies to take into account the effects
of their undertakings on properties
included, or eligible for inclusion, in the
National Register of Historic Places
(‘‘National Register’’) and to afford the
Advisory Council on Historic
Preservation (‘‘ACHP’’) a reasonable
opportunity to comment on such
undertakings. The regulations
implementing Section 106 are codified
at 36 CFR part 800 (2001) (‘‘Section 106
regulations’’).
On September 18, 2001, the Federal
District Court for the District of
Columbia (‘‘district court’’) upheld the
Section 106 regulations against several
challenges. Nevertheless, the district
court invalidated portions of two
subsections of the Section 106
regulations insofar as they allowed the
ACHP to reverse a Federal agency’s
findings of ‘‘No Historic Properties
Affected’’ (previous Sec. 800.4(d)(2))
and ‘‘No Adverse Effects’’ (previous Sec.
800.5(c)(3)). See National Mining Ass’n
v. Slater, 167 F. Supp. 2d 265 (D.D.C.
2001)(NMA v. Slater); and Id. (D.D.C.
Oct. 18, 2001)(order clarifying extent of
original order regarding Section
800.4(d)(2) of the Section 106
regulations).
Prior to the district court decision, an
objection by the ACHP or the State
Historic Preservation Officer / Tribal
Historic Preservation Officer (‘‘SHPO/
THPO’’) to a ‘‘No Historic Properties
Affected’’ finding required the Federal
agency to proceed to the next step in the
process, where it would assess whether
VerDate jul2003 17:53 Jul 02, 2004 Jkt 203001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 C:\06JYR1.SGM 06JYR1
the effects were adverse. An ACHP
objection to a ‘‘No Adverse Effect’’
finding required the Federal agency to
proceed to the next step in the process,
where it would attempt to resolve the
adverse effects.
On appeal by the National Mining
Association, the D.C. Circuit Court of
Appeals (‘‘D.C. Circuit’’) ruled that
Section 106 does not apply to
undertakings that are merely subject to
State or local regulation administered
pursuant to a delegation or approval by
a Federal agency, and remanded the
case to the district court. National
Mining Ass’n v. Fowler, 324 F.3d 752
(D.C. Cir. 2003)(NMA v. Fowler). On
September 4, 2003, the district court
issued an order declaring sections
800.3(a) and 800.16(y) invalid to the
extent that they applied Section 106 to
the mentioned undertakings, and
remanding the matter to the ACHP.
On September 25, 2003, through a
notice of proposed rulemaking
(NPRM)(68 FR 55354–55358), the ACHP
proposed amendments to the mentioned
subsections of the Section 106
regulations so that they would comport
with the mentioned court rulings, while
still being consistent with the purpose
of helping Federal agencies avoid
proceeding with a project under an
erroneous determination that the project
would not affect or adversely affect
historic properties, and still triggering
Section 106 compliance responsibilities
for Federal agencies when they approve
or fund State-delegated programs. A
related, proposed amendment would
clarify that even if a SHPO/THPO
concur in a ‘‘No Adverse Effect’’
finding, the ACHP and any consulting
party still have until the end of the 30
day review period to file an objection.
Such objections would require the
Federal agency to either resolve the
objection or submit the dispute to the
ACHP for its non-binding opinion.
Finally, the ACHP also took the
opportunity in that notice to submit an
amendment to clarify that the ACHP
could propose an exemption to the
Section 106 process on its own
initiative, rather than needing a Federal
agency to make such a proposal.
After considering the public
comments, during its business meeting
on May 4, 2004, the ACHP unanimously
adopted the final amendments to the
Section 106 regulations that appear at
the end of this notice of final rule.

Federal Register / Vol. 69, No. 128 / Tuesday, July 6, 2004 / Rules and Regulations
II. Highlights of Amendments
ACHP Review of ‘‘No Historic Properties
Affected’’ and ‘‘No Adverse Effect’’
Findings
As stated above, the district court
held that the asserted power of the
ACHP to reverse Federal agency
findings of ‘‘No Historic Properties
Affected’’ and ‘‘No Adverse Effect’’
exceeded the ACHP’s legal authority
under the NHPA. Accordingly, the final
amendments make it clear that ACHP
opinions on these effect findings are
advisory and do not require Federal
agencies to reverse their findings.
The final amendments still require a
Federal agency that makes an effect
finding and receives a timely objection
to submit it to the ACHP for a specified
review period. Within that period, the
ACHP will then be able to give its
opinion on the matter to the agency
official and, if it believes the issues
warrant it, to the head of the agency.
The agency official, or the head of the
agency, as appropriate, would take into
account the opinion and provide the
ACHP with a summary of the final
decision that contains the rationale for
the decision and evidence of
consideration of the ACHP’s opinion.
However, the Federal agency would not
be required to abide by the ACHP’s
opinion on the matter.
The amendments also change the time
period for the ACHP to issue its opinion
regarding ‘‘No Adverse Effect’’ findings,
by allowing the ACHP extend it 15 days.
This change is deemed necessary since,
among other things, the ACHP opinions
may now be addressed to the head of
the agency, and would therefore more
likely be ultimately formulated by
ACHP members, as opposed to such
tasks being mostly delegated to the staff.
Such formulation of opinions by ACHP
members is expected to require more
time considering that these ACHP
members are Special Government
Employees who reside in different areas
of the country and whose primary
employment lies outside the ACHP.
In response to public comments, as
detailed in the third section of this
preamble, the ACHP made several
changes to the originally proposed
amendments:
(1) When the ACHP decides to send
its opinion regarding effect findings to
the head of an agency, that decision
must be guided by the criteria of
appendix A of the Section 106
regulations;
(2) If the ACHP decides to object on
its own initiative to an agency finding
of effect within the initial 30-day review
period open to SHPO/THPOs and
consulting parties, the ACHP must
present its opinion to the agency at that
time, rather than merely objecting and
triggering the separate ACHP review
period for objection referrals;
(3) The head of an agency that has
received an ACHP opinion on an effect
finding may delegate the responsibility
of preparing the response to that
opinion to the Senior Policy Official of
his/her agency;
(4) When requesting the ACHP to
review effect findings, Federal agencies
must notify all consulting parties about
the referral and make the request
information available to the public;
(5) Regarding findings of ‘‘no adverse
effect,’’ the default period for ACHP
review is 15 days. However, the ACHP
may extend that time an additional 15
days so long as it notifies the Federal
agency prior to the end of the initial 15
day period;
(6) The amendments now clarify that,
when an agency and SHPO/THPO
disagree regarding a finding of ‘‘no
historic properties affected,’’ the Federal
agency has the option of either resolving
the disagreement or submitting the
matter for ACHP review; and
(7) The ACHP will retain a record of
agency responses to ACHP opinions on
findings of effect, and make such
information available to the public.
Clarification of the 30-Day Review
Period for No Adverse Effect Findings
As stated in the NPRM, questions had
arisen under the Section 106 regulations
as to whether a Federal agency could
proceed with its undertaking
immediately after the SHPO/THPO
concurred in a finding of ‘‘No Adverse
Effect.’’ The Section 106 regulations
specify a 30-day review period, during
which the SHPO/THPO, the ACHP and
other consulting parties can lodge an
objection. The result of such an
objection is that the Federal agency
must submit the finding to the ACHP for
review. If the SHPO/THPO concurs, for
example, on the fifth day of the 30 day
period, the language prior to these final
amendments may have given some the
erroneous impression that this would
cut off the right of other parties to object
thereafter within the 30 day period (e.g.,
on the 15th or 28th day).
The final amendment provides clearer
language, consistent with the original
intent expressed in the preamble to the
previous iteration of the Section 106
regulations (‘‘the SHPO/THPO and any
consulting party wishing to disagree to
the [no adverse effect] finding must do
so within the 30 day review period,’’ 65
FR 77720 (December 12, 2000)
(emphasis added)) and in subsequent
ACHP guidance on the regulations
(‘‘Each consulting party has the right to
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40545
disagree with the [no adverse effect]
finding within that 30-day review
period;’’ www.achp.gov/
106q&a.html#800.5). All consulting
parties have the full 30 day review
period to object to a no adverse effect
finding regardless of SHPO/THPO
concurrence earlier in that period.
As explained below, a few public
comments objected to this amendment.
However, the ACHP decided to leave
the language regarding this issue as it
was proposed in the NPRM.
Authorization of the ACHP to Initiate
Section 106 Exemptions
Under the Section 106 regulations
prior to these final amendments, in
order for the ACHP to begin its process
of considering an exemption, the ACHP
needed to wait for a Federal agency to
propose such an exemption. Under the
final amendments, the ACHP will be
able to initiate the process for an
exemption on its own.
As stated in the NPRM, the ACHP
believes it is in a unique position, as
overseer of the Section 106 process, to
find situations that call for a Section 106
exemption and to propose such
exemptions on its own. There may also
be certain types of activities or types of
resources that are involved in the
undertakings of several different Federal
agencies that would be good candidates
for exemptions when looking at the
undertakings of all of these agencies, but
that may not be a high enough priority
for any single one of those agencies to
prompt it to ask for an exemption or to
ask for it in a timely fashion. The ACHP
will now be able to step into those
situations and propose such exemptions
on its own, and then follow the already
established process and standards for
such exemptions.
As detailed in the third section of this
notice, there were several comments on
this part of the amendments. However,
as explained below, the ACHP decided
to not make any changes to this part of
the proposed amendments.
ACHP Review of Objections Within the
Process for Agency Use of the NEPA
Process for Section 106 Purposes
A public comment correctly pointed
out that the proposed amendments
failed to adjust the process regarding
NEPA/106 reviews (under section
800.8(c)) in accordance with the NMA v.
Slater decision. If left unchanged, that
process could have been interpreted as
allowing the ACHP to overturn agency
findings of effect.
Accordingly, the final amendments
change that process to comport with the
NMA v. Slater decision, in a manner
consistent with the final amendments

40546 Federal Register / Vol. 69, No. 128 / Tuesday, July 6, 2004 / Rules and Regulations
regarding the review of effects under the
regular Section 106 process at sections
800.4(d) and 800.5(c).
Applicability of Section 106 to
Undertakings That Are Merely Subject
to State or Local Regulation
Administered Pursuant To a Delegation
or Approval by a Federal Agency
As explained above and in the NPRM,
the D.C. Circuit held that Section 106
does not apply to undertakings that are
merely subject to State or local
regulation administered pursuant to a
delegation or approval by a Federal
agency. Accordingly, the final
amendment removes those types of
undertakings from the definition of the
term ‘‘undertaking’’ on section
800.16(y).
Formerly, an individual project would
trigger Section 106 due to its regulation
by a State or local agency (through such
actions as permitting) pursuant to
federally-delegated programs such as
those under the Surface Mining Control
and Reclamation Act, 30 U.S.C. 1201 et
seq. Under the final amendment, such
State or local regulation will not, by
itself, trigger Section 106 for those
projects.
Nevertheless, it is the opinion of the
ACHP that the Federal agency approval
and/or funding of such State-delegated
programs does require Section 106
compliance by the Federal agency, as
such programs are ‘‘undertakings’’
receiving Federal approval and/or
Federal funding. Accordingly, Federal
agencies need to comply with their
Section 106 responsibilities regarding
such programs before an approval and/
or funding decision on them. Agencies
that are approaching a renewal or
periodic assessment of such programs
may want to do this at such time.
Due to the inherent difficulties in
prospectively foreseeing the effects of
such programs on historic properties at
the time of the program approval and/
or funding, the ACHP believes that
Section 106 compliance in those
situations should be undertaken
pursuant to a program alternative per 36
CFR 800.14. For example, that section of
the regulations provides that
‘‘Programmatic Agreements’’ may be
used when ‘‘* * * effects on historic
properties cannot be fully determined
prior to approval of an undertaking; [or]
* * * when nonfederal parties are
delegated major decisionmaking
responsibilities * * *’’ 36 CFR
800.14(b)(1). The ACHP stands ready to
pursue such alternatives with the
relevant Federal agencies.
While there were various comments
on this part of the amendments and the
explanatory material of the NPRM, the
ACHP decided not to change the
amendments regarding this issue. See
the discussion of those comments,
below.
III. Response to Public Comments
Following is a summary of the public
comments received in response to the
NPRM, along with the ACHP’s response.
The public comments are printed in
bold typeface, while the ACHP response
follows immediately in normal typeface.
They are organized according to the
relevant section of the proposed rule or
their general topic.
NMA v. Slater and Sayler Park Case
Several public comments asked the
ACHP to mention a case out of a District
Court in Ohio. In that case, Sayler Park
Village Council v. U.S. Army Corps of
Engineers, 2002 WL 32191511 (S.D.
Ohio Dec. 30, 2002); 2003 WL 22423202
(S.D. Ohio Jan. 17, 2003) (Sayler Park),
the judge specifically disagreed with the
NMA v. Slater decision regarding the
ACHP’s authority to overturn agency
effect findings. These public comments
also argued that the Sayler Park decision
relieved the ACHP from amending the
Section 106 regulations.
The Sayler Park case involved a Corps
of Engineers (Corps) Clean Water Act
permit needed for the construction of a
barge loading facility. A group of
residents who lived near the proposed
facility sued the Corps alleging that it
had issued the permit in violation of
Section 106. While the Corps
determined that the undertaking would
not have an effect on historic properties,
the SHPO and others disagreed and
argued that the Corps should continue
the Section 106 process. The Corps
upheld its determination of no effect
and, based on the NMA v. Slater
decision, decided its Section 106
responsibilities were concluded. It then
issued the permit and this lawsuit
followed.
The Sayler Park court expressly
disagreed with the NMA v. Slater
holding that section 800.4(d)(2) of the
Section 106 regulations was substantive
and therefore beyond the scope of the
ACHP’s authority. As explained above,
that section required an agency to move
to the next step of the Section 106
process if, among other things, the
ACHP and/or SHPO/THPO disagreed
with its finding that no historic
properties would be affected by the
undertaking. The court in Sayler Park
held that this provision of the
regulations was not substantive because,
rather than restraining the agency’s
ability to act, it merely added a layer of
consultation (‘‘* * * no matter the
process, the agency never loses final
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authority to make the substantive
determination * * *’’).
The ACHP presented a similar
argument to the NMA v. Slater judge.
The ACHP continues to believe that
neither this provision nor the similar
one regarding ‘‘no adverse effects’’ (nor
any other provisions of the regulations
for that matter) were substantive. None
of these provisions imposed an outcome
on a Federal agency as to how it would
decide whether or not to approve an
undertaking. They merely provided a
process that assured that the Federal
agency took into account the effects of
the undertaking on historic properties.
They did not impose in any way
whatsoever how such consideration
would affect the final decision of the
Federal agency on the undertaking.
They did not provide anyone with a
veto power over an undertaking. See 65
FR 77698, 77715 (Dec. 12, 2000).
While the ACHP still disagrees with
the NMA v. Slater partial invalidation of
sections 800.4(d)(2) and 800.5(c)(3), it
nevertheless believes it must proceed
with the amendments in this
rulemaking. The NMA v. Slater court
(the D.C. District Court) has direct
jurisdiction over the ACHP and has
issued specific orders (1) partially
invalidating the provisions that are the
main subject of these amendments and
(2) remanding these matters to the
ACHP for action consistent with its
decisions. Moreover, as opposed to the
situation in the Sayler Park cases, the
ACHP was a party before the court in
the NMA cases. The ACHP is not
confronted with conflicting orders from
different courts. Under these
circumstances, the ACHP did not
believe it had the option of ignoring the
NMA v. Slater and NMA v. Fowler
decisions and orders, despite the
ACHP’s disagreement with them. It
therefore has proceeded with this
rulemaking, which now has culminated
with the amendments described herein.
Sections 800.4(d) and 800.5(c)—Review
of ‘‘No Historic Properties Affected’’ and
‘‘No Adverse Effect’’ Findings
Make the stipulation regarding ‘‘no
historic properties affected’’ consistent
with that regarding ‘‘no adverse effect’’
objections, and direct an agency and
SHPO/THPO to continue to consult
when there is disagreement with an
agency’s determination, as opposed to
requiring automatic referral to the
ACHP. It was not the purpose of the
ACHP to foreclose the opportunity of
Federal agencies and SHPO/THPOs to
attempt to work out their differences
regarding this finding. Therefore, the
amendments now explicitly state that,
upon disagreement, Federal agencies

Federal Register / Vol. 69, No. 128 / Tuesday, July 6, 2004 / Rules and Regulations
‘‘shall either consult with the objecting
party to resolve the disagreement, or
forward the finding and supporting
documentation to the Council’’ for
review. See Section 800.4(d)(1)(ii).
If the option is invoked by the ACHP
to require decisions from agency heads
in other than very rare instances, the
work of Federal agencies could be
seriously impeded (particularly those
agencies with multi-member agency
heads like the FCC). Even if used
sparingly, this would delay the
deployment of needed service to the
public, and could also delay FCC
consideration of other important issues
of telecommunications policy having no
historic preservation implications. If the
ACHP concludes that these provisions
are necessary and within its statutory
authority, we urge the ACHP to invoke
the proposed rules sparingly with a
view toward requiring a response from
agency heads only in cases presenting
the most significant questions of law or
policy or having such magnitude as to
potentially cause the destruction of, or
other very significant impact on,
historic properties. The ACHP believes
it has the legal authority to issue
comments on agency effect findings to
the heads of agencies. Among other
things, the statutory language of Section
106 specifies that ‘‘[t]he head of any
such Federal agency shall afford the
Advisory Council on Historic
Preservation * * * a reasonable
opportunity to comment with regard to
such undertaking.’’ 16 U.S.C. 470f
(emphasis added). A more than
reasonable interpretation of that
statutory language would indicate that
the ACHP could provide its opinion on
the effects of an undertaking to the head
of an agency. Now that such ACHP’s
opinions on effects are advisory, this
could be the ACHP’s last reasonable
opportunity to comment on the
undertaking within the Section 106
process. Nevertheless, in response to
this and other similar comments, the
ACHP has changed the proposed
amendments so that the head of an
agency can delegate the duty of
responding to the ACHP’s opinions on
effects to the agency’s Senior Policy
Official. The Senior Policy Official, as
now defined in the Section 106
regulations, is the senior policy level
official designated by the head of the
agency pursuant to Section 3(e) of
Executive Order 13287. In addition, the
final amendments provide that ACHP
decisions to issue opinions to heads of
agencies must be guided by the criteria
of appendix A to the regulations.
In consultations where the ACHP has
entered the process, there appears to be
no good reason to allow the ACHP to
object and appeal to itself. Doing so
merely adds unnecessary expense and
delay to an already overly burdensome
process. * * * If the ACHP desires to
object to the finding, it should do so and
communicate its comments to the
agency within the original 30-day
review period. The ACHP has changed
the proposed amendments in response
to this and other similar comments. The
amendments regarding effect findings,
as originally proposed, could allow the
ACHP to object twice to Federal agency
findings of effect: once during the initial
30-day period for parties to review the
finding, and a second time once the
agency finalized its finding and, upon
objection, needed to refer the matter to
the ACHP for an advisory opinion
within a separate review period. This
could have allowed the ACHP to object
in the initial period and then object
again, thereby giving the ACHP two
independent opportunities to review
and object to the finding. This was not
intended. The amendments were edited
so that if the ACHP provides a written
objection to the agency within the initial
30-day review period, the agency does
not need to refer the same matter to the
ACHP for the ‘‘second’’ review.
However, the ACHP written objection in
the initial 30-day period would be
subject to the same conditions that
would have applied for the ‘‘second’’
referral (e.g., ACHP discretion to send
the opinion to the head of the agency;
and requirement that a response come
from the agency head or the Senior
Policy Official if the matter is sent to the
head of the agency).
The ACHP is not required to respond
to frivolous or unfounded objections, or
in fact to objections of any kind, but as
written in these amendments, the full
30-day delay from the filing of such
objections is automatic and
unavoidable. In order to limit
unnecessary objections and minimize
wasteful delay, objections that trigger a
30-day review ought to be limited to
written objections that assert and
substantiate a substantial likelihood of
significant adverse effect, consisting of
damage or destruction to a highly
important historic property. Another
proposed idea is to add a process for
agencies or applicants to dismiss
insufficiently supported objections. The
ACHP disagrees. While the ACHP may
(and does) disagree with certain SHPO/
THPO objections from time to time, it
does not believe such objections are
frivolous or unfounded. Moreover, with
regard to objections to ‘‘no adverse
effect’’ findings, the ACHP has changed
the proposed amendments so that the
default time period for ACHP response
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40547
is 15 days. An objection that is frivolous
or unfounded would, at worst, only
cause a 15 day delay in the process. The
documentation that agencies are already
required to provide the ACHP would
adequately show the seriousness (or
lack thereof) of objections. Particularly
with regard to the idea of a motion to
dismiss process, the ACHP also does not
believe that adding such an additional
layer of process would achieve much in
terms of saving time or providing for
predictability. As the comment itself
points out, time (the comment suggests
ten days) would be needed for the
ACHP to consider and dispose of such
motions to dismiss, not to mention the
time for the agency or applicant to draft
and provide the ACHP with the motion
itself. In addition, this additional layer
of process would provide a further area
of potential, time-consuming litigation
for those who want to challenge an
ACHP’s decision to dismiss their
objection. Moreover, inserting this
motion to dismiss process into the
regulations would further clutter what
many industry commenting parties
deem to be an overly complicated
process. Finally, the comment provides
no basis for limiting the analysis to
‘‘significant’’ adverse effects or ‘‘highly
important’’ historic properties. As
explained in the preambles to previous
iterations of the Section 106 regulations
and case law, the ACHP believes it has
properly defined the ‘‘adverse effects’’
that should be considered in the Section
106 process, and properly defined the
scope of ‘‘historic properties’’ to be
considered in the process. See NMA v.
Slater.
The proposal exceeds the standards
explained in the NMA v. Slater case, in
that it imposes a further procedural
requirement, after the agency has made
a determination of effect, which
additional requirement is obviously
designed to put pressure on the agency
to reconsider or reverse its decision. The
ACHP disagrees. The amendments do
not exceed the standards explained in
the NMA v. Slater case. The court
partially invalidated sections 800.4(d)(2)
and 800.5(c)(3) insofar as they forced an
agency to proceed to the next step of the
process when the ACHP objected to
such agency’s effect finding, because the
court viewed this as the ACHP
effectively reversing the agency’s
substantive effect findings. The
amendments make it clear that the
ACHP’s opinions on effect findings are
not binding on the agency and that only
the agency can reverse its own findings.
If the agency disagrees with the ACHP’s
opinion as to whether there is an effect
or an adverse effect, the agency

40548 Federal Register / Vol. 69, No. 128 / Tuesday, July 6, 2004 / Rules and Regulations
responds to the ACHP opinion and is
done with the Section 106 process.
The ACHP should be required to keep
and report statistics, as a part of its
annual report, on the number of times
that federal agencies have bypassed the
Section 106 process by maintaining
initial findings of no effect and no
adverse effect despite SHPO/THPO and
ACHP objections. This and similar
comments reflected the opinion that
certain Federal agencies, knowing that
the ACHP could no longer ‘‘overturn’’
their findings of effect, would take
advantage of the situation and be more
willing to make questionable findings of
‘‘no historic properties affected’’ or ‘‘no
adverse effects.’’ The ACHP has changed
the proposed amendments so that they
now include a requirement for the
ACHP to keep track of how agencies
respond to ACHP opinions regarding
effects, and make a report of such data
available to the public. This will help
the ACHP in overseeing the Section 106
process. The ACHP intends to use this
information in order to, among other
things, bring any recurring problems to
the heads of the relevant agencies and
suggest ways in which they can improve
the effectiveness, coordination, and
consistency of their policies and
programs with those of the NHPA. See
16 U.S.C. 470j(a)(6). The ACHP decided
that, in order to present a fuller and
more accurate picture, the information
to be collected must include not only
the occasions where an agency proceeds
in disagreement with the ACHP, but
also those occasions where an agency
changes its finding in accordance with
the ACHP advice. The ACHP will also
keep track of the instances where the
ACHP decides to not respond to an
agency referral of an objection. Finally,
while the ACHP will maintain
discretion as to how it makes this
information available to the public, its
intent is to be flexible in using
mechanisms such as its web-site or
other means. The ACHP will not require
members of the public to file Freedom
of Information Act requests in order to
get that information.
While there is great value in a process
that would allow time for the ACHP to
comment to the head of a federal agency
where the issue warrants, many of the
review requests that the ACHP will
receive will not warrant such attention.
In the interest of streamlining the
compliance process, a 15-day review
period for ‘‘no adverse effect’’
determinations is adequate for most of
these requests, and an amendment
could provide for a 30-day review
period in certain situations. Specific
criteria, such as those contained in
Appendix A of the current regulations,
are needed to provide a threshold
between standard staff review and full
ACHP involvement. The ACHP received
this and other similar comments. In
response, the ACHP decided to change
the amendments so that when it
receives a referral for review of a ‘‘no
adverse effect’’ objection, the default
time period for such review is 15 days.
If the ACHP deems that it needs more
time, it can extend the review period an
additional 15 days so long as it notifies
the agency. This allows simple or weak
objections to be dispatched sooner,
while also allowing the ACHP staff and/
or membership to better manage their
workload so that they can dedicate the
necessary time to properly review and
respond to objections that present more
significant and complex issues. The
ACHP does not believe that the 15
additional days, when actually invoked
by the ACHP, would seriously affect
project planning and could be
accommodated by agencies in their
establishment of the project review and
approval schedule. Finally, in response
to this and similar comments, the ACHP
changed the amendments so that an
ACHP decision to send its opinion to
the head of an agency must be guided
by appendix A of the regulations.
At the very least, agencies should be
required to copy SHPOs on the
documentation submitted to the ACHP
when an objection is referred to the
ACHP. Absent this, the SHPOs will have
no assurance that their position has
been accurately represented to the
ACHP or that the documentation
provided by the agency is the same as
that submitted to the SHPO for review—
or, for that matter, that the project has
been forwarded to the ACHP. In
response to this and other similar
comments, the ACHP changed the
proposed amendments so that agencies
are now required to notify consulting
parties (which includes SHPO/THPOs)
that a referral has been made to the
ACHP and to make the information
packet sent to the ACHP available to the
public. It is the understanding of the
ACHP that many agencies already
proceed in this way anyhow.
Provide for Tribes and THPOs to
request additional time for review,
rather than allowing the federal agency
to wait out an absolute cut-off time of
thirty (30) days. The ACHP believes that
the amendments strike an appropriate
balance between the need for an
adequate time period for review, and the
need for projects decisions to be made
in a timely manner and within a
predictable time frame. However, the
ACHP strongly encourages Federal
agencies to facilitate effective tribal
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involvement by being receptive to tribal
requests for additional time for review.
Strike ‘‘assume concurrence with the
agency’s finding’’ and replace with
‘‘proceed in accordance with the agency
official’s original finding.’’ No reason for
the agency to assume anything about the
ACHP’s position due to its silence. The
ACHP agrees that the terminology
regarding ‘‘assuming concurrence’’ may
not necessarily reflect the position of
the entity that fails to respond within
the regulatory time frame. Accordingly,
that terminology has been removed.
Nevertheless, the legal and procedural
effect of a failure to respond within the
provided time frame remains exactly the
same as before (e.g., ‘‘the agency
official’s responsibilities under section
106 are fulfilled’’ if neither the ACHP
nor the SHPO/THPO object to a no
historic properties affected finding
within the 30-day review period).
Concerned about the requirement that
the agency provide ‘‘evidence’’ that the
agency considered the ACHP’s opinion.
We understand the need of the agency
to provide a responsive reply to the
ACHP, however the Department finds
this requirement confusing, overly
burdensome, and unjustified. The ACHP
clarifies that this requirement for
providing ‘‘evidence’’ simply means
that the agency’s written response must
explain the agency’s rationale for either
following or not following the ACHP
opinion so that the document reflects
the fact that the agency actually
considered the ACHP opinion.
Require the agency to prepare
additional documentation for the
ACHP’s review, beyond the existing
requirements of 36 CFR 800.11(d)-(e).
This should specifically include
responses from the agency to any
objections raised by a consulting party
or the SHPO/THPO, for both ‘‘no
historic properties affected’’ and ‘‘no
adverse effect’’ findings. Several
comments raised this issue. However, it
has been the ACHP’s experience that the
current documentation requirements at
the cited provision of the regulations are
sufficient for the ACHP to carry out an
informed and adequate review.
Moreover, it is the ACHP’s experience
that in most, if not all, cases of objection
referrals to the ACHP, the Federal
agencies explain why they believe the
objection is incorrect. This explanation
necessarily responds to the objection
itself.
If the SHPO/THPO or a consulting
party disagrees with the agency’s
determination regarding effects, require
the finding to be certified by the Federal
Preservation Officer, and/or another
agency official who is a historic
preservation professional, meeting the

Federal Register / Vol. 69, No. 128 / Tuesday, July 6, 2004 / Rules and Regulations
Secretary of the Interior’s Professional
Qualifications Standards, 62 FR 33707
(June 20, 1997), prior to sending the
finding to the ACHP for review. The
ACHP declined to follow the
recommendation in this comment.
Many Federal agencies have historic
preservation professionals in their staff
who review and/or develop agency
findings in the Section 106 process. In
addition, other professionals at the
SHPO/THPO offices, and sometimes the
ACHP, also review the findings in the
course of the normal process.
Accordingly, the ACHP did not believe
that the delay that could be created by
such an additional layer of process
would be justified.
Actual comments should be required
from the ACHP to help rule on effect
disagreements. The ACHP simply does
not have the staff resources that would
be needed to respond to every objection
referred to it regardless of merit.
Clarification of the 30-Day Review
Period for No Adverse Effect Findings
Federal agencies should not have to
wait until the end of the 30-day period
if the agency obtains the agreement of
all the consulting parties within that
period. This concept was rejected since
there was a concern that it could
motivate agencies to allow fewer
consulting parties into the process in
order to increase the chances of having
a shorter review period. The ACHP also
wanted to provide those who may have
been denied consulting party status or
who may not have found out about the
undertaking until late, a better
opportunity to bring their concerns to
the ACHP.
Conferring authority to trigger ACHP
review on every consulting party would
be counterproductive and inefficient
since the mere assertion of a
disagreement, regardless of its merit,
could result in the elevation of the
dispute to the ACHP. This would create
delays. The proposed amendments do
not change this aspect of the process.
Assessing the merit (or lack thereof) of
disagreements would insert uncertainty
in the process. Once the ACHP has
received a referral of a disagreement, it
could dispose of those which it deems
to have no merit with little delay.
Section 800.14(c)—Exemptions
Suggest that the ACHP provide a
specific mechanism that ensures
notification of and input from the
affected agency. The ACHP will notify
and consult with those agencies affected
by any exemption proposed by it.
Authorizing the ACHP to exempt
‘‘certain’’ arbitrary projects from Section
106 weakens the Act. The process for
exemptions retains the high standard
that has to be met by any program or
category of undertakings seeking an
exemption. Their potential effects upon
historic properties must be ‘‘foreseeable
and likely to be minimal or not adverse’’
and the exemption must be consistent
with the purposes of the NHPA. See 16
U.S.C. 470v and 36 CFR 800.14(c)(1).
Since the members of the ACHP are
presidential appointees, it would be
disingenuous to contend that political
partisanship would have no effect on
these exemptions. There also seems to
be a conflict of interest in the ACHP
proposing an exemption, and then
deciding on it. ‘‘Partisanship’’ plays no
role in these decisions. As stated above,
exemptions must meet high, nonpartisan
standards in order to be
adopted. See 16 U.S.C. 470v and 36 CFR
800.14(c)(1). Moreover, even without
the amendments, Federal agencies other
than the ACHP could propose
exemptions. Those Federal agencies are
led by presidential appointees. Finally,
under the ACHP’s operating procedures,
ACHP Federal agency members are not
permitted to vote on matters in which
their agency has a direct interest not
common to the other members.
The exemptions process should be
amended to include a procedure for
SHPOs/THPOs or other consulting
parties to request a determination from
ACHP that a specific undertaking that
would normally be exempt should be
reviewed. The ACHP believes this is
unnecessary. The exemptions
themselves, as adopted by the ACHP,
can contain such a process. Moreover,
the exemptions can be drafted so that
they place situations that could present
adverse effects beyond their scope.
Finally, the regulations allow the ACHP
to revoke exemptions. Section
800.14(c)(7). Those who believe an
exemption should be revoked can ask
the ACHP to do so under the cited
section.
If the ACHP is authorized to propose
and approve exemptions on its own
initiative, where will we turn with our
objections to these exemptions? The
consultation process regarding
exemptions has not changed. Those who
object to the exemptions can present
such objections to the ACHP. Much like
the rulemaking process, the fact that the
ACHP has submitted a proposal does
not necessarily mean that the ACHP will
adopt the proposal without changes or
adopt the proposal in the first place.
The ACHP will consider objections to
exemptions it proposes the same way it
will consider those regarding
exemptions other agencies propose.
The ACHP fails to make a persuasive
case as to why it needs additional
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40549
authority to search out and adopt
exemptions from Section 106. There is
no claim that the current regulation has
caused any particular problems, or has
been found inadequate in some way. If
a potential Section 106 exemption is
‘‘not * * * a high enough priority for
any single * * * agenc[y] to prompt it
to ask for an exemption or to ask for it
in a timely fashion,’’ it is not clear why
it should be a priority for the ACHP. As
opposed to most of the other agencies of
the Federal government, the ACHP has
a mission focused on historic
preservation matters and assisting other
agencies regarding such matters. Other
agencies have missions that are focused
on other matters. It is not surprising,
therefore, that their priorities are not
focused on historic preservation issues.
This does not mean, however, that such
issues are unimportant or not deserving
of the ACHP’s attention. If a program or
category of undertakings meet the
standards for an exemption, such
exemptions should be considered by the
ACHP whether or not the relevant
agency can focus its energies on the
issue. Also, due to its size and flatter
management structure, the ACHP can
address these issues more promptly.
Furthermore, the ACHP believes this
amendment appropriately and
responsibly promotes the goal of
environmental streamlining. Finally, as
stated in the NPRM, the ACHP is in an
unique position to identify cross-cutting
exemptions that could benefit several
agencies.
The ACHP should be required to keep
and report statistics, as a part of its
annual report, on the number and name
of project exemptions that it has
initiated. The ACHP does not see a
reason for such reporting considering
the fact that exemptions must be
published in the Federal Register before
they go into effect. See Section
800.14(c)(8).
This is an unreasonably indefinite
provision that short-circuits protection
of historic properties encouraged by
current regulations requiring Federal
agencies to propose exemptions
individually rather than in broad
classes. The proposed amendments will
inevitably result in failures to appreciate
unique characteristics of individual
properties subsumed in exempted
categories or affected by an
unacceptably undefined ‘‘certain types
of activities,’’ and therefore, a
significant erosion of preservation
standards. The amendments do not alter
the scope of possible exemptions (e.g.,
program or category of agency
undertakings). They also do not change
the high standards that exemptions
must meet. See 16 U.S.C. 470v and 36

40550 Federal Register / Vol. 69, No. 128 / Tuesday, July 6, 2004 / Rules and Regulations
CFR 800.14(c)(1). Finally, they do not
change the consultative process through
which proposed exemptions are
considered.
The rule does not allot a specific time
period for the THPOs/SHPOs to
comment on the proposed exemptions.
THPOs/SHPOs should be given the
same period of time to comment on
proposed exemptions as the ACHP. The
THPOs/SHPOs review and comment
period should occur prior to the ACHP
review and comment period so that the
ACHP may take into account the input
of the THPOs/SHPOs in their decisionmaking.
The exemptions process does
not specify a time period for THPO/
SHPOs to comment because different
exemptions, due to their varying
complexity and impact, may call for
widely different comment periods. The
process points to section 800.14(f),
which fleshes out the details of
consulting with tribes and specifies that
the agency official and the ACHP must
take tribal views into account in
reaching a final decision.
ACHP Review of Objections Within the
Process for Agency Use of the NEPA
Process for Section 106 Purposes
36 CFR 800.8(c)(3) states that the
‘‘Council shall notify the Agency
Official either that it agrees with the
objection, in which case the Agency
Official shall enter into consultation in
accordance with 800.6(b)(2) ...’’. This
appears to contradict the court decision
that the asserted power of the ACHP to
reverse Federal agency determinations
of effect exceeded the ACHP’s legal
authority under the Act. This was an
oversight. The ACHP agreed that the
referred section of the regulations
needed to be edited to better comport
with the NMA v. Slater decision and
therefore added an amendment to
incorporate into that section changes
similar to those incorporated by the
amendments to the review process for
effect findings at sections 800.4(d) and
800.5(c).
Section 800.16(y)—State Permits Under
Delegated Programs
It is difficult for us to understand the
basis for the proposed rule change given
that the rule’s definition of
‘‘undertaking’’ was taken verbatim from
the 1992 revisions to the NHPA. With
regard to licensing, the appellant in the
NMA v. Fowler case argued that Section
106, by its own terms, only applied to
‘‘Federal . . . agenc[ies] having
authority to license any undertaking.’’
16 U.S.C. 470f. Accordingly, it argued
that no matter how broadly Congress
defined the term undertaking, Section
106 only deals with the subset of
undertakings that actually receive a
license from a Federal agency, as
opposed to a State agency. The
appellants, and the court, saw Section
106 itself as placing a limit on the
‘‘undertakings’’ subject to its provision.
The court also believed that the case of
Sheridan Kalorama Historical
Association v. Christopher, 49 F.3d 750
(D.C. Cir. 1995), barred it from a
different interpretation. In that opinion,
the court held that ‘‘however broadly
the Congress or the [ACHP] define
‘‘undertaking,’’ Section 106 applies only
to: (1) ‘‘any Federal agency having
* * * jurisdiction over a proposed
Federal or federally assisted
undertaking’; and (2) ‘‘any Federal
* * * agency having authority to
license any undertaking.’’’ Although the
ACHP disagrees with the NMA v.
Fowler interpretation of the NHPA, the
ACHP is bound by the court’s decision.
The ACHP should disclose contrary
legal interpretations. This comment
referred to the case of Indiana Coal
Council v. Lujan, 774 F. Supp. 1385
(D.D.C. 1991), vacated in part and
appeal dismissed, Nos. 91–5397, 91–
5405, 91–5406, 1993 U.S. App. LEXIS
14561, 1993 WL 184022 (D.C. Cir. Apr.
26, 1993), appeal dismissed, No. 91–
5398 (D.C. Cir. Dec. 2, 1993). In that
case, the court held that permits issued
by State agencies pursuant to a
delegated authority from the Office of
Surface Mining were undertakings
requiring compliance with Section 106.
Soon after that decision was issued,
Congress amended the NHPA definition
of ‘‘undertaking’’ to specifically include
‘‘those subject to State or local
regulation administered pursuant to a
delegation or approval by a Federal
agency.’’ 16 U.S.C. 470w(7). Some,
including the ACHP, argue that
Congress did this to codify the ruling in
the Indiana Coal Council case. See 138
Cong. Rec. S17681 (Oct. 8, 1992). In fact,
the Indiana Coal Council, the National
Coal Association, and the American
Mining Congress asked the D.C. Circuit
to dismiss their appeal of the Indiana
Coal Council case based on the 1992
amendment to the NHPA definition of
‘‘undertaking.’’ As a result, the appeal
was dismissed and the decision vacated
in part by the D.C. Circuit because the
1992 amendments made the case moot.
A new section should be added to the
regulations that specifically addresses
‘‘State and Local Delegated Programs.’’
The ACHP should provide Federal
agencies and the public with clear and
unambiguous language concerning these
programs and their level of
consideration, consistent with the
Federal Court ruling, under Section 106
of the Act. As stated in the NPRM, the
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ACHP believes that Federal agency
approval of, amendments or revisions
to, and funding of delegated programs
trigger Section 106 review. The ACHP
does not believe a new section in the
regulations would be required for such
programs because it believes the already
existing processes in those regulations
can be used to adequately cover such
Federal agency approvals and/or
funding. Specifically, the delegated
programs could be covered by
Programmatic Agreements under section
800.14(b) of the regulations. The ACHP
looks forward to working with the
Department of the Interior, the
Environmental Protection Agency, and
other agencies in developing such
agreements.
The proposed changes to the
regulation itself at 36 CFR 800.16(y) are
appropriate and consistent with the D.C.
Circuit’s opinion in NMA v. Fowler.
However, the Preamble discussion of
the rule is inappropriate (decision on
whether there is an undertaking is up to
the agency), improperly characterizes
the nature of the Federal government’s
role in annual funding of State programs
(while initial approval may be an
undertaking, it is a leap to say each
renewal, assessment or funding event
will trigger Section 106), and is
inconsistent with the ACHP’s official
position set forth in its brief before the
court (regarding the agency having the
final word on whether it has an
undertaking). The discussion is not
inappropriate since, while procedurally
the agency makes the determination as
to whether it has an undertaking, the
ACHP has the right (and the expertise)
to provide its opinion on that issue.
Furthermore, the Office of Surface
Mining (OSM) has long acknowledged
that its approval, amendment, and at
least the initial funding of Statedelegated
programs triggers Section 106
review. See Indiana Coal Council, 774
F.Supp. at 1400 (this portion of the
opinion was not vacated by the D.C.
Circuit). The ACHP looks forward to
working with the affected agencies,
historic preservation officers, industries,
and other stakeholders in reaching an
agreement for handling these programs
under Section 106.
Objects to the suggestion that ‘‘For
existing programs, this [compliance
with section 106] could occur during
renewal or periodic assessment of such
programs.’’ There will be no way to
know that the delegation includes
adequate and enforceable provisions
until after the ‘‘renewal or periodic
assessment’’ occurs at some uncertain
date years in the future. Waiting on
renewal or periodic reviews in such
instances means that untold damage to

Federal Register / Vol. 69, No. 128 / Tuesday, July 6, 2004 / Rules and Regulations
the Nation’s heritage will occur in the
intervening years. Improper delegations
must immediately be rescinded until
such time as the agency official has
properly complied with section 106 and
36 CFR Part 800. While the ACHP
desires to move quickly and reach
adequate agreements on these programs,
the ACHP does not have the authority
to rescind other agencies’ approvals of
programs. The idea of pursuing an
agreement at the moment of renewal or
reassessment (to cover a delegated
program as a whole) was mostly a
practical recommendation, so that
agencies that are nearing such stages
would take advantage of such occasions
(when they may be preparing to undergo
some form of review process anyhow) to
work on and resolve this issue.
Concerned with the ACHP’s
‘‘opinion’’ that Federal agency approval
and/or funding of such delegated
programs does require Section 106
compliance by the Federal agency, as
such programs are ‘‘undertakings’’
receiving Federal approval and/or
Federal funding. This appears as an
attempt to accomplish through the back
door what the ACHP has been barred by
the courts from doing through the front
door. The ACHP is not aware of any
court opinion barring its interpretation
of such Federal approval and funding
decisions as being undertakings subject
to Section 106. The D.C. Circuit
specifically mentioned this
interpretation, without ruling on it,
when it quoted the appellant’s brief:
‘‘For example, although the NMA
concedes that ‘[t]he Federal
government’s approval of a State’s
overall SMCRA permitting program may
arguably be an action subject to Section
106, because the federal government
contributes funds to the general
administration of state permitting
programs and approves those programs,’
it contends that individual state mining
permits do not fall within that section
since ‘the Federal government does not
retain the authority to approve or reject
any one mining project application.’’’ In
any event, OSM has long acknowledged,
and the U.S. District Court for the
District of Columbia has ruled, that
OSM approval, amendment, and at least
the initial funding of delegated
programs triggers Section 106 review.
See Indiana Coal Council, 774 F.Supp.
at 1400 (this portion of the opinion was
not vacated by the D.C. Circuit).
Section 106 reviews should definitely
be required for individual permits
issued by state agencies under
delegation by federal agencies. Our
cities and counties receive large
amounts of money wherein they are
allowed to issue permits under
delegation by federal agencies (e.g.,
HUD programs). The ACHP wants to
clarify that under certain Housing and
Urban Development (HUD) programs,
such as the Community Development
Block Grant (CDBG) program, Federal
statute specifically provides that States
or local agencies act on behalf of HUD
in meeting HUD’s Section 106
responsibilities. Those HUD grant
programs are not affected by the issue of
delegated programs being addressed in
these amendments, which pertain only
to regulatory and permitting programs.
Rulemaking Process
Urges ACHP to engage in consultation
with preservation stakeholders when
developing a revised draft of the
regulations, rather than drafting them
behind closed doors, as was done with
the current proposal. The ACHP
engaged in the consultation required by
the Administrative Procedure Act for
rulemaking. It published the proposed
amendments on the Federal Register
and provided the public with 30 days in
which to provide comments. In
response to requests, this period was
thereafter extended an additional 30
days. As reflected in this preamble, the
ACHP seriously considered all public
comments and, in response to those
comments, edited the proposed
amendments in several ways. Moreover,
the ACHP membership, composed by
representatives of various stakeholders
in the process (including Federal
agencies, the National Trust for Historic
Preservation, the National Conference of
State Historic Preservation Officers,
citizen members, a Native Hawaiian
organization representative and expert
members), fully vetted the proposed
amendments and changes to them. In
the end, as explained above, the ACHP
had to amend the regulations and
respond in a timely manner to the
court’s order. Moreover, it is important
to note that this rulemaking involved a
fairly limited scope of issues.
Miscellaneous Issues
Several public comments addressed
issues beyond the limited scope of this
rulemaking. Again, this rulemaking was
intended to respond primarily to the
issues raised by the NMA v. Slater and
NMA v. Fowler decisions regarding the
authority of the ACHP to overturn
agency effect determinations and the
issue of delegated programs. The ACHP
decided to respond to the following
comments, even though they were not
particularly germane to the present
rulemaking. The ACHP may consider
some of those issues in future
rulemakings.
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40551
If the dispute is over eligibility for
inclusion on the National Register, the
Keeper should be included in the
process. Several members of the public
made this comment. However, it is
unclear what was meant since the
Section 106 regulations already provide
for referral to the Keeper when an
agency and SHPO/THPO disagree
regarding the eligibility of a property for
listing on the National Register of
Historic Places. 36 CFR 800.4(c)(2). To
the extent that the comment advocates
that such referral be made when
consulting parties other than the SHPO/
THPO dispute a determination
regarding a property’s eligibility, the
ACHP disagrees. The practice of agency
and SHPO/THPO eligibility
determinations has been long establish
in practice and in law (see 36 CFR 63.3),
and there is no indication of such an
arrangement having presented problems
in the Section 106 process.
The ACHP rules contain no
significance or materiality limitations,
such as those contained in the National
Environmental Policy Act that limit
most of that statute’s key provisions
only to actions that might significantly
affect the environment. In contrast, the
ACHP Section 106 rules seek to require
agencies to examine all effects of any
intensity, whether or not the effects are
significant. Where there is an alteration
of a historic property, any diminishment
of any aspect of its historic integrity,
however measured and however great or
small, can support a finding of adverse
effect. While the NEPA statute itself
contains the limiting factors of ‘‘major’’
Federal actions and ‘‘significant’’
effects, the NHPA does not. Regardless,
the Section 106 regulations allow
agencies to weed out at the very start of
the process those undertakings that
generically would not affect historic
properties (Section 800.3(a)), and
provides a shortened process for those
undertakings that would not affect
historic properties within their area of
potential effects (Section 800.4(d)).
Opponents of the Section 4(f) review
process claimed its protections were
unnecessary because Section 106 was in
place. Now the opponents of
responsible procedure aim to
significantly weaken Section 106.
Section 4(f) could still be eliminated
when the Transportation Act comes
before Congress in January. If Section
4(f) is removed and Section 106 severely
weakened, there will be no meaningful
protection for significant historic
resources. Several members of the
public repeated this comment verbatim.
The ACHP does not believe the
amendments in this rulemaking
‘‘significantly weaken’’ the Section 106

40552 Federal Register / Vol. 69, No. 128 / Tuesday, July 6, 2004 / Rules and Regulations
process. Moreover, as of the date of this
notice, Congress has not taken action on
the legislation mentioned in these
comments. Various versions of the bill
are under consideration by the
Congress. Due to the uncertainty of the
actual legislation that may or may not be
passed by Congress, the ACHP can only
speculate on the eventual relationship
between Section 106 and Section 4(f).
Once Congress and the President have
acted on the legislation, the ACHP will
be able to assess the situation and
determine whether any future regulatory
action is needed.
Restrict the ability of agencies to
exclude consulting parties in order to
silence objections: This could be
accomplished, for example, by allowing
the SHPO/THPO or the ACHP to invite
a consulting party to participate in the
Section 106 review if the federal agency
has rejected the party’s request. Several
members of the public endorsed this
concept. In light of the limited scope of
this rulemaking and the fact that this
issue was not identified in the NPRM,
the ACHP does not believe it is
appropriate to address this issue in the
final rulemaking. The ACHP also notes
that the current provision was the
subject of extensive comment and
negotiation in the previous rulemaking
and any alteration of it would require
thorough public airing.
Very concerned with the ACHP’s
rules extending the protections of
Section 106 to properties only
‘‘potentially eligible’’ for the National
Register of Historic Places. Only those
properties actually listed on the
National Register or formally
determined eligible for such listing by
the Keeper should be within the scope
of Section 106. This very same issue
was raised in the NMA v. Slater case.
That court sided with the ACHP’s
interpretation of the NHPA that the
properties within the scope of Section
106 include those that meet the criteria
for listing on the National Register, even
though they have not been formally
determined eligible by the Keeper and
that the process for identifying them in
the Section 106 regulations is
appropriate. As the ACHP stated in a
previous preamble to the Section 106
regulations (which the court specifically
cited approvingly in its decision):
‘‘Well-established Department of the
Interior regulations regarding formal
determinations of eligibility specifically
acknowledge the appropriateness of
section 106 consideration of properties
that Federal agencies and SHPOs
determine meet the National Register
criteria. See 36 CFR 63.3. * * * Not
only does the statute allow this
interpretation, but it is the only
interpretation that reflects (1) the reality
that not every single acre of land in this
country has been surveyed for historic
properties, and (2) the NHPA’s intent to
consider all properties of historic
significance. It has been estimated that
of the approximately 700 million acres
under the jurisdiction or control of
Federal agencies, more than 85 percent
of these lands have not yet been
investigated for historic properties. Even
in investigated areas, more than half of
identified properties have not been
evaluated against the criteria of the
National Register of Historic Places.
These estimates represent only a part of
the historic properties in the United
States since the section 106 process
affects properties both on Federal and
non-Federal land. Finally, the fact that
a property has never been considered by
the Keeper neither diminishes its
importance nor signifies that it lacks the
characteristics that would qualify it for
the National Register.’’ 65 FR 77705.
IV. Impact Analysis
The Regulatory Flexibility Act
The ACHP certifies that the
amendments will not have a significant
economic impact on a substantial
number of small entities. The
amendments in their proposed version
only impose mandatory responsibilities
on Federal agencies. As set forth in
Section 106 of the NHPA, the duties to
take into account the effect of an
undertaking on historic resources and to
afford the ACHP a reasonable
opportunity to comment on that
undertaking are Federal agency duties.
Indirect effects on small entities, if any,
created in the course of a Federal
agency’s compliance with Section 106
of the NHPA, must be considered and
evaluated by that Federal agency.
The Paperwork Reduction Act
The amendments do not impose
reporting or record-keeping
requirements or the collection of
information as defined in the Paperwork
Reduction Act.
The National Environmental Policy Act
It is the determination of the ACHP
that this action is not a major Federal
action significantly affecting the
environment. Regarding the National
Environmental Policy Act (NEPA)
documents for the rule that is being
amended, as a whole, please refer to our
Notice of Availability of Environmental
Assessment and Finding of No
Significant Impact at 65 FR 76983
(December 8, 2000). A supplemental
Environmental Assessment and Finding
of No Significant Impact are not deemed
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necessary because (1) these amendments
do not present substantial changes in
the rule that are relevant to
environmental concerns; (2) most of the
amendments are a direct result of a
court order; and (3) there are no
significant new circumstances or
information relevant to environmental
concerns and bearing on the rule or its
impacts.
Executive Orders 12866 and 12875
The ACHP is exempt from compliance
with Executive Order 12866 pursuant to
implementing guidance issued by the
Office of Management and Budget’s
(OMB) Office of Information and
Regulatory Affairs in a memorandum
dated October 12, 1993. The ACHP also
is exempt from the documentation
requirements of Executive Order 12875
pursuant to implementing guidance
issued by the same OMB office in a
memorandum dated January 11, 1994.
The Unfunded Mandates Reform Act
The amendments do not impose
annual costs of $100 million or more,
will not significantly or uniquely affect
small governments, and are not a
significant Federal intergovernmental
mandate. The ACHP thus has no
obligations under sections 202, 203, 204
and 205 of the Unfunded Mandates
Reform Act.
Executive Order 12898
The amendments do not cause
adverse human health or environmental
effects, but, instead, seek to avoid
adverse effects on historic properties
throughout the United States. The
participation and consultation process
established by the Section 106 process
seeks to ensure public participation—
including by minority and low-income
populations and communities—by those
whose cultural heritage, or whose
interest in historic properties, may be
affected by proposed Federal
undertakings. The Section 106 process
is a means of access for minority and
low-income populations to participate
in Federal decisions or actions that may
affect such resources as historically
significant neighborhoods, buildings,
and traditional cultural properties. The
ACHP considers environmental justice
issues in reviewing analysis of
alternatives and mitigation options,
particularly when Section 106
compliance is coordinated with NEPA
compliance.
Submission to Congress and the
Comptroller General
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement

Federal Register / Vol. 69, No. 128 / Tuesday, July 6, 2004 / Rules and Regulations
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. The Council will
submit a report containing this rule and
other required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
Register. This rule is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2). This rule
will be effective August 5, 2004.
V. Text of Amendments
List of Subjects in 36 CFR Part 800
Administrative practice and
procedure, Historic preservation,
Indians, Inter-governmental relations,
Surface mining.
■ For the reasons stated in the preamble,
the Advisory Council on Historic
Preservation amends 36 CFR part 800 as
set forth below:
PART 800—PROTECTION OF
HISTORIC PROPERTIES
■ 1. The authority citation for part 800
continues to read as follows:
Authority: 16 U.S.C. 470s.
■ 2. Amend § 800.4 by revising
paragraph (d) to read as follows:
§ 800.4 Identification of historic properties.
* * * * *
(d) Results of identification and
evaluation.
(1) No historic properties affected. If
the agency official finds that either there
are no historic properties present or
there are historic properties present but
the undertaking will have no effect
upon them as defined in § 800.16(i), the
agency official shall provide
documentation of this finding, as set
forth in § 800.11(d), to the SHPO/THPO.
The agency official shall notify all
consulting parties, including Indian
tribes and Native Hawaiian
organizations, and make the
documentation available for public
inspection prior to approving the
undertaking.
(i) If the SHPO/THPO, or the Council
if it has entered the section 106 process,
does not object within 30 days of receipt
of an adequately documented finding,
the agency official’s responsibilities
under section 106 are fulfilled.
(ii) If the SHPO/THPO objects within
30 days of receipt of an adequately
documented finding, the agency official
shall either consult with the objecting
party to resolve the disagreement, or
forward the finding and supporting
documentation to the Council and
request that the Council review the
finding pursuant to paragraphs
(d)(1)(iv)(A) through (d)(1)(iv)(C) of this
section. When an agency official
forwards such requests for review to the
Council, the agency official shall
concurrently notify all consulting
parties that such a request has been
made and make the request
documentation available to the public.
(iii) During the SHPO/THPO 30 day
review period, the Council may object to
the finding and provide its opinion
regarding the finding to the agency
official and, if the Council determines
the issue warrants it, the head of the
agency. A Council decision to provide
its opinion to the head of an agency
shall be guided by the criteria in
appendix A to this part. The agency
shall then proceed according to
paragraphs (d)(1)(iv)(B) and (d)(1)(iv)(C)
of this section.
(iv) (A) Upon receipt of the request
under paragraph (d)(1)(ii) of this
section, the Council will have 30 days
in which to review the finding and
provide the agency official and, if the
Council determines the issue warrants
it, the head of the agency with the
Council’s opinion regarding the finding.
A Council decision to provide its
opinion to the head of an agency shall
be guided by the criteria in appendix A
to this part. If the Council does not
respond within 30 days of receipt of the
request, the agency official’s
responsibilities under section 106 are
fulfilled.
(B) The person to whom the Council
addresses its opinion (the agency
official or the head of the agency) shall
take into account the Council’s opinion
before the agency reaches a final
decision on the finding.
(C) The person to whom the Council
addresses its opinion (the agency
official or the head of the agency) shall
then prepare a summary of the decision
that contains the rationale for the
decision and evidence of consideration
of the Council’s opinion, and provide it
to the Council, the SHPO/THPO, and
the consulting parties. The head of the
agency may delegate his or her duties
under this paragraph to the agency’s
senior policy official. If the agency
official’s initial finding will be revised,
the agency official shall proceed in
accordance with the revised finding. If
the final decision of the agency is to
affirm the initial agency finding of no
historic properties affected, once the
summary of the decision has been sent
to the Council, the SHPO/THPO, and
the consulting parties, the agency
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40553
official’s responsibilities under section
106 are fulfilled.
(D) The Council shall retain a record
of agency responses to Council opinions
on their findings of no historic
properties affected. The Council shall
make this information available to the
public.
(2) Historic properties affected. If the
agency official finds that there are
historic properties which may be
affected by the undertaking, the agency
official shall notify all consulting
parties, including Indian tribes or
Native Hawaiian organizations, invite
their views on the effects and assess
adverse effects, if any, in accordance
with § 800.5.
■ 3. Amend § 800.5 by revising
paragraphs (c)(1), (2) and (3) to read as
follows:
§ 800.5 Assessment of adverse effects.
* * * * *
(c) * * *
(1) Agreement with, or no objection to,
finding. Unless the Council is reviewing
the finding pursuant to papagraph (c)(3)
of this section, the agency official may
proceed after the close of the 30 day
review period if the SHPO/THPO has
agreed with the finding or has not
provided a response, and no consulting
party has objected. The agency official
shall then carry out the undertaking in
accordance with paragraph (d)(1) of this
section.
(2) Disagreement with finding.
(i) If within the 30 day review period
the SHPO/THPO or any consulting party
notifies the agency official in writing
that it disagrees with the finding and
specifies the reasons for the
disagreement in the notification, the
agency official shall either consult with
the party to resolve the disagreement, or
request the Council to review the
finding pursuant to paragraphs (c)(3)(i)
and (c)(3)(ii) of this section. The agency
official shall include with such request
the documentation specified in
§ 800.11(e). The agency official shall
also concurrently notify all consulting
parties that such a submission has been
made and make the submission
documentation available to the public.
(ii) If within the 30 day review period
the Council provides the agency official
and, if the Council determines the issue
warrants it, the head of the agency, with
a written opinion objecting to the
finding, the agency shall then proceed
according to paragraph (c)(3)(ii) of this
section. A Council decision to provide
its opinion to the head of an agency
shall be guided by the criteria in
appendix A to this part.
(iii) The agency official should seek
the concurrence of any Indian tribe or

40554 Federal Register / Vol. 69, No. 128 / Tuesday, July 6, 2004 / Rules and Regulations
Native Hawaiian organization that has
made known to the agency official that
it attaches religious and cultural
significance to a historic property
subject to the finding. If such Indian
tribe or Native Hawaiian organization
disagrees with the finding, it may
within the 30 day review period specify
the reasons for disagreeing with the
finding and request the Council to
review and object to the finding
pursuant to paragraph (c)(2)(ii) of this
section.
(3) Council review of findings.
(i) When a finding is submitted to the
Council pursuant to paragraph (c)(2)(i)
of this section, the Council shall review
the finding and provide the agency
official and, if the Council determines
the issue warrants it, the head of the
agency with its opinion as to whether
the adverse effect criteria have been
correctly applied. A Council decision to
provide its opinion to the head of an
agency shall be guided by the criteria in
appendix A to this part. The Council
will provide its opinion within 15 days
of receiving the documented finding
from the agency official. The Council at
its discretion may extend that time
period for 15 days, in which case it shall
notify the agency of such extension
prior to the end of the initial 15 day
period. If the Council does not respond
within the applicable time period, the
agency official’s responsibilities under
section 106 are fulfilled.
(ii) (A) The person to whom the
Council addresses its opinion (the
agency official or the head of the
agency) shall take into account the
Council’s opinion in reaching a final
decision on the finding.
(B) The person to whom the Council
addresses its opinion (the agency
official or the head of the agency) shall
prepare a summary of the decision that
contains the rationale for the decision
and evidence of consideration of the
Council’s opinion, and provide it to the
Council, the SHPO/THPO, and the
consulting parties. The head of the
agency may delegate his or her duties
under this paragraph to the agency’s
senior policy official. If the agency
official’s initial finding will be revised,
the agency official shall proceed in
accordance with the revised finding. If
the final decision of the agency is to
affirm the initial finding of no adverse
effect, once the summary of the decision
has been sent to the Council, the SHPO/
THPO, and the consulting parties, the
agency official’s responsibilities under
section 106 are fulfilled.
(C) The Council shall retain a record
of agency responses to Council opinions
on their findings of no adverse effects.
The Council shall make this information
available to the public.
* * * * *
■ 4. Amend § 800.8 by revising
paragraph (c)(3) to read as follows:
§ 800.8 Coordination with the National
Environmental Policy Act.
* * * * *
(c) * * *
(3) Resolution of objections. Within 30
days of the agency official’s referral of
an objection under paragraph (c)(2)(ii) of
this section, the Council shall review
the objection and notify the agency as to
its opinion on the objection.
(i) If the Council agrees with the
objection:
(A) The Council shall provide the
agency official and, if the Council
determines the issue warrants it, the
head of the agency with the Council’s
opinion regarding the objection. A
Council decision to provide its opinion
to the head of an agency shall be guided
by the criteria in appendix A to this
part. The person to whom the Council
addresses its opinion (the agency
official or the head of the agency) shall
take into account the Council’s opinion
in reaching a final decision on the issue
of the objection.
(B) The person to whom the Council
addresses its opinion (the agency
official or the head of the agency) shall
prepare a summary of the decision that
contains the rationale for the decision
and evidence of consideration of the
Council’s opinion, and provide it to the
Council. The head of the agency may
delegate his or her duties under this
paragraph to the agency’s senior Policy
Official. If the agency official’s initial
decision regarding the matter that is the
subject of the objection will be revised,
the agency official shall proceed in
accordance with the revised decision. If
the final decision of the agency is to
affirm the initial agency decision, once
the summary of the final decision has
been sent to the Council, the agency
official shall continue its compliance
with this section.
(ii) If the Council disagrees with the
objection, the Council shall so notify the
agency official, in which case the
agency official shall continue its
compliance with this section.
(iii) If the Council fails to respond to
the objection within the 30 day period,
the agency official shall continue its
compliance with this section.
* * * * *
■ 5. Amend § 800.14 by revising
paragraph (c) to read as follows:
§ 800.14 Federal agency program
alternatives.
* * * * *
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(c) Exempted categories.
(1) Criteria for establishing. The
Council or an agency official may
propose a program or category of
undertakings that may be exempted
from review under the provisions of
subpart B of this part, if the program or
category meets the following criteria:
(i) The actions within the program or
category would otherwise qualify as
‘‘undertakings’’ as defined in § 800.16;
(ii) The potential effects of the
undertakings within the program or
category upon historic properties are
foreseeable and likely to be minimal or
not adverse; and
(iii) Exemption of the program or
category is consistent with the purposes
of the act.
(2) Public participation. The
proponent of the exemption shall
arrange for public participation
appropriate to the subject matter and the
scope of the exemption and in
accordance with the standards in
subpart A of this part. The proponent of
the exemption shall consider the nature
of the exemption and its likely effects
on historic properties and take steps to
involve individuals, organizations and
entities likely to be interested.
(3) Consultation with SHPOs/THPOs.
The proponent of the exemption shall
notify and consider the views of the
SHPOs/THPOs on the exemption.
(4) Consultation with Indian tribes
and Native Hawaiian organizations. If
the exempted program or category of
undertakings has the potential to affect
historic properties on tribal lands or
historic properties of religious and
cultural significance to an Indian tribe
or Native Hawaiian organization, the
Council shall follow the requirements
for the agency official set forth in
paragraph (f) of this section.
(5) Council review of proposed
exemptions. The Council shall review
an exemption proposal that is supported
by documentation describing the
program or category for which the
exemption is sought, demonstrating that
the criteria of paragraph (c)(1) of this
section have been met, describing the
methods used to seek the views of the
public, and summarizing any views
submitted by the SHPO/THPOs, the
public, and any others consulted.
Unless it requests further information,
the Council shall approve or reject the
proposed exemption within 30 days of
receipt, and thereafter notify the
relevant agency official and SHPO/
THPOs of the decision. The decision
shall be based on the consistency of the
exemption with the purposes of the act,
taking into consideration the magnitude
of the exempted undertaking or program
and the likelihood of impairment of

Federal Register / Vol. 69, No. 128 / Tuesday, July 6, 2004 / Rules and Regulations
historic properties in accordance with
section 214 of the act.
(6) Legal consequences. Any
undertaking that falls within an
approved exempted program or category
shall require no further review pursuant
to subpart B of this part, unless the
agency official or the Council
determines that there are circumstances
under which the normally excluded
undertaking should be reviewed under
subpart B of this part.
(7) Termination. The Council may
terminate an exemption at the request of
the agency official or when the Council
determines that the exemption no longer
meets the criteria of paragraph (c)(1) of
this section. The Council shall notify
the agency official 30 days before
termination becomes effective.
(8) Notice. The proponent of the
exemption shall publish notice of any
approved exemption in the Federal
Register.
* * * * *
■ 6. Amend § 800.16 by revising
paragraph (y) and adding paragraph (z) to
read as follows:
§ 800.16 Definitions.
* * * * *
(Y) Undertaking means a project,
activity, or program funded in whole or
VerDate jul2003 17:53 Jul 02, 2004 Jkt 203001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 C:\06JYR1.SGM 06JYR1
40555
in part under the direct or indirect
jurisdiction of a Federal agency,
including those carried out by or on
behalf of a Federal agency; those carried
out with Federal financial assistance;
and those requiring a Federal permit,
license or approval.
(z) Senior policy official means the
senior policy level official designated by
the head of the agency pursuant to
section 3(e) of Executive Order 13287.
Dated: June 30, 2004.
John M. Fowler,
Executive Director.
[FR Doc. 04–15218 Filed 7–2–04; 8:45 am]
BILLING CODE 4310–10–P

December 8, 1999
Part II
Environmental
Protection Agency
40 CFR Parts 9, 122, 123, and 124
National Pollutant Discharge Elimination
System—Regulations for Revision of the
Water Pollution Control Program
Addressing Storm Water Discharges;
Final Rule
Report to Congress on the Phase II
Storm Water Regulations; Notice
federal registerWednesday
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68722 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 9, 122 , 123, and 124
[FRL—6470–8]
RIN 2040–AC82
National Pollutant Discharge
Elimination System—Regulations for
Revision of the Water Pollution Control
Program Addressing Storm Water
Discharges
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: Today’s regulations (Phase II)
expand the existing National Pollutant
Discharge Elimination System (NPDES)
storm water program (Phase I) to
address storm water discharges from
small municipal separate storm sewer
systems (MS4s) (those serving less than
100,000 persons) and construction sites
that disturb one to five acres. Although
these sources are automatically
designated by today’s rule, the rule
allows for the exclusion of certain
sources from the national program based
on a demonstration of the lack of impact
on water quality, as well as the
inclusion of others based on a higher
likelihood of localized adverse impact
on water quality. Today’s regulations
also exclude from the NPDES program
storm water discharges from industrial
facilities that have ‘‘no exposure’’ of
industrial activities or materials to
storm water. Finally, today’s rule
extends from August 7, 2001 until
March 10, 2003 the deadline by which
certain industrial facilities owned by
small MS4s must obtain coverage under
an NPDES permit. This rule establishes
a cost-effective, flexible approach for
reducing environmental harm by storm
water discharges from many point
sources of storm water that are currently
unregulated.
EPA believes that the implementation
of the six minimum measures identified
for small MS4s should significantly
reduce pollutants in urban storm water
compared to existing levels in a costeffective
manner. Similarly, EPA
believes that implementation of Best
Management Practices (BMP) controls at
small construction sites will also result
in a significant reduction in pollutant
discharges and an improvement in
surface water quality. EPA believes this
rule will result in monetized financial,
recreational and health benefits, as well
as benefits that EPA has been unable to
monetize. Expected benefits include
reduced scouring and erosion of
streambeds, improved aesthetic quality
of waters, reduced eutrophication of
aquatic systems, benefit to wildlife and
endangered and threatened species,
tourism benefits, biodiversity benefits
and reduced costs for siting reservoirs.
In addition, the costs of industrial storm
water controls will decrease due to the
exclusion of storm water discharges
from facilities where there is ‘‘no
exposure’’ of storm water to industrial
activities and materials.
DATES: This regulation is effective on
February 7, 2000. The incorporation by
reference of the rainfall erosivity factor
publication listed in the rule is
approved by the Director of the Federal
Register as of February 7, 2000. For
judicial review purposes, this final rule
is promulgated as of 1:00 p.m. Eastern
Standard Time, on December 22, 1999
as provided in 40 CFR 23.2.
ADDRESSES: The complete
administrative record for the final rule
and the ICR have been established
under docket numbers W–97–12 (rule)
and W–97–15 (ICR), and includes
supporting documentation as well as
printed, paper versions of electronic
comments. Copies of information in the
record are available upon request. A
reasonable fee may be charged for
copying. The record is available for
inspection and copying from 9 a.m. to
4 p.m., Monday through Friday,
excluding legal holidays, at the Water
Docket, EPA, East Tower Basement, 401
M Street, SW, Washington, DC. For
access to docket materials, please call
202/260–3027 to schedule an
appointment.
FOR FURTHER INFORMATION CONTACT:
George Utting, Office of Wastewater
Management, Environmental Protection
Agency, Mail Code 4203, 401 M Street,
SW, Washington, DC 20460; (202) 260–
5816; sw2@epa.gov.
SUPPLEMENTARY INFORMATION: Entities
potentially regulated by this action
include:
Category
Federal, State,
Tribal, and
Local Governments.
Examples of regulated
entities
Operators of small separate
storm sewer systems, industrial
facilities that discharge
storm water associated
with industrial activity
or construction activity
disturbing 1 to 5 acres.
Industry .......... Operators of industrial facilities
that discharge storm
water associated with in-
Construction
Activity.
dustrial activity.
Operators of construction activity
disturbing 1 to 5
acres.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
regulated by this action. This table lists
the types of entities that EPA is now
aware could potentially be regulated by
this action. Other types of entities not
listed in the table could also be
regulated. To determine whether your
facility or company is regulated by this
action, you should carefully examine
the applicability criteria in §§ 122.26(b),
122.31, 122.32, and 123.35 of the final
rule. If you have questions regarding the
applicability of this action to a
particular entity, consult the person
listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
Table of Contents:
I. Background
A. Proposed Rule and Pre-proposal
Outreach
B. Water Quality Concerns/Environmental
Impact Studies and Assessments
1. Urban Development
a. Large-Scale Studies and Assessments
b. Local and Watershed-Based Studies
c. Beach Closings/Advisories
2. Non-storm Water Discharges Through
Municipal Storm Sewers
3. Construction Site Runoff
C. Statutory Background
D. EPA’s Reports to Congress
E. Industrial Facilities Owned or Operated
by Small Municipalities
F. Related Nonpoint Source Programs
II. Description of Program
A. Overview
1. Objectives EPA Seeks to Achieve in
Today’s Rule
2. General Requirements for Regulated
Entities Under Today’s Rule
3. Integration of Today’s Rule With the
Existing Storm Water Program
4. General Permits
5. Tool Box
6. Deadlines Established in Today’s Action
B. Readable Regulations
C. Program Framework: NPDES Approach
D. Federal Role
1. Develop Overall Framework of the
Program
2. Encourage Consideration of ‘‘Smart
Growth’’ Approaches
3. Provide Financial Assistance
4. Implement the Program in Jurisdictions
not Authorized to Administer the NPDES
Program
5. Oversee State and Tribal Programs
6. Comply with Applicable Requirements
as a Discharger
E. State Role
1. Develop the Program
2. Comply With Applicable Requirements
as a Discharger
3. Communicate with EPA
F. Tribal Role
G. NPDES Permitting Authority’s Role for
the NPDES Storm Water Small MS4
Program
1. Comply With Implementation
Requirements
2. Designate Sources
a. Develop Designation Criteria
b. Apply Designation Criteria
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
c. Designate Physically Interconnected
Small MS4s
d. Respond to Public Petitions for
Designation
3. Provide Waivers
4. Issue Permits
5. Support and Oversee the Local Programs
H. Municipal Role
1. Scope of Today’s Rule
2. Municipal Definitions
a. Municipal Separate Storm Sewer
Systems (MS4s)
b. Small Municipal Separate Storm Sewer
Systems
i. Combined Sewer Systems (CSS)
ii. Owners/Operators
c. Regulated Small MS4s
i. Urbanized Area Description
ii. Rationale for Using Urbanized Areas
d. Municipal Designation by the Permitting
Authority
e. Waiving the Requirements for Small
MS4s
3. Municipal Permit Requirements
a. Overview
i. Summary of Permitting Options
ii. Water Quality-Based Requirements
iii. Maximum Extent Practicable
b. Program Requirements—Minimum
Control Measures
i. Public Education and Outreach on Storm
Water Impacts
ii. Public Involvement/Participation
iii. Illicit Discharge Detection and
Elimination
iv. Construction Site Storm Water Runoff
Control
v. Post-Construction Storm Water
Management in New Development and
Redevelopment
vi. Pollution Prevention/Good
Housekeeping for Municipal Operations
c. Application Requirements
i. Best Management Practices and
Measurable Goals
ii. Individual Permit Application for a
§ 122.34(b) Program
iii. Alternative Permit Option/ Tenth
Amendment
iv. Satisfaction of Minimum Measure
Obligations by Another Entity
v. Joint Permit Programs
d. Evaluation and Assessment
i. Recordkeeping
ii. Reporting
iii. Permit-As-A-Shield
e. Other Applicable NPDES Requirements
f. Enforceability
g. Deadlines
h. Reevaluation of Rule
I. Other Designated Storm Water
Discharges
1. Discharges Associated with Small
Construction Activity
a. Scope
b. Waivers
i. Rainfall-Erosivity Waiver
ii. Water Quality Waiver
c. Permit Process and Administration
d. Cross-Referencing State, Tribal, or Local
Erosion and Sediment Control Programs
e. Alternative Approaches
2. Other Sources
3. ISTEA Sources
4. Residual Designation Authority
J. Conditional Exclusion for ‘‘No Exposure’’
of Industrial Activities and Materials to
Storm Water
1. Background
2. Today’s Rule
3. Definition of ‘‘No Exposure’’
K. Public Involvement/Public Role
L. Water Quality Issues
1. Water Quality Based Effluent Limits
2. Total Maximum Daily Loads and
Analysis to Determine the Need for
Water Quality-Based Limitations
3. Anti-Backsliding
4. Water Quality-Based Waivers and
Designations
III. Cost-Benefit Analysis
A. Costs
1. Municipal Costs
2. Construction Costs
B. Quantitative Benefits
1. National Water Quality Model
2. National Water Quality Assessment
a. Municipal Measures
i. Fresh Waters Benefits
ii. Marine Waters Benefits
b. Construction Benefits
c. Summary of Benefits From the National
Water Quality Assessment
C. Qualitative Benefits
D. National Economic Impact
IV. Regulatory Requirements
A. Paperwork Reduction Act
B. Executive Order 12866
C. Unfunded Mandates Reform Act
1. Summary of UMRA Section 202 Written
Statement
2. Selection of the Least Costly, Most Cost-
Effective or Least Burdensome
Alternative That Achieves the Objectives
of the Statute
3. Effects on Small Governments
D. Executive Order 13132
E. Regulatory Flexibility Act
F. National Technology Transfer And
Advancement Act
G. Executive Order 13045
H. Executive Order 13084
I. Congressional Review Act
I. Background
A. Proposed Rule and Pre-Proposal
Outreach
On January 9, 1998 (63 FR 1536), EPA
proposed to expand the National
Pollutant Discharge Elimination System
(NPDES) storm water program to
include storm water discharges from
municipal separate storm sewer systems
(MS4s) and construction sites that were
smaller than those previously included
in the program. The proposal also
addressed industrial sources that have
‘‘no exposure’’ of industrial activities
and materials to storm water. Today,
EPA is promulgating a final rule to
implement most of the proposed
revisions with minor changes based on
public comments received on the
proposal. Today’s final rule also extends
the deadline by which certain industrial
facilities operated by municipalities of
less than 100,000 population must be
covered by a NPDES permit; the
68723
deadline is changed from August 7,
2001 until March 10, 2003.
In 1972, Congress amended the
Federal Water Pollution Control Act
(commonly referred to as the Clean
Water Act (CWA)) to prohibit the
discharge of any pollutant to waters of
the United States from a point source
unless the discharge is authorized by an
NPDES permit. The NPDES program is
a program designed to track point
sources and require the implementation
of the controls necessary to minimize
the discharge of pollutants. Initial
efforts to improve water quality under
the NPDES program primarily focused
on reducing pollutants in industrial
process wastewater and municipal
sewage. These discharge sources were
easily identified as responsible for poor,
often drastically degraded, water quality
conditions.
As pollution control measures for
industrial process wastewater and
municipal sewage were implemented
and refined, it became increasingly
evident that more diffuse sources of
water pollution were also significant
causes of water quality impairment.
Specifically, storm water runoff
draining large surface areas, such as
agricultural and urban land, was found
to be a major cause of water quality
impairment, including the
nonattainment of designated beneficial
uses.
In 1987, Congress amended the CWA
to require implementation, in two
phases, of a comprehensive national
program for addressing storm water
discharges. The first phase of the
program, commonly referred to as
‘‘Phase I,’’ was promulgated on
November 16, 1990 (55 FR 47990).
Phase I requires NPDES permits for
storm water discharge from a large
number of priority sources including
municipal separate storm sewer systems
(‘‘MS4s’’) generally serving populations
of 100,000 or more and several
categories of industrial activity,
including construction sites that disturb
five or more acres of land.
Today’s rule, which is the second
phase of the storm water program,
expands the existing program to include
discharges of storm water from smaller
municipalities in urbanized areas and
from construction sites that disturb
between one and five acres of land.
Today’s rule allows certain sources to be
excluded from the national program
based on a demonstrable lack of impact
on water quality. The rule also allows
other sources not automatically
regulated on a national basis to be
designated for inclusion based on
increased likelihood for localized
adverse impact on water quality.
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68724 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
Today’s rule also conditionally excludes
storm water discharges from industrial
facilities that have ‘‘no exposure’’ of
industrial activities or materials to
storm water. Today’s rule and the effort
that led to its development are
commonly referred to as ‘‘Phase II.’’ On
August 7, 1995, EPA promulgated a
final rule that required facilities to be
regulated under Phase II to apply for a
NPDES permit by August 7, 2001,
unless the NPDES permitting authority
designates them as requiring a permit by
an earlier date. (60 FR 40230). That rule
is referred to as ‘‘the Interim Phase II
Rule.’’ Today’s rule replaces the Interim
Phase II rule.
EPA performed extensive outreach
and worked with a variety of
stakeholders prior to proposing today’s
rule. On September 9, 1992, EPA
published a notice requesting
information and public comment on
how to prepare regulations under CWA
section 402(p)(6) (see 57 FR 41344). The
notice identified three sets of issues
associated with developing new NPDES
storm water regulations: (1) How should
EPA identify unregulated sources of
storm water to protect water quality, (2)
what types of control strategies should
EPA develop for these sources, and (3)
what are appropriate deadlines for
implementing new requirements. The
notice recognized that potential sources
for coverage under the section 402(p)(6)
regulations would fall into two main
categories: municipal separate storm
sewer systems and individual
(commercial and residential) sources.
EPA received more than 130 comments
on the September 9, 1992, notice. For
further discussion of the comments
received, see Storm Water Discharges
Potentially Addressed by Phase II of the
National Pollutant Discharge
Elimination System: Report to Congress
(EPA, 1995a), pp. 1–21 to 1–22, and
Appendix J (which provides a detailed
summary of the comments received as
they relate to the specific issues raised
in the notice).
In early 1993, the Rensselaerville
Institute and EPA held public and
expert meetings to assist in developing
and analyzing options for identifying
unregulated sources and possible
controls. The report on the 1993
meetings identified two options that
were favored by the various groups that
participated. One option was a program
that allowed States to select sources to
be controlled in a manner consistent
with criteria developed by EPA. A
second option was a tiered approach
under which EPA would select high
priority sources for control by NPDES
permits and States would select other
sources for control under a State water
quality program other than the NPDES
program. For additional details see the
‘‘Report on the EPA Storm Water
Management Program (Rensselaerville
Study),’’ Appendix I of Storm Water
Discharges Potentially Addressed by
Phase II of the National Pollutant
Discharge Elimination System: Report to
Congress (EPA, 1995a).
EPA also conducted outreach with
representatives of small entities in
conjunction with the convening of a
Small Business Advocacy Review Panel
under the Small Business Regulatory
Enforcement Fairness Act (SBREFA).
This process is discussed in section IV.E
of today’s preamble. For additional
background see the discussion in the
preamble to the proposal for today’s
rule.
To assist EPA by providing advice
and recommendations regarding the
urban municipal wet weather water
pollution control program, EPA
established the Urban Wet Weather
Flows Federal Advisory Committee
(hereinafter, ‘‘FACA Committee’’) under
the Federal Advisory Committee Act
(FACA). The Office of Management and
Budget approved the charter for the
FACA Committee on March 10, 1995.
The FACA Committee provided a forum
for identifying and addressing issues
associated with water quality impacts
from storm water sources.
The FACA Committee established two
subcommittees: the Storm Water Phase
II FACA Subcommittee and the Sanitary
Sewer Overflows (SSOs) FACA
Subcommittee. Consistent with the
requirements of FACA, the membership
of both the FACA Committee and the
subcommittees was balanced among
EPA’s various outside stakeholder
interests, including representatives from
municipalities, States, Indian Tribes,
EPA, industrial and commercial sectors,
agriculture, and environmental and
public interest groups.
The Storm Water Phase II FACA
Subcommittee (‘‘Subcommittee’’) met
fourteen times between September 1995
and June 1998. The 32 Subcommittee
members discussed possible regulatory
frameworks at these meetings as well as
during numerous other meetings and
conference calls. Members of the FACA
Committee provided views regarding
the development of the ‘‘no exposure’’
provision and other provisions in drafts
of the Phase II rule. EPA provided
Subcommittee members with four
successive drafts of the proposed rule
and preamble, outlines of the rule,
summaries of the written comments
received on each draft, and documents
identifying the changes made to each
draft. In the course of providing input
to the Committee, individual
Subcommittee members provided
significant input and advice that EPA
considered in the context of public
comments received. Ultimately, the
Subcommittee did not provide a written
report back to the FACA Committee,
and the FACA Committee did not
provide written advice and
recommendations to EPA. The Agency,
therefore, did not rely on group
recommendations in developing today’s
rule, but does consider the process to
have resulted in important public
outreach.
B. Water Quality Concerns/
Environmental Impact Studies and
Assessments
Storm water runoff from lands
modified by human activities can harm
surface water resources and, in turn,
cause or contribute to an exceedance of
water quality standards by changing
natural hydrologic patterns, accelerating
stream flows, destroying aquatic habitat,
and elevating pollutant concentrations
and loadings. Such runoff may contain
or mobilize high levels of contaminants,
such as sediment, suspended solids,
nutrients (phosphorous and nitrogen),
heavy metals and other toxic pollutants,
pathogens, toxins, oxygen-demanding
substances (organic material), and
floatables (U.S. EPA. 1992.
Environmental Impacts of Storm Water
Discharges: A National Profile. EPA
841–R–92–001. Office of Water.
Washington, DC). After a rain, storm
water runoff carries these pollutants
into nearby streams, rivers, lakes,
estuaries, wetlands, and oceans. The
highest concentrations of these
contaminants often are contained in
‘‘first flush’’ discharges, which occur
during the first major storm after an
extended dry period (Schueler, T.R.
1994. ‘‘First Flush of Stormwater
Pollutants Investigated in Texas.’’ Note
28. Watershed Protection Techniques
1(2)). Individually and combined, these
pollutants impair water quality,
threatening designated beneficial uses
and causing habitat alteration or
destruction.
Uncontrolled storm water discharges
from areas of urban development and
construction activity negatively impact
receiving waters by changing the
physical, biological, and chemical
composition of the water, resulting in an
unhealthy environment for aquatic
organisms, wildlife, and humans. The
following sections discuss the studies
and data that address and support this
finding.
Although water quality problems also
can occur from agricultural storm water
discharges and return flows from
irrigated agriculture, this area of
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
concern is statutorily exempted from
regulation as a point source under the
Clean Water Act and is not discussed
here. (See CWA section 502(14)). Other
storm water sources not specifically
identified in the regulations may be of
concern in certain areas and can be
addressed on a case-by-case (or
category-by-category) basis through the
NPDES designation authority preserved
by CWA section 402(p)(2)(6), as well as
today’s rule.
1. Urban Development
Urbanization alters the natural
infiltration capability of the land and
generates a host of pollutants that are
associated with the activities of dense
populations, thus causing an increase in
storm water runoff volumes and
pollutant loadings in storm water
discharged to receiving waterbodies
(U.S. EPA, 1992). Urban development
increases the amount of impervious
surface in a watershed as farmland,
forests, and meadowlands with natural
infiltration characteristics are converted
into buildings with rooftops, driveways,
sidewalks, roads, and parking lots with
virtually no ability to absorb storm
water. Storm water and snow-melt
runoff wash over these impervious
areas, picking up pollutants along the
way while gaining speed and volume
because of their inability to disperse and
filter into the ground. What results are
storm water flows that are higher in
volume, pollutants, and temperature
than the flows in less impervious areas,
which have more natural vegetation and
soil to filter the runoff (U.S. EPA, 1997.
Urbanization and Streams: Studies of
Hydrologic Impacts. EPA 841–R–97-009.
Office of Water. Washington, DC).
Studies reveal that the level of
imperviousness in an area strongly
correlates with the quality of the nearby
receiving waters. For example, a study
in the Puget Sound lowland ecoregion
found that when the level of basin
development exceeded 5 percent of the
total impervious area, the biological
integrity and physical habitat conditions
that are necessary to support natural
biological diversity and complexity
declined precipitously (May, C.W., E.B.
Welch, R.R. Horner, J.R. Karr, and B.W.
May. 1997. Quality Indices for
Urbanization Effects in Puget Sound
Lowland Streams, Technical Report No.
154. University of Washington Water
Resources Series). Research conducted
in numerous geographical areas,
concentrating on various variables and
employing widely different methods,
has revealed a similar conclusion:
stream degradation occurs at relatively
low levels of imperviousness, such as 10
to 20 percent (even as low as 5 to 10
percent according to the findings of the
Washington study referenced above)
(Schueler, T.R. 1994. ‘‘The Importance
of Imperviousness.’’ Watershed
Protection Techniques 1(3); May, C.,
R.R. Horner, J.R. Karr, B.W. Mar, and
E.B. Welch. 1997. ‘‘Effects Of
Urbanization On Small Streams In The
Puget Sound Lowland Ecoregion.’’
Watershed Protection Techniques 2(4);
Yoder, C.O., R.J. Miltner, and D. White.
1999. ‘‘Assessing the Status of Aquatic
Life Designated Uses in Urban and
Suburban Watersheds.’’ In Proceedings:
National Conference on Retrofits
Opportunities in Urban Environments.
EPA 625–R–99–002, Washington, DC;
Yoder, C.O and R.J. Miltner. 1999.
‘‘Assessing Biological Quality and
Limitations to Biological Potential in
Urban and Suburban Watersheds in
Ohio.’’ In Comprehensive Stormwater &
Aquatic Ecosystem Management
Conference Papers, Auckland, New
Zealand). Furthermore, research has
indicated that few, if any, urban streams
can support diverse benthic
communities at imperviousness levels
of 25 percent or more. An area of
medium density single family homes
can be anywhere from 25 percent to
nearly 60 percent impervious,
depending on the design of the streets
and parking (Schueler, 1994).
In addition to impervious areas, urban
development creates new pollution
sources as population density increases
and brings with it proportionately
higher levels of car emissions, car
maintenance wastes, pet waste, litter,
pesticides, and household hazardous
wastes, which may be washed into
receiving waters by storm water or
dumped directly into storm drains
designed to discharge to receiving
waters. More people in less space
results in a greater concentration of
pollutants that can be mobilized by, or
disposed into, storm water discharges
from municipal separate storm sewer
systems. A modeling system developed
for the Chesapeake Bay indicated that
contamination of the Bay and its
tributaries from runoff is comparable to,
if not greater than, contamination from
industrial and sewage sources (Cohn-
Lee, R. and D. Cameron. 1992. ‘‘Urban
Stormwater Runoff Contamination of
the Chesapeake Bay: Sources and
Mitigation.’’ The Environmental
Professional, Vol. 14).
a. Large-Scale Studies and Assessments
In support of today’s regulatory
designation of MS4s in urbanized areas,
the Agency relied on broad-based
assessments of urban storm water runoff
and related water quality impacts, as
well as more site-specific studies. The
68725
first national assessment of urban runoff
characteristics was completed for the
Nationwide Urban Runoff Program
(NURP) study (U.S. EPA. 1983. Results
of the Nationwide Urban Runoff
Program, Volume 1—Final Report.
Office of Water. Washington, D.C.). The
NURP study is the largest nationwide
evaluation of storm water discharges,
which includes adverse impacts and
sources, undertaken to date.
EPA conducted the NURP study to
facilitate understanding of the nature of
urban runoff from residential,
commercial, and industrial areas. One
objective of the study was to
characterize the water quality of
discharges from separate storm sewer
systems that drain residential,
commercial, and light industrial
(industrial parks) sites. Storm water
samples from 81 residential and
commercial properties in 22 urban/
suburban areas nationwide were
collected and analyzed during the 5year
period between 1978 and 1983. The
majority of samples collected in the
study were analyzed for eight
conventional pollutants and three heavy
metals.
Data collected under the NURP study
indicated that discharges from separate
storm sewer systems draining runoff
from residential, commercial, and light
industrial areas carried more than 10
times the annual loadings of total
suspended solids (TSS) than discharges
from municipal sewage treatment plants
that provide secondary treatment. The
NURP study also indicated that runoff
from residential and commercial areas
carried somewhat higher annual
loadings of chemical oxygen demand
(COD), total lead, and total copper than
effluent from secondary treatment
plants. Study findings showed that fecal
coliform counts in urban runoff
typically range from tens to hundreds of
thousands per hundred milliliters of
runoff during warm weather conditions,
with the median for all sites being
around 21,000/100 ml. This is generally
consistent with studies that found that
fecal coliform mean values range from
1,600 coliform fecal units (CFU)/100 ml
to 250,000 cfu/100 ml (Makepeace, D.K.,
D.W. Smith, and S.J. Stanley. 1995.
‘‘Urban Storm Water Quality: Summary
of Contaminant Data.’’ Critical Reviews
in Environmental Science and
Technology 25(2):93-139). Makepeace,
et al., summarized ranges of
contaminants from storm water,
including physical contaminants such
as total solids (76—36,200 mg/L) and
copper (up to 1.41 mg/L); organic
chemicals; organic compounds, such as
oil and grease (up to 110 mg/L); and
microorganisms.
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68726 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
Monitoring data summarized in the
NURP study provided important
information about urban runoff from
residential, commercial, and light
industrial areas. The study concluded
that the quality of urban runoff can be
affected adversely by several sources of
pollution that were not directly
evaluated in the study, including illicit
discharges, construction site runoff, and
illegal dumping. Data from the NURP
study were analyzed further in the U.S.
Geological Survey (USGS) Urban Storm
Water Data Base for 22 Metropolitan
Areas Throughout the United States
study (Driver, N.E., M.H. Mustard, R.B.
Rhinesmith, and R.F. Middleburg. 1985.
U.S. Geological Survey Urban Storm
Water Data Base for 22 Metropolitan
Areas Throughout the United States.
Report No. 85–337 USGS. Lakewood,
CO). The USGS report summarized
additional monitoring data compiled
during the mid-1980s, covering 717
storm events at 99 sites in 22
metropolitan areas and documented
problems associated with metals and
sediment concentrations in urban storm
water runoff. More recent reports have
confirmed the pollutant concentration
data collected in the NURP study
(Marsalek, J. 1990. ‘‘Evaluation of
Pollutant Loads from Urban Nonpoint
Sources.’’ Wat. Sci. Tech. 22(10/11):23–
30; Makepeace, et al., 1995).
Commenters argued that the NURP
study does not support EPA’s
contention that urban activities
significantly jeopardize attainment of
water quality standards. One commenter
argued that the NURP study and the
1985 USGS study are seriously out of
date. Because they were issued 10 years
or more before the implementation of
the current storm water permit program,
the data in those reports do not reflect
conditions that exist after
implementation of permits issued by
authorized States and EPA for storm
water from construction sites, large
municipalities, and industrial activities.
In response, EPA notes that it is not
relying solely on the NURP study to
describe current water quality
impairment. Rather, EPA is citing NURP
as a source of data on typical pollutant
concentrations in urban runoff. Recent
studies have not found significantly
different pollutant concentrations in
urban runoff when compared to the
original NURP data (see Makepeace, et
al., 1995; Marsalek, 1990; and Pitt, et al.,
1995).
America’s Clean Water—the States’
Nonpoint Source Assessment
(Association of State and Interstate
Water Pollution Control Administrators
(ASIWPCA). 1985. America’s Clean
Water—The States’ Nonpoint Source
Assessment. Prepared in cooperation
with the U.S. EPA, Office of Water,
Washington, DC), a comprehensive
study of diffuse pollution sources
conducted under the sponsorship of the
Association of State and Interstate Water
Pollution Control Administrators
(ASIWPCA) and EPA revealed that 38
States reported urban runoff as a major
cause of designated beneficial use
impairment and 21 States reported
storm water runoff from construction
sites as a major cause of beneficial use
impairment. In addition, the 1996
305(b) Report (U.S. EPA. 1998. The
National Water Quality Inventory, 1996
Report to Congress. EPA 841–R–97–008.
Office of Water. Washington, DC),
provides a national assessment of water
quality based on biennial reports
submitted by the States as required
under CWA section 305(b) of the CWA.
In the CWA 305(b) reports, States,
Tribes, and Territories assess their
individual water quality control
programs by examining the attainment
or nonattainment of the designated uses
assigned to their rivers, lakes, estuaries,
wetlands, and ocean shores. A
designated use is the legally applicable
use specified in a water quality standard
for a watershed, waterbody, or segment
of a waterbody. The designated use is
the desirable use that the water quality
should support. Examples of designated
uses include drinking water supply,
primary contact recreation (swimming),
and aquatic life support. Each CWA
305(b) report indicates the assessed
fraction of a State’s waters that are fully
supporting, partially supporting, or not
supporting designated beneficial uses.
In their reports, States, Tribes, and
Territories first identified and then
assigned the sources of water quality
impairment for each impaired
waterbody using the following
categories: industrial, municipal
sewage, combined sewer overflows,
urban runoff/storm sewers, agricultural,
silvicultural, construction, resource
extraction, land disposal, hydrologic
modification, and habitat modification.
The 1996 Inventory, based on a
compilation of 60 individual 305(b)
reports submitted by States, Tribes, and
Territories, assessed the following
percentages of total waters nationwide:
19 percent of river and stream miles; 40
percent of lake, pond, and reservoir
acres; 72 percent of estuary square
miles; and 6 percent of ocean shoreline
waters. The 1996 Inventory indicated
that approximately 40 percent of the
Nation’s assessed rivers, lakes, and
estuaries are impaired. Waterbodies
deemed as ‘‘impaired’’ are either
partially supporting designated uses or
not supporting designated uses.
The 1996 Inventory also found urban
runoff/discharges from storm sewers to
be a major source of water quality
impairment nationwide. Urban runoff/
storm sewers were found to be a source
of pollution in 13 percent of impaired
rivers; 21 percent of impaired lakes,
ponds, and reservoirs; and 45 percent of
impaired estuaries (second only to
industrial discharges). In addition,
urban runoff was found to be the
leading cause of ocean impairment for
those ocean miles surveyed.
In addition, a recent USGS study of
urban watersheds across the United
States has revealed a link between urban
development and contamination of local
waterbodies. The study found the
highest levels of organic contaminants,
known as polycyclic aromatic
hydrocarbons (PAHs) (products of
combustion of wood, grass, and fossil
fuels), in the reservoirs of urbanized
watersheds (U.S. Geological Survey
(USGS). 1998. Research Reveals Link
Between Development and
Contamination in Urban Watersheds.
USGS news release. USGS National
Water-Quality Assessment Program).
Urban storm water also can contribute
significant amounts of toxicants to
receiving waters. Pitt, et. al. (1993),
found heavy metal concentrations in the
majority of samples analyzed. Industrial
or commercial areas were likely to be
the most significant pollutant source
areas (Pitt, R., R. Field, M. Lalor, M.
Brown 1993. ‘‘Urban stormwater toxic
pollutants: assessment, sources, and
treatability’’ Water Environment
Research, 67(3):260–75).
b. Local and Watershed-Based Studies
In addition to the large-scale
nationwide studies and assessments, a
number of local and watershed-based
studies from across the country have
documented the detrimental effects of
urban storm water runoff on water
quality. A study of urban streams in
Milwaukee County, Wisconsin, found
local streams to be highly degraded due
primarily to urban runoff, while three
studies in the Atlanta, Georgia, region
were characterized as being ‘‘the first
documentation in the Southeast of the
strong negative relationship between
urbanization and stream quality that has
been observed in other ecoregions’’
(Masterson, J. and R. Bannerman. 1994.
‘‘Impacts of Storm Water Runoff on
Urban Streams in Milwaukee County,
Wisconsin.’’ Paper presented at National
Symposium on Water Quality:
American Water Resources Association;
Schueler, T.R. 1997. ‘‘Fish Dynamics in
Urban Streams Near Atlanta, Georgia.’’
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
Technical Note 94. Watershed
Protection Techniques 2(4)). Several
other studies, including those
performed in Arizona (Maricopa
County), California (San Jose’s Coyote
Creek), Massachusetts (Green River),
Virginia (Tuckahoe Creek), and
Washington (Puget Sound lowland
ecoregion), all had the same finding:
runoff from urban areas greatly impair
stream ecology and the health of aquatic
life; the more heavily developed the
area, the more detrimental the effects
(Lopes, T. and K. Fossum. 1995.
‘‘Selected Chemical Characteristics and
Acute Toxicity of Urban Stormwater,
Streamflow, and Bed Material, Maricopa
County, Arizona.’’ Water Resources
Investigations Report 95–4074. USGS;
Pitt, R. 1995. ‘‘Effects of Urban Runoff
on Aquatic Biota.’’ In Handbook of
Ecotoxicology; Pratt, J. and R. Coler.
1979. ‘‘Ecological Effects of Urban
Stormwater Runoff on Benthic
Macroinvertebrates Inhabiting the Green
River, Massachusetts.’’ Completion
Report Project No. A–094. Water
Resources Research Center. University
of Massachusetts at Amherst.; Schueler,
T.R. 1997. ‘‘Historical Change in a
Warmwater Fish Community in an
Urbanizing Watershed.’’ Technical Note
93. Watershed Protection Techniques
2(4); May, C., R. Horner, J. Karr, B. Mar,
and E. Welch. 1997. ‘‘Effects Of
Urbanization On Small Streams In The
Puget Sound Lowland Ecoregion.’’
Watershed Protection Techniques 2(4)).
Pitt and others also described the
receiving water effects on aquatic
organisms associated with urban runoff
(Pitt, R.E. 1995. ‘‘Biological Effects of
Urban Runoff Discharges’’ In
Stormwater Runoff and Receiving
Systems: Impact, Monitoring, and
Assessment, ed. E.E Herricks, Lewis
Publishers; Crunkilton, R., J. Kleist, D.
Bierman, J. Ramcheck, and W. DeVita.
1999. ‘‘Importance of Toxicity as a
Factor Controlling the Distribution of
Aquatic Organisms in an Urban
Stream.’’ In Comprehensive Stormwater
& Aquatic Ecosystem Management
Conference Papers. Auckland, New
Zealand).
In Wisconsin, runoff samples were
collected from streets, parking lots,
roofs, driveways, and lawns. Source
areas were broken up into residential,
commercial, and industrial. Geometric
mean concentration data for residential
areas included total solids of about 500–
800 mg/L from streets and 600 mg/L
from lawns. Fecal coliform data from
residential areas ranged from 34,000 to
92,000 cfu/100 mL for streets and
driveways. Contaminant concentration
data from commercial and industrial
source areas were lower for total solids
and fecal coliform, but higher for total
zinc (Bannerman, R.T., D.W. Owens,
R.B. Dods, and N.J. Hornewer. 1993.
‘‘Sources of Pollutants in Wisconsin
Stormwater.’’ Wat. Sci. Tech. 28(3–
5):241–59).
Bannerman, et al. also found that
streets contribute higher loads of
pollutants to urban storm water than
any other residential development
source. Two small urban residential
watersheds were evaluated to determine
that lawns and streets are the largest
sources of total and dissolved
phosphorus in the basins (Waschbusch,
R.J., W.R. Selbig, and R.T. Bannerman.
1999. ‘‘Sources of Phosphorus in
Stormwater and Street Dirt from Two
Urban Residential Basins In Madison,
Wisconsin, 1994–95.’’ Water Resources
Investigations Report 99–4021. U.S.
Geological Survey). A number of other
studies have indicated that urban
roadways often contain significant
quantities of metal elements and solids
(Sansalone, J.J. and S.G. Buchberger.
1997. ‘‘Partitioning and First Flush of
Metals in Urban Roadway Storm
Water.’’ ASCE Journal of Environmental
Engineering 123(2); Sansalone, J.J., J.M.
Koran, J.A. Smithson, and S.G.
Buchberger. 1998. ‘‘Physical
Characteristics of Urban Roadway
Solids Transported During Rain Events’’
ASCE Journal of Environmental
Engineering 124(5); Klein, L.A., M.
Lang, N. Nash, and S.L. Kirschner. 1974.
‘‘Sources of Metals in New York City
Wastewater’’ J. Water Pollution Control
Federation 46(12):2653–62; Barrett, M.E,
R.D. Zuber, E.R. Collins, J.F. Malina, R.J.
Charbeneau, and G.H Ward., 1993. ‘‘A
Review and Evaluation of Literature
Pertaining to the Quantity and Control
of Pollution from Highway Runoff and
Construction.’’ Research Report 1943–1.
Center for Transportation Research,
University of Texas, Austin).
c. Beach Closings/Advisories
Urban wet weather flows have been
recognized as the primary sources of
estuarine pollution in coastal
communities. Urban storm water runoff,
sanitary sewer overflows, and combined
sewer overflows have become the largest
causes of beach closings in the United
States in the past three years. Storm
water discharges from urban areas not
only pose a threat to the ecological
environment, they also can substantially
affect human health. A survey of coastal
and Great Lakes communities reports
that in 1998, more than 1,500 beach
closings and advisories were associated
with storm water runoff (Natural
Resources Defense Council. 1999. ‘‘A
Guide to Water Quality at Vacation
Beaches’’ New York, NY). Other reports
68727
also document public health, shellfish
bed, and habitat impacts from storm
water runoff, including more than 823
beach closings/advisories issued in 1995
and more than 407 beach closing/
advisories issued in 1996 due to urban
runoff (Natural Resources Defense
Council. 1996. Testing the Waters
Volume VI: Who Knows What You’re
Getting Into. New York, NY; NRDC.
1997. Testing the Waters Volume VII:
How Does Your Vacation Beach Rate.
New York, NY; Morton, T. 1997.
Draining to the Ocean: The Effects of
Stormwater Pollution on Coastal Waters.
American Oceans Campaign, Santa
Monica, CA). The Epidemiological
Study of Possible Adverse Health Effects
of Swimming in Santa Monica Bay
(Haile, R.W., et. al. 1996. ‘‘An
Epidemiological Study of Possible
Adverse Health Effects of Swimming in
Santa Monica Bay.’’ Final Report
prepared for the Santa Monica Bay
Restoration Project) concluded that
there is a 57 percent higher rate of
illness in swimmers who swim adjacent
to storm drains than in swimmers who
swim more than 400 yards away from
storm drains. This and other studies
document a relationship between
gastrointestinal illness in swimmers and
water quality, the latter of which can be
heavily compromised by polluted storm
water discharges.
2. Non-Storm Water Discharges Through
Municipal Storm Sewers
Studies have shown that discharges
from MS4s often include wastes and
wastewater from non-storm water
sources. Federal regulations
(§ 122.26(b)(2)) define an illicit
discharge as ‘‘* * * any discharge to an
MS4 that is not composed entirely of
storm water * * *,’’ with some
exceptions. These discharges are
‘‘illicit’’ because municipal storm sewer
systems are not designed to accept,
process, or discharge such wastes.
Sources of illicit discharges include, but
are not limited to: sanitary wastewater;
effluent from septic tanks; car wash,
laundry, and other industrial
wastewaters; improper disposal of auto
and household toxics, such as used
motor oil and pesticides; and spills from
roadway and other accidents.
Illicit discharges enter the system
through either direct connections (e.g.,
wastewater piping either mistakenly or
deliberately connected to the storm
drains) or indirect connections (e.g.,
infiltration into the MS4 from cracked
sanitary systems, spills collected by
drain outlets, and paint or used oil
dumped directly into a drain). The
result is untreated discharges that
contribute high levels of pollutants,
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68728 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
including heavy metals, toxics, oil and
grease, solvents, nutrients, viruses and
bacteria into receiving waterbodies. The
NURP study, discussed earlier, found
that pollutant levels from illicit
discharges were high enough to
significantly degrade receiving water
quality and threaten aquatic, wildlife,
and human health. The study noted
particular problems with illicit
discharges of sanitary wastes, which can
be directly linked to high bacterial
counts in receiving waters and can be
dangerous to public health.
Because illicit discharges to MS4s can
create severe widespread contamination
and water quality problems, several
municipalities and urban counties
performed studies to identify and
eliminate such discharges. In Michigan,
the Ann Arbor and Ypsilanti water
quality projects inspected 660
businesses, homes, and other buildings
and identified 14 percent of the
buildings as having improper storm
sewer drain connections. The program
assessment revealed that, on average, 60
percent of automobile-related
businesses, including service stations,
automobile dealerships, car washes,
body shops, and light industrial
facilities, had illicit connections to
storm sewer drains. The program
assessment also showed that a majority
of the illicit discharges to the storm
sewer system resulted from improper
plumbing and connections, which had
been approved by the municipality
when installed (Washtenaw County
Statutory Drainage Board. 1987. Huron
River Pollution Abatement Program).
In addition, an inspection of urban
storm water outfalls draining into Inner
Grays, Washington, indicated that 32
percent of these outfalls had dry
weather flows. Of these flows, 21
percent were determined to have
pollutant levels higher than the
pollutant levels expected in typical
urban storm water runoff characterized
in the NURP study (U.S. EPA. 1993.
Investigation of Inappropriate Pollutant
Entries Into Storm Drainage Systems—
A User’s Guide. EPA 600/R–92/238.
Office of Research and Development.
Washington, DC). That same document
reports a study in Toronto, Canada, that
found that 59 percent of outfalls from
the MS4 had dry-weather flows.
Chemical tests revealed that 14 percent
of these dry-weather flows were
determined to be grossly polluted.
Inflows from aging sanitary sewer
collection systems are one of the most
serious illicit discharge-related
problems. Sanitary sewer systems
frequently develop leaks and cracks,
resulting in discharges of pollutants to
receiving waters through separate storm
sewers. These pollutants include
sanitary waste and materials from sewer
main construction (e.g., asbestos
cement, brick, cast iron, vitrified clay).
Municipalities have long recognized the
reverse problem of storm water
infiltration into sanitary sewer
collection systems; this type of
infiltration often disrupts the operation
of the municipal sewage treatment
plant.
The improper disposal of materials is
another illicit discharge-related problem
that can result in contaminated
discharges from separate storm sewer
systems in two ways. First, materials
may be disposed of directly in a catch
basin or other storm water conveyance.
Second, materials disposed of on the
ground may either drain directly to a
storm sewer or be washed into a storm
sewer during a storm event. Improper
disposal of materials to street catch
basins and other storm sewer inlets
often occurs when people mistakenly
believe that disposal to such areas is an
environmentally sound practice. Part of
the confusion may occur because some
areas are served by combined sewer
systems, which are part of the sanitary
sewer collection system, and people
assume that materials discharged to a
catch basin will reach a municipal
sewage treatment plant. Materials that
are commonly disposed of improperly
include used motor oil; household toxic
materials; radiator fluids; and litter,
such as disposable cups, cans, and fastfood
packages. EPA believes that there
has been increasing success in
addressing these problems through
initiatives such as storm drain stenciling
and recycling programs, including
household hazardous waste special
collection days.
Programs that reduce illicit discharges
to separate storm sewers have improved
water quality in several municipalities.
For example, Michigan’s Huron River
Pollution Abatement Program found the
elimination of illicit connections caused
a measurable improvement in the water
quality of the Washtenaw County storm
sewers and the Huron River
(Washtenaw County Statutory Drainage
Board, 1987). In addition, an illicit
detection and remediation program in
Houston, Texas, has significantly
improved the water quality of Buffalo
Bayou. Houston estimated that illicit
flows from 132 sources had a flow rate
as high as 500 gal/min. Sources of the
illicit discharges included broken and
plugged sanitary sewer lines, illicit
connections from sanitary lines to storm
sewer lines, and floor drain connections
(Glanton, T., M.T. Garrett, and B.
Goloby. 1992. The Illicit Connection: Is
It the Problem? Wat. Env. Tech. 4(9):63–
8).
3. Construction Site Runoff
Storm water discharges generated
during construction activities can cause
an array of physical, chemical, and
biological water quality impacts.
Specifically, the biological, chemical,
and physical integrity of the waters may
become severely compromised. Water
quality impairment results, in part,
because a number of pollutants are
preferentially absorbed onto mineral or
organic particles found in fine sediment.
The interconnected process of erosion
(detachment of the soil particles),
sediment transport, and delivery is the
primary pathway for introducing key
pollutants, such as nutrients
(particularly phosphorus), metals, and
organic compounds into aquatic systems
(Novotny, V. and G. Chesters. 1989.
‘‘Delivery of Sediment and Pollutants
from Nonpoint Sources: A Water
Quality Perspective.’’ Journal of Soil
and Water Conservation, 44(6):568–76).
Estimates indicate that 80 percent of the
phosphorus and 73 percent of the
Kjeldahl nitrogen in streams is
associated with eroded sediment (U.S.
Department of Agriculture. 1989. ‘‘The
Second RCA Appraisal, Soil, Water and
Related Resources on Nonfederal Land
in the United States, Analysis of
Condition and Trends.’’ Cited in
Fennessey, L.A.J., and A.R. Jarrett. 1994.
‘‘The Dirt in a Hole: a Review of
Sedimentation Basins for Urban Areas
and Construction Sites.’’ Journal of Soil
and Water Conservation, 49(4):317–23).
In watersheds experiencing intensive
construction activity, the localized
impacts of water quality may be severe
because of high pollutant loads,
primarily sediments. Siltation is the
largest cause of impaired water quality
in rivers and the third largest cause of
impaired water quality in lakes (U.S.
EPA, 1998). The 1996 305(b) report also
found that construction site discharges
were a source of pollution in: 6 percent
of impaired rivers; 11 percent of
impaired lakes, ponds, and reservoirs;
and 11 percent of impaired estuaries.
Introduction of coarse sediment (coarse
sand or larger) or a large amount of fine
sediment is also a concern because of
the potential of filling lakes and
reservoirs (along with the associated
remediation costs for dredging), as well
as clogging stream channels (e.g.,
Paterson, R.G., M.I. Luger, E.J. Burby,
E.J. Kaiser, H.R. Malcolm, and A.C.
Beard. 1993. ‘‘Costs and Benefits of
Urban Erosion and Sediment Control:
North Carolina Experience.’’
Environmental Management 17(2):167–
78). Large inputs of coarse sediment into
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
stream channels initially will reduce
stream depth and minimize habitat
complexity by filling in pools (U.S.
EPA. 1991. Monitoring Guidelines to
Evaluate Effects of Forestry Activities on
Streams in the Pacific Northwest and
Alaska. EPA 910/9–91–001. Seattle,
WA). In addition, studies have shown
that stream reaches affected by
construction activities often extend well
downstream of the construction site. For
example, between 4.8 and 5.6
kilometers of stream below construction
sites in the Patuxent River watershed
were observed to be impacted by
sediment inputs (Fox, H.L. 1974.
‘‘Effects of Urbanization on the Patuxent
River, with Special Emphasis on
Sediment Transport, Storage, and
Migration.’’ Ph.D. dissertation. Johns
Hopkins University, Baltimore, MD. As
Cited in Klein, R.D. 1979. ‘‘Urbanization
and Stream Quality Impairment.’’ Water
Resources Bulletin 15(4): 948–63).
A primary concern at most
construction sites is the erosion and
transport process related to fine
sediment because rain splash, rills (i.e.,
a channel small enough to be removed
by normal agricultural practices and
typically less than 1-foot deep), and
sheetwash encourage the detachment
and transport of this material to
waterbodies (Storm Water Quality Task
Force. 1993. California Storm Water
Best Management Practice Handbooks—
Construction Activity. Oakland, CA:
Blue Print Service). Construction sites
also can generate other pollutants
associated with onsite wastes, such as
sanitary wastes or concrete truck
washout.
Although streams and rivers naturally
carry sediment loads, erosion from
construction sites and runoff from
developed areas can elevate these loads
to levels well above those in
undisturbed watersheds. It is generally
acknowledged that erosion rates from
construction sites are much greater than
from almost any other land use
(Novotny, V. and H. Olem. 1994. Water
Quality: Prevention, Identification, and
Management of Diffuse Pollution. New
York: Van Nostrand Reinhold). Results
from both field studies and erosion
models indicate that erosion rates from
construction sites are typically an order
of magnitude larger than row crops and
several orders of magnitude greater than
rates from well-vegetated areas, such as
forests or pastures (USDA. 1970.
‘‘Controlling Erosion on Construction
Sites.’’ Agriculture Information Bulletin,
Washington, DC; Meyer, L.D., W.H.
Wischmeier, and W.H. Daniel. 1971.
‘‘Erosion, Runoff and Revegetation of
Denuded Construction Sites.’’
Transactions of the ASAE 14(1):138–41;
Owen, O.S. 1975. Natural Resource
Conservation. New York: MacMillan. As
cited in Paterson, et al., 1993).
A recent review of the efficiency of
sediment basins indicated that inflows
from 12 construction sites had a mean
TSS concentration of about 4,500 mg/L
(Brown, W.E. 1997. ‘‘The Limits of
Settling.’’ Technical Note No. 83.
Watershed Protection Techniques 2(3)).
In Virginia, suspended sediment
concentrations from housing
construction sites were measured at
500–3,000 mg/L, or about 40 times
larger than the concentrations from
already-developed urban areas (Kuo,
C.Y. 1976. ‘‘Evaluation of Sediment
Yields Due to Urban Development.’’
Bulletin No. 98. Virginia Water
Resources Research Center, Virginia
Polytechnic Institute and State
University, Blacksburg, VA).
Similar impacts from storm water
runoff have been reported in a number
of other studies. For example, Daniel, et
al., monitored three residential
construction sites in southeastern
Wisconsin and determined that annual
sediment yields were more than 19
times the yields from agricultural areas
(Daniel, T.C., D. McGuire, D. Stoffel,
and B. Miller. 1979. ‘‘Sediment and
Nutrient Yield from Residential
Construction Sites’’ Journal of
Environmental Quality 8(3):304–08).
Daniel, et al., identified total storm
runoff, followed by peak storm runoff,
as the most influential factors
controlling the sediment loadings from
residential construction sites. Daniel, et
al., also found that suspended sediment
concentrations were 15,000–20,000 mg/
L in moderate events and up to 60,000
mg/L in larger events.
Wolman and Schick (Wolman, M.G.
and A.P. Schick. 1967. ‘‘Effects of
Construction on Fluvial Sediment,
Urban and Suburban Areas of
Maryland.’’ Water Resources Research
3(2): 451–64) studied the impacts of
development on fluvial systems in
Maryland and determined that sediment
yields in areas undergoing construction
were 1.5 to 75 times greater than
detected in natural or agricultural
catchments. The authors summarize the
potential impacts of construction on
sediment yields by stating that ‘‘the
equivalent of many decades of natural
or even agricultural erosion may take
place during a single year from areas
cleared for construction’’ (Wolman and
Schick, 1967).
A number of studies have examined
the effects of road construction on
erosion rates and sediment yields. A
highway construction project in West
Virginia disturbed only 4.2 percent of a
4.72-square-mile basin, but resulted in a
68729
three-fold increase in suspended
sediment yields (Downs, S.C. and D.H.
Appel. 1986. Progress Report on the
Effects of Highway Construction on
Suspended-Sediment Discharge in the
Coal River and Trace Fork, West
Virginia, 1975–81. USGS Water
Resources Investigations Report 84–
4275. Charlestown, WV). During the
largest storm event, it was estimated
that 80 percent of the sediment in the
stream originated from the construction
site. As is often the case, the increase in
suspended sediment load could not be
detected further downstream, where the
drainage area was more than 50 times
larger (269 square miles).
Another study evaluated the effect of
290 acres of highway construction on
watersheds ranging in size from 5 to 38
square miles. Suspended sediment loads
in the smallest watershed increased by
250 percent, and the estimated sediment
yield from the construction area was 37
tons/acre during a 2-year period
(Hainly, R.A. 1980. The Effects of
Highway Construction on Sediment
Discharge into Blockhouse Creek and
Stream Valley Run, Pennsylvania. USGS
Water Resources Investigations Report
80–68. Harrisburg, PA). A more recent
study in Hawaii showed that highway
construction increased suspended
sediment loads by 56 to 76 percent in
three small (1 to 4 square mile) basins
(Hill, B.R. 1996. Streamflow and
Suspended-Sediment Loads Before and
During Highway Construction, North
Halawa, Haiku, and Kamooalii Drainage
Basins, Oahu, Hawaii, 1983–91. USGS
Water Resources Investigations Report
96–4259. Honolulu, HI). A 1970 study
determined that sediment yields from
construction areas can be as much as
500 times the levels detected in rural
areas (National Association of Counties
Research Foundation. 1970. Urban Soil
Erosion and Sediment Control. Water
Pollution Control Research Series,
Program #15030 DTL. Federal Water
Quality Administration, U.S.
Department of Interior. Washington, DC)
Yorke and Herb (Yorke, T.H., and W.J.
Herb. 1978. Effects of Urbanization on
Streamflow and Sediment Transport in
the Rock Creek and Anacostia River
Basins, Montgomery County, Maryland,
1962–74. USGS Professional Paper 1003,
Washington, DC) evaluated nine
subbasins in the Maryland portion of
the Anacostia watershed for more than
a decade in an effort to define the
impacts of changing land use/land cover
on sediment in runoff. Average annual
suspended sediment yields for
construction sites ranged from 7 to 100
tons/acre. Storm water discharges from
construction sites that occur when the
land area is disturbed (and prior to
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68730 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
surface stabilization) can significantly
impact designated uses. Examples of
designated uses include public water
supply, recreation, and propagation of
fish and wildlife. The siltation process
described previously can threaten all
three designated uses by (1) depositing
high concentrations of pollutants in
public water supplies; (2) decreasing the
depth of a waterbody, which can reduce
the volume of a reservoir or result in
limited use of a water body by boaters,
swimmers, and other recreational
enthusiasts; and (3) directly impairing
the habitat of fish and other aquatic
species, which can limit their ability to
reproduce.
Excess sediment can cause a number
of other problems for waterbodies. It is
associated with increased turbidity and
reduced light penetration in the water
column, as well as more long-term
effects associated with habitat
destruction and increased difficulty in
filtering drinking water. Numerous
studies have examined the effect that
excess sediment has on aquatic
ecosystems. For example, sediment from
road construction activity in Northern
Virginia reduced aquatic insect and fish
communities by up to 85 percent and 40
percent, respectively (Reed, J.R. 1997.
‘‘Stream Community Responses to Road
Construction Sediments.’’ Bulletin No.
97. Virginia Water Resources Research
Center, Virginia Polytechnic Institute,
Blacksburg, VA. As cited in Klein, R.D.
1990. A Survey of Quality of Erosion
and Sediment Control and Storm Water
Management in the Chesapeake Bay
Watershed. Annapolis, MD: Chesapeake
Bay Foundation). Other studies have
shown that fine sediment (fine sand or
smaller) adversely affects aquatic
ecosystems by reducing light
penetration, impeding sight-feeding,
smothering benthic organisms, abrading
gills and other sensitive structures,
reducing habitat by clogging interstitial
spaces within a streambed, and
reducing the intergravel dissolved
oxygen by reducing the permeability of
the bed material (Everest, F.H., J.C.
Beschta, K.V. Scrivener, J.R. Koski, J.R.
Sedell, and C.J. Cederholm. 1987. ‘‘Fine
Sediment and Salmonid Production: A
Paradox.’’ Streamside Management:
Forestry and Fishery Interactions,
Contract No. 57, Institute of Forest
Resources, University of Washington,
Seattle, WA). For example, 4.8 and 5.6
kilometers of stream below construction
sites in the Patuxent River watershed in
Maryland were found to have fine
sediment amounts 15 times greater than
normal (Fox, 1974. As cited in Klein,
1979). Benthic organisms in the
streambed can be smothered by
sediment deposits, causing changes in
aquatic flora and fauna, such as fish
species composition (Wolman and
Schick, 1967). In addition, the primary
cause of coral reef degradation in coastal
areas is attributed to land disturbances
and dredging activities due to urban
development (Rogers, C.S. 1990.
‘‘Responses of Coral Reefs and Reef
Organizations to Sedimentation.’’
Marine Ecology Progress Series, 62:185–
202).
EPA believes that the water quality
impact from small construction sites is
as high as or higher than the impact
from larger sites on a per acre basis. The
concentration of pollutants in the runoff
from smaller sites is similar to the
concentrations in the runoff from larger
sites. The proportion of sediment that
makes it from the construction site to
surface waters is likely the same for
larger and smaller construction sites in
urban areas because the runoff from
either site is usually delivered directly
to the storm drain network where there
is no opportunity for the sediment to be
filtered out.
The expected contribution of total
sediment yields from small sites
depends, in part, on the extent to which
erosion and sedimentation controls are
being applied. Because current storm
water regulations are more likely to
require erosion and sedimentation
controls on larger sites in urban areas,
smaller construction sites that lack such
programs are likely to contribute a
disproportionate amount of the total
sediment from construction activities
(MacDonald, L.H. 1997. Technical
Justification for Regulating Construction
Sites 1–5 Acres in Size. Unpublished
report submitted to U.S. EPA,
Washington, DC). Smaller construction
sites are less likely to have an effective
plan to control erosion and
sedimentation, are less likely to
properly implement and maintain their
plans, and are less likely to be inspected
(Brown, W. and D. Caraco. 1997.
Controlling Storm Water Runoff
Discharges from Small Construction
Sites: A National Review. Submitted to
Office of Wastewater Management, U.S.
EPA, Washington, DC., by the Center for
Watershed Protection, Silver Spring,
MD). The proportion of sediment that
makes it from the construction site to
surface waters is likely the same for
larger and smaller construction sites in
urban areas because the runoff from
either site is usually delivered directly
to the storm drain network, where there
is no opportunity for the sediment to be
filtered out.
To confirm its belief that sediment
yields from small sites are as high as or
higher than the 20 to 150 tons/acre/year
measured from larger sites, EPA gave a
grant to the Dane County, Wisconsin
Land Conservation Department, in
cooperation with the USGS, to evaluate
sediment runoff from two small
construction sites. The first was a 0.34
acre residential lot and the second was
a 1.72 acre commercial office
development. Runoff from the sites was
channeled to a single discharge point for
monitoring. Each site was monitored
before, during, and after construction.
The Dane County study found that
total solids concentrations from these
small sites are similar to total solids
concentrations from larger construction
sites. Results show that for both of the
study sites, total solids and suspended
solids concentrations were significantly
higher during construction than either
before or after construction. For
example, preconstruction total solids
concentrations averaged 642 mg/L
during the period when ryegrass was
established, active construction total
solids concentrations averaged 2,788
mg/L, and post-construction total solids
concentrations averaged 132 mg/L (on a
pollutant load basis, this equaled 7.4 lbs
preconstruction, 35 lbs during
construction, and 0.6 lbs postconstruction
for total solids). While this
site was not properly stabilized before
construction, after construction was
complete and the site was stabilized,
post-construction concentrations were
more than 20 times less than during
construction. The results were even
more dramatic for the commercial site.
The commercial site had one
preconstruction event, which resulted
in total solids concentrations of 138 mg/
L, while active construction averaged
more than 15,000 mg/L and postconstruction
averaged only 200 mg/L
(on a pollutant load basis, this equaled
0.3 lbs preconstruction, 490 lbs during
construction, and 13.4 lbs postconstruction
for total solids). The active
construction period resulted in more
than 75 times more sediment than either
before or after construction (Owens,
D.W., P. Jopke, D.W. Hall, J. Balousek
and A. Roa. 1999. ‘‘Soil Erosion from
Small Construction Sites.’’ Draft USGS
Fact Sheet. USGS and Dane County
Land Conservation Department, WI).
The total solids concentrations from
these small sites in Wisconsin are
similar to total solids concentrations
from larger construction sites. For
example, a study evaluating the effects
of highway construction in West
Virginia found that a small storm
produced a sediment concentration of
7,520 mg/L (Downs and Appel, 1986).
One important aspect of small
construction sites is the number of small
sites relative to larger construction sites
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
and total land area within the
watershed. Brown and Caraco surveyed
219 local jurisdictions to assess erosion
and sediment control (ESC) programs.
Seventy respondents provided data on
the number of ESC permits for
construction sites smaller than 5 acres.
In 27 cases (38 percent of the
respondents), more than three-quarters
of the permits were for sites smaller
than 5 acres; in another 18 cases (26
percent), more than half of the permits
were for sites smaller than 5 acres.
In addition, data on the total acreage
disturbed by smaller construction sites
have been collected recently in two
States (MacDonald, 1997). The most
recent and complete data set is the
listing of the disturbed area for each of
the 3,831 construction sites permitted in
North Carolina for 1994–1995 and
1995–1996. Nearly 61 percent of the
sites that were 1 acre or larger were
between 1.0 and 4.9 acres in size. This
proportion was consistent between
years. Data showed that this range of
sites accounted for 18 percent of the
total area disturbed by construction. The
values showed very little variation
between the 2 years of data. The total
disturbed area for all sites over this 2year
period was nearly 33,000 acres, or
about 0.1 percent of the total area of
North Carolina.
EPA estimates that construction sites
disturbing greater than 5 acres disturb
2.1-million acres of land (78.1 percent of
the total) while sites disturbing between
1 and 5 acres of land disturb 0.5-million
acres of land (19.4 percent). The
remaining sites on less than 1 acres of
land disturb 0.07-million acres of land
(only 2.5 percent of the total). Given the
high erosion rates associated with most
construction sites, small construction
sites can be a significant source of water
quality impairment, particularly in
small watersheds that are undergoing
rapid development. Exempting sites
under 1 acre will exclude only about 2.5
percent of acreage from program
coverage, but will exclude a far higher
number of sites, approximately 25
percent.
Several studies have determined that
the most effective construction runoff
control programs rely on local plan
review and field enforcement (Paterson,
R. G. 1994. ‘‘Construction Practices: the
Good, the Bad, and the Ugly.’’
Watershed Protection Techniques 1(3)).
In his review, Paterson suggests that,
given the critical importance of field
implementation of erosion and sediment
control programs and the apparent
shortcomings that exist, much more
focus should be given to plan
implementation.
Several commenters disputed the data
presented in the proposed rule for storm
water discharges from smaller
construction sites. One commenter
stated that EPA has not adequately
explained the basis for permitting
construction activity down to 1
disturbed acre. Another commenter
stated that EPA did not present
sufficient data on water quality impacts
from construction sites disturbing less
than 5 acres.
EPA believes that the data presented
above sufficiently support nationwide
designation of storm water discharges
from construction activity disturbing
more than 1 acre. Based on total
disturbed land area within a watershed,
the cumulative effects of numerous
small construction sites can have
impacts similar to those of larger sites
in a particular area. In addition, waivers
for storm water discharges from smaller
construction activity will exclude sites
not expected to impair water quality.
EPA will continue to collect water
quality data on construction site storm
water runoff.
C. Statutory Background
In 1972, Congress enacted the CWA to
prohibit the discharge of any pollutant
to waters of the United States from a
point source unless the discharge is
authorized by an NPDES permit.
Congress added CWA section 402(p) in
1987 to require implementation of a
comprehensive program for addressing
storm water discharges. Section
402(p)(1) required EPA or NPDESauthorized
States or Tribes to issue
NPDES permits for the following five
classes of storm water discharges
composed entirely of storm water
(‘‘storm water discharges’’) specifically
listed under section 402(p)(2):
(A) a discharge subject to an NPDES
permit before February 4, 1987
(B) a discharge associated with
industrial activity
(C) a discharge from a municipal
separate storm sewer system serving a
population of 250,000 or more
(D) a discharge from a municipal
separate storm sewer system serving a
population of 100,000 or more but less
than 250,000
(E) a discharge that an NPDES
permitting authority determines to be
contributing to a violation of a water
quality standard or a significant
contributor of pollutants to the waters of
the United States.
Section 402(p)(3)(A) requires storm
water discharges associated with
industrial activity to meet all applicable
provisions of section 402 and section
301 of the CWA, including technologybased
requirements and any more
68731
stringent requirements necessary to
meet water quality standards. Section
402(p)(3)(B) establishes NPDES permit
standards for discharges from municipal
separate storm sewer systems, or MS4s.
NPDES permits for discharges from
MS4s (1) may be issued on a system or
jurisdiction-wide basis, (2) must include
a requirement to effectively prohibit
non-storm water discharges into the
storm sewers, and (3) must require
controls to reduce pollutant discharges
to the maximum extent practicable,
including best management practices,
and other provisions as the
Administrator or the States determine to
be appropriate for the control of such
pollutants. At this time, EPA determines
that water quality-based controls,
implemented through the iterative
processes described today are
appropriate for the control of such
pollutants and will result in reasonable
further progress towards attainment of
water quality standards. See sections
II.L and II.H.3 of the preamble.
In CWA section 402(p)(4), Congress
established statutory deadlines for the
initial steps in implementing the NPDES
program for storm water discharges.
This section required development of
NPDES permit application regulations,
submission of NPDES permit
applications, issuance of NPDES
permits for sources identified in section
402(p)(2), and compliance with NPDES
permit conditions. In addition, this
section required industrial facilities and
large MS4s to submit NPDES permit
applications for storm water discharges
by February 4, 1990. Medium MS4s
were to submit NPDES permit
applications by February 4, 1992. EPA
and authorized NPDES States were
prohibited from requiring an NPDES
permit for any other storm water
discharges until October 1, 1994.
Section 402(p)(5) required EPA to
conduct certain studies and submit a
report to Congress. This requirement is
discussed in the following section.
Section 402(p)(6) requires EPA, in
consultation with States and local
officials, to issue regulations for the
designation of additional storm water
discharges to be regulated to protect
water quality. It also requires EPA to
extend the existing storm water program
to regulate newly designated sources. At
a minimum, the extension must
establish (1) priorities, (2) requirements
for State storm water management
programs, and (3) expeditious
deadlines. Section 402(p)(6) specifies
that the program may include
performance standards, guidelines,
guidance, and management practices
and treatment requirements, as
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68732 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
appropriate. Today’s rule implements
this section.
D. EPA’s Reports to Congress
Under CWA section 402(p)(5), EPA, in
consultation with the States, was
required to conduct a study. The study
was to identify unregulated sources of
storm water discharges, determine the
nature and extent of pollutants in such
discharges, and establish procedures
and methods to mitigate the impacts of
such discharges on water quality.
Section 402(p)(5) also required EPA to
report the results of the first two
components of that study to Congress by
October 1, 1988, and the final report by
October 1, 1989.
In March 1995, EPA submitted to
Congress a report that reviewed and
analyzed the nature of storm water
discharges from municipal and
industrialacilities that were not already
regulated under the initial NPDES
regulations for storm water (U.S.
Environmental Protection Agency,
Office of Water. 1995. Storm Water
Discharges Potentially Addressed by
Phase II of the National Pollutant
Discharge Elimination System Storm
Water Program: Report to Congress.
Washington, D.C. EPA 833–K–94–002)
(‘‘Report’’). The Report also analyzed
associated pollutant loadings and water
quality impacts from these unregulated
sources. Based on identification of
unregulated municipal sources and
analysis of information on impacts of
storm water discharges from municipal
sources, the Report recommended that
the NPDES program for storm water
focus on the 405 ‘‘urbanized areas’’
identified by the Bureau of the Census.
The Report further found that a number
of discharges from unregulated
industrial facilities warranted further
investigation to determine the need for
regulation. It classified these
unregulated industrial discharges in two
groups: Group A and Group B. Group A
comprised sources that may be
considered a high priority for inclusion
in the NPDES program for storm water
because discharges from these sources
are similar or identical to already
regulated sources. These ‘‘look alike’’
storm water discharge sources were not
covered in the initial NPDES regulations
for storm water due to the language used
to define ‘‘associated with industrial
activity.’’ In the initial regulations for
storm water, ‘‘industrial activity’’ is
identified using Standard Industrial
Classification (SIC) codes. The use of
SIC codes led to incomplete
categorization of industrial activities
with discharges that needed to be
regulated to protect water quality.
Group B consisted of 18 industrial
sectors, which included sources that
EPA expected to contribute to storm
water contamination due to the
activities conducted and pollutants
anticipated onsite (e.g., vehicle
maintenance, machinery and electrical
repair, and intensive agricultural
activities).
EPA reported on the latter component
of the section 402(p)(5) study via
President Clinton’s Clean Water
Initiative, which was released on
February 1, 1994 (U.S. Environmental
Protection Agency, Office of Water.
1994. President Clinton’s Clean Water
Initiative. Washington, D.C. EPA 800–R–
94–001) (‘‘Initiative’’). The Initiative
addressed a number of issues associated
with NPDES requirements for storm
water discharges and proposed (1)
establishing a phased compliance with
a water quality standards approach for
discharges from municipal separate
storm sewer systems with priority on
controlling discharges from municipal
growth and development areas, (2)
clarifying that the maximum extent
practicable standard should be applied
in a site-specific, flexible manner, taking
into account cost considerations as well
as water quality effects, (3) providing an
exemption from the NPDES program for
storm water discharges from industrial
facilities with no activities or significant
materials exposed to storm water, (4)
providing extensions to the statutory
deadlines to complete implementation
of the NPDES program for the storm
water program, (5) targeting urbanized
areas for the requirements in the NPDES
program for storm water, and (6)
providing control of discharges from
inactive and abandoned mines located
on Federal lands in a more targeted,
flexible manner. Additionally, prior to
promulgation of today’s rule, section
431 of the Agency’s Appropriation Act
for FY 2000 (Departments of Veterans
Affairs and Housing and Urban
Development and Independent Agencies
Appropriations Act of 2000, Public Law
106–74, section 432 (1999)) directed
EPA to report on certain matters to be
covered in today’s rule. That report
supplements the study required by
CWA Section 402(p)(5). EPA is
publishing the availability of that report
elsewhere in this issue of the Federal
Register.
Several commenters asserted that the
Report to Congress is an inadequate
basis for the designation and regulation
of sources covered under today’s final
rule, specifically the nationwide
designation of small municipal separate
storm sewer systems within urbanized
areas and construction activities
disturbing between one and five acres.
EPA believes that it has developed an
adequate record for today’s regulation
both through the Report to Congress and
the Clean Water Initiative and through
more recent activities, including the
FACA Subcommittee process, regulatory
notices and evaluation of comments,
and recent research and analysis. EPA
does not interpret the congressional
reporting requirements of CWA section
402(p)(5) to be the sole basis for
determining sources to be regulated
under today’s final rule.
EPA’s decision to designate on a
national basis small MS4s in urbanized
areas is supported by studies that
clearly show a direct correlation
between urbanization and adverse water
quality impacts from storm water
discharges. (Schueler, T. 1987.
Controlling Urban Runoff: A Practical
Manual for Planning & Designing Urban
BMPs. Metropolitan Washington
Council of Governments). ‘‘Urbanized
areas’’—within which all small MS4s
would be covered—represent the most
intensely developed and dense areas of
the Nation. They constitute only two
percent of the land area but 63 percent
of the total population. See section I.B.1,
Urban Development, above, for studies
and assessments of the link between
urban development and storm water
impacts on water resources.
Commenters argued that the Report to
Congress does not address storm water
discharges from construction sites. They
further argued that the designation of
small construction sites per today’s final
rule goes beyond the President’s 1994
Initiative because the Initiative only
recommends requiring municipalities to
implement a storm water management
program to control unregulated storm
water sources, ‘‘including discharges
from construction of less than 5 acres,
which are part of growth, development
and significant redevelopment
activities.’’ They point out that the
Initiative provides that unregulated
storm water discharges not addressed
through a municipal program would not
be covered by the NPDES program.
Commenters assert that EPA has not
developed a record independent of its
section 402(p)(5) studies that
demonstrates the necessity of regulating
under a separate NPDES permit storm
water discharges from smaller
construction sites ‘‘to protect water
quality.’’ EPA disagrees.
EPA evaluated the nature and extent
of pollutants from construction site
sources in a process that was separate
and distinct from the development of
the Report to Congress. Today’s decision
to regulate certain storm water
discharges from construction sites
disturbing less than 5 acres arose in part
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
out of the 9th Circuit remand in NRDC
v. EPA, 966 F.2d 1292 (9th Cir. 1992).
In that case, the court remanded
portions of the Phase I storm water
regulations related to discharges from
construction sites. Those regulations
define ‘‘storm water discharges
associated with industrial activity’’ to
include only those storm water
discharges from construction sites
disturbing 5 acres or more of total land
area (see 40 CFR 122.26(b)(14)(x)). In its
decision, the court concluded that the 5acre
threshold was improper because
the Agency had failed to identify
information ‘‘to support its perception
that construction activities on less than
5 acres are non-industrial in nature’’
(966 F.2d at 1306). The court remanded
the below 5 acre exemption to EPA for
further proceedings (966 F.2d at 1310).
In a Federal Register notice issued on
December 18, 1992, EPA noted that it
did not believe that the Court’s decision
had the effect of automatically
subjecting small construction sites to
the existing application requirements
and deadlines. EPA believed that
additional notice and comment were
necessary to clarify the status of these
sites. The information received during
the notice and comment process and
additional research, as discussed in
section I.B.3 Construction Site Runoff,
formed the basis for the designation of
construction activity disturbing between
one and five acres on a nationwide
basis. EPA’s objectives in today’s
proposal include an effort to (1) address
the 9th Circuit remand, (2) address
water quality concerns associated with
construction activities that disturb less
than 5 acres of land, and (3) balance
conflicting recommendations and
concerns of stakeholders.
One commenter noted that EPA’s
proposal would fail to regulate
industrial facilities identified as Group
A and Group B in the March 1995
Report to Congress. EPA is relying on
the analysis in the Report, which
provided that the recommendation for
coverage was meant as guidance and
was not intended to be an identification
of specific categories that must be
regulated under Section 402(p)(6).
Report to Congress, p. 4–1. The Report
recognized the existence of limited data
on which to base loadings estimates to
support the nationwide designation of
individual or categories of sources.
Report to Congress, p. 4–44.
Furthermore, during FACA
Subcommittee discussion, EPA
continued to urge stakeholders to
provide further data relating to
industrial and commercial storm water
sources, which EPA did not receive.
EPA concluded that, due to insufficient
data, these sources were not appropriate
for nationwide designation at this time.
E. Industrial Facilities Owned or
Operated by Small Municipalities
Congress granted extensions to the
NPDES permit application process for
selected classes of storm water
discharges associated with industrial
activity. On December 18, 1991,
Congress enacted the Intermodal
Surface Transportation Efficiency Act
(ISTEA), which postponed NPDES
permit application deadlines for most
storm water discharges associated with
industrial activity at facilities that are
owned or operated by small
municipalities. EPA and States
authorized to administer the NPDES
program could not require any
municipality with a population of less
than 100,000 to apply for or obtain an
NPDES permit for any storm water
discharge associated with industrial
activity prior to October 1, 1992, except
for storm water discharges from airports,
power plants, or uncontrolled sanitary
landfills. See 40 CFR 122.26(e)(1); 57 FR
11524, April 2, 1992 (reservation of
NPDES application deadlines for ISTEA
facilities).
The facilities exempted by ISTEA
discharge storm water in the same
manner (and are expected to use
identical processes and materials) as the
industrial facilities regulated under the
1990 Phase I regulations. Accordingly,
these facilities pose similar water
quality problems. The extended
moratorium for these facilities was
necessary to allow municipalities
additional time to comply with NPDES
requirements. The proposal for today’s
rule would have maintained the existing
deadline for seeking coverage under an
NPDES permit (August 7, 2001).
Today’s rule changes the permit
application deadline for such
municipally owned or operated
facilities discharging industrial storm
water to make it consistent with the
application date for small regulated
MS4s. Because EPA missed its March
1999 deadline for promulgating today’s
rule, and the deadline for MS4s to
submit permit applications has been
extended to three years and 90 days
from the date of this notice, the deadline
for permitting ISTEA sources has been
similarly extended. The permitting of
these sources is discussed below in
section ‘‘II.I.3. ISTEA Sources.’’
F. Related Nonpoint Source Programs
Today’s rule addresses point source
discharges of storm water runoff and
non-storm water discharges into MS4s.
Many of these sources have been
addressed by nonpoint source control
68733
programs, which are described briefly
below.
In 1987, section 319 was added to the
CWA to provide a framework for
funding State and local efforts to
address pollutants from nonpoint
sources not addressed by the NPDES
program. To obtain funding, States are
required to submit Nonpoint Source
Assessment Reports identifying State
waters that, without additional control
of nonpoint sources of pollution, could
not reasonably be expected to attain or
maintain applicable water quality
standards or other goals and
requirements of the CWA. States are
also required to prepare and submit for
EPA approval a statewide Nonpoint
Source Management Program for
controlling nonpoint source water
pollution to navigable waters within the
State and improving the quality of such
waters. State program submittals must
identify specific best management
practices (BMPs) and measures that the
State proposes to implement in the first
four years after program submission to
reduce pollutant loadings from
identified nonpoint sources to levels
required to achieve the stated water
quality objectives.
State nonpoint source programs
funded under section 319 can include
both regulatory and nonregulatory State
and local approaches. Section
319(b)(2)(B) specifies that a combination
of ‘‘nonregulatory or regulatory
programs for enforcement, technical
assistance, financial assistance,
education, training, technology transfer,
and demonstration projects’ may be
used, as necessary, to achieve
implementation of the BMPs or
measures identified in the section 319
submittals.
Section 6217 of the Coastal Zone Act
Reauthorization Amendments (CZARA)
of 1990 provides that States with
approved coastal zone management
programs must develop coastal
nonpoint pollution control programs
and submit them to EPA and the
National Oceanic and Atmospheric
Administration (NOAA) for approval.
Failure to submit an approvable
program will result in a reduction of
Federal grants under both the Coastal
Zone Management Act and section 319
of the CWA.
State coastal nonpoint pollution
control programs under CZARA must
include enforceable policies and
mechanisms that ensure
implementation of the management
measures throughout the coastal
management area. EPA issued Guidance
Specifying Management Measures for
Sources of Nonpoint Pollution in
Coastal Waters under section 6217(g) in
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68734 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
January 1993. The guidance identifies
management measures for five major
categories of nonpoint source pollution.
The management measures reflect the
greatest degree of pollutant reduction
that is economically achievable for each
of the listed sources. These management
measures provide reference standards
for the States to use in developing or
refining their coastal nonpoint
programs. A few management measures,
however, contain quantitative standards
that specify pollutant loading
reductions. For example, the New
Development Management Measure,
which is applicable to construction in
urban areas, requires (1) that by design
or performance the average annual total
suspended solid loadings be reduced by
80 percent and (2) to the extent
practicable, that the pre-development
peak runoff rate and average volume be
maintained.
EPA and NOAA published Coastal
Nonpoint Pollution Control Program:
Program Development and Approval
Guidance (1993). The document
clarifies that States generally must
implement management measures for
each source category identified in the
EPA guidance developed under section
6217(g). Coastal Nonpoint Pollution
Control Programs are not required to
address sources that are clearly
regulated under the NPDES program as
point source discharges. Specifically,
such programs would not need to
address small MS4s and construction
sites covered under NPDES storm water
permits (both general and individual).
II. Description of Program
A. Overview
1. Objectives EPA Seeks To Achieve in
Today’s Rule
EPA seeks to achieve several
objectives in today’s final rule. First,
EPA is implementing the requirement
under CWA section 402(p)(6) to provide
a comprehensive storm water program
that designates and controls additional
sources of storm water discharges to
protect water quality. Second, EPA is
addressing storm water discharges from
the activities exempted under the 1990
storm water permit application
regulations that were remanded by the
Ninth Circuit Court of Appeals in NRDC
v. EPA, 966 F.2d 1292 (9th Circuit,
1992). These are construction activities
disturbing less than 5 acres and socalled
‘‘light’’ industrial activities not
exposed to storm water (see discussion
of ‘‘no exposure’’ below). Third, EPA is
providing coverage for the so-called
‘‘donut holes’’ created by the existing
NPDES storm water program. Donut
holes are geographic gaps in the NPDES
storm water program’s regulatory
scheme. They are MS4s located within
areas covered by the existing NPDES
storm water program, but not currently
addressed by the storm water program
because it is based on political
jurisdictions. Finally, EPA also is trying
to promote watershed planning as a
framework for implementing water
quality programs where possible.
Although EPA had options for
different approaches (see alternatives
discussed in the January 9, 1998,
proposed regulation), EPA believes it
can best achieve its objectives through
flexible innovations within the
framework of the NPDES program.
Unlike the interim section 402(p)(6)
storm water regulations EPA
promulgated in 1995, EPA no longer
designates all of the unregulated storm
water discharges for nationwide
coverage under the NPDES program for
storm water. The framework for today’s
final rule is one that balances automatic
designation on a nationwide basis and
locally-based designation and waivers.
Nationwide designation applies to those
classes or categories of storm water
discharges that EPA believes present a
high likelihood of having adverse water
quality impacts, regardless of location.
Specifically, today’s rule designates
discharges from small MS4s located in
urbanized areas and storm water
discharges from construction activities
that result in land disturbance equal to
or greater than one and less than five
acres. As noted under Section I.B.,
Water Quality Concerns/Environmental
Impact Studies and Assessments, these
two categories of storm water sources,
when unregulated, tend to cause
significant adverse water quality
impacts. Additional sources are not
covered on a nationwide basis either
because EPA currently lacks
information indicating a consistent
potential for adverse water quality
impact or because EPA believes that the
likelihood of adverse impacts on water
quality is low, with some localized
exceptions. Additional individual
sources or categories of storm water
discharges could, however, be covered
under the program through a local
designation process. A permitting
authority may designate additional
small MS4s after developing designation
criteria and applying those criteria to
small MS4s located outside of an
urbanized area, in particular those with
a population of 10,000 or more and a
population density of at least 1,000.
Exhibit 1 illustrates the designation
framework for today’s final rule.
BILLING CODE 6560–50–P
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BILLING CODE 6560–50–C
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68735

68736 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
The designation framework for
today’s final rule provides a significant
degree of flexibility. The proposed
provisions for nationwide designation of
storm water discharges from
construction and from small MS4s in
urbanized areas allowed for a waiver of
applicable requirements based on
appropriate water quality conditions.
Today’s final rule expands and
simplifies those waivers.
The permitting authority may waive
the requirement for a permit for any
small MS4 serving a jurisdiction with a
population of less than 1,000 unless
storm water controls are needed because
the MS4 is contributing to a water
quality impairment. The permitting
authority may also waive permit
coverage for MS4s serving a jurisdiction
with a population of less than 10,000 if
all waters that receive a discharge from
the MS4 have been evaluated and
discharges from the MS4 do not
significantly contribute to a water
quality impairment or have the potential
to cause an impairment. Today’s rule
also allows States with a watershed
permitting approach to phase in
coverage for MS4s in jurisdictions with
populations under 10,000.
Water quality conditions are also the
basis for a waiver of requirements for
storm water discharges from
construction activities disturbing
between one and five acres. For these
small construction sources, the rule
provides significant flexibility for
waiving otherwise applicable regulatory
requirements where a permitting
authority determines, based on water
quality and watershed considerations,
that storm water discharge controls are
not needed.
Coverage can be extended to
municipal and construction sources
outside the nationwide designated
classes or categories based on watershed
and case-by-case assessments. For the
municipal storm water program, today’s
rule provides broad discretion to NPDES
permitting authorities to develop and
implement criteria for designating storm
water discharges from small MS4s
outside of urbanized areas. Other storm
water discharges from unregulated
industrial, commercial, and residential
sources will not be subject to the NPDES
permit requirements unless a permitting
authority determines on a case-by-case
basis (or on a categorical basis within
identified geographic areas such as a
State or watershed) that regulatory
controls are needed to protect water
quality. EPA believes that the flexibility
provided in today’s rule facilitates
watershed planning.
2. General Requirements for Regulated
Entities Under Today’s Rule
As previously noted, today’s final rule
defines additional classes and categories
of storm water discharges for coverage
under the NPDES program. These
designated dischargers are required to
seek coverage under an NPDES permit.
Furthermore, all NPDES-authorized
States and Tribes are required to
implement these provisions and make
any necessary amendments to current
State and Tribal NPDES regulations to
ensure consistency with today’s final
rule. EPA remains the NPDES
permitting authority for jurisdictions
without NPDES authorization.
Today’s final rule includes some new
requirements for NPDES permitting
authorities implementing the CWA
section 402(p)(6) program. EPA has
made a significant effort to build
flexibility into the program while
attempting to maintain an appropriate
level of national consistency. Permitting
authorities must ensure that NPDES
permits issued to MS4s include the
minimum control measures established
under the program. Permitting
authorities also have the ability to make
numerous decisions including who is
regulated under the program, i.e., caseby-case
designations and waivers, and
how responsibilities should be allocated
between regulated entities.
Today’s final rule extends the NPDES
program to include discharges from the
following: small MS4s within urbanized
areas (with the exception of systems
waived from the requirements by the
NPDES permitting authority); other
small MS4s meeting designation criteria
to be established by the permitting
authority; and any remaining MS4 that
contributes substantially to the storm
water pollutant loadings of a physically
interconnected MS4 already subject to
regulation under the NPDES program.
Small MS4s include urban storm sewer
systems owned by Tribes, States,
political subdivisions of States, as well
as the United States, and other systems
located within an urbanized area that
fall within the definition of an MS4.
These include, for example, State
departments of transportation (DOTs),
public universities, and federal military
bases.
Today’s final rule requires all
regulated small MS4s to develop and
implement a storm water management
program. Program components include,
at a minimum, 6 minimum measures to
address: public education and outreach;
public involvement; illicit discharge
detection and elimination; construction
site runoff control; post-construction
storm water management in new
development and redevelopment; and
pollution prevention and good
housekeeping of municipal operations.
These program components will be
implemented through NPDES permits.
A regulated small MS4 is required to
submit to the NPDES permitting
authority, either in its notice of intent
(NOI) or individual permit application,
the BMPs to be implemented and the
measurable goals for each of the
minimum control measures listed
above.
The rule addresses all storm water
discharges from construction site
activities involving clearing, grading
and excavating land equal to or greater
than 1 acre and less than 5 acres, unless
requirements are otherwise waived by
the NPDES permitting authority.
Discharges from such sites, as well as
construction sites disturbing less than 1
acre of land that are designated by the
permitting authority, are required to
implement requirements set forth in the
NPDES permit, which may reference the
requirements of a qualifying local
program issued to cover such
discharges.
The rule also addresses certain other
sources regulated under the existing
NPDES program for storm water. For
municipally-owned industrial sources
required to be regulated under the
existing NPDES storm water program
but exempted from immediate
compliance by the Intermodal Surface
Transportation Act of 1991 (ISTEA), the
rule revises the existing deadline for
seeking coverage under an NPDES
permit (August 7, 2001) to make it
consistent with the application date for
small regulated MS4s. (See section I.3.
below.) The rule also provides relief
from NPDES storm water permitting
requirements for industrial sources with
no exposure of industrial materials and
activities to storm water.
3. Integration of Today’s Rule With the
Existing Storm Water Program
In developing an approach for today’s
final rule, numerous early interested
stakeholders encouraged EPA to seek
opportunities to integrate, where
possible, the proposed Phase II
requirements with existing Phase I
requirements, thus facilitating a unified
storm water discharge control program.
EPA believes that this objective is met
by using the NPDES framework. This
framework is already applied to
regulated storm water discharge sources
and is extended to those sources
designated under today’s rule. This
approach facilitates program
consistency, public access to
information, and program oversight.
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
EPA believes that today’s final rule
provides consistency in terms of
program coverage and requirements for
existing and newly designated sources.
For example, the rule includes most of
the municipal donut holes, those MS4s
located in incorporated places,
townships or towns with a population
under 100,000 that are within Phase I
counties. These MS4s are not addressed
by the existing NPDES storm water
program while MS4s in the surrounding
county are currently addressed. In
addition, the minimum control
measures required in today’s rule for
regulated small MS4s are very similar to
a number of the permit requirements for
medium and large MS4s under the
existing storm water program. Following
today’s rule, permit requirements for all
regulated MS4s (both those under the
existing program and those under
today’s rule) will require
implementation of BMPs. Furthermore,
with regard to the development of
NPDES permits to protect water quality,
EPA intends to apply the August 1,
1996, Interim Permitting Approach for
Water Quality-Based Effluent
Limitations in Storm Water Permits
(hereinafter, ‘‘Interim Permitting
Approach’’) (see Section II.L.1. for
further description) to all MS4s covered
by the NPDES program.
EPA is applying NPDES permit
requirements to construction sites below
5 acres that are similar to the existing
requirements for those above 5 acres
and above. In addition, today’s rule
allows compliance with qualifying
local, Tribal, or State erosion and
sediment controls to meet the erosion
and sediment control requirements of
the general permits for storm water
discharges associated with construction,
both above and below 5 acres.
4. General Permits
EPA recommends using general
permits for all newly regulated storm
water sources under today’s rule. The
use of general permits, instead of
individual permits, reduces the
administrative burden on permitting
authorities, while also limiting the
paperwork burden on regulated parties
seeking permit authorization. Permitting
authorities may, of course, require
individual permits in some cases to
address specific concerns, including
permit non-compliance.
EPA recommends that general permits
for MS4s, in particular, be issued on a
watershed basis, but recognizes that
each permitting authority must decide
how to develop its general permit(s).
Permit conditions developed to address
concerns and conditions of a specific
watershed could reflect a watershed
plan; such permit conditions must
provide for attainment of applicable
water quality standards (including
designated uses), allocations of
pollutant loads established by a TMDL,
and timing requirements for
implementation of a TMDL. If the
permitting authority issues a State-wide
general permit, the permitting authority
may include separate conditions
tailored to individual watersheds or
urbanized areas. Of course, for a newly
regulated MS4, modification of an
existing individual MS4 permit to
include the newly regulated MS4 as a
‘‘limited co-permittee’’ also remains an
option.
5. Tool Box
During the FACA process, many
Storm Water Phase II FACA
Subcommittee representatives expressed
an interest, which was endorsed by the
full Committee, in having EPA develop
a ‘‘tool box’’ to assist States, Tribes,
municipalities, and other parties
involved in the Phase II program. EPA
made a commitment to work with Storm
Water Phase II FACA Subcommittee
representatives in developing such a
tool box, with the expectation that a tool
box would facilitate implementation of
the storm water program in an effective
and cost-efficient manner. EPA has
developed a preliminary working tool
box (available on EPA’s web page at
www.epa.gov/owm/sw/toolbox). EPA
intends to have the tool box fully
developed by the time of the first
general permits. EPA also intends to
update the tool box as resources and
data become available. The tool box will
include the following eight main
components: fact sheets; guidances; a
menu of BMPs for the six MS4
minimum measures; an information
clearinghouse; training and outreach
efforts; technical research; support for
demonstration projects; and compliance
monitoring/assistance tools. EPA
intends to issue the menu of BMPs, both
structural and non-structural, by
October 2000. In addition, EPA will
issue by October 2000 a ‘‘model’’ permit
and will issue by October 2001 guidance
materials on the development of
measurable goals for municipal
programs.
In an attempt to avoid duplication,
the Agency has undertaken an effort to
identify and coordinate sources of
information that relate to the storm
water discharge control program from
both inside and outside the Agency.
Such information includes research and
demonstration projects, grants, storm
water management-related programs,
and compendiums of available
documents, including guidances, related
68737
directly or indirectly to the
comprehensive NPDES storm water
program. Based on this effort, EPA is
developing a tool box containing fact
sheets and guidance documents
pertaining to the overall program and
rule requirements (e.g., guidance on
municipal and construction programs,
and permitting authority guidance on
designation and waiver criteria); models
of current programs aimed at assisting
States, Tribes, municipalities, and
others in establishing programs; a
comprehensive list of reference
documents organized according to
subject area (e.g., illicit discharges,
watersheds, water quality standards
attainment, funding sources, and similar
types of references); educational
materials; technical research data; and
demonstration project results. The
information collected by EPA will not
only provide the background for tool
box materials, but will also be made
available through an information
clearinghouse on the world wide web.
With assistance from EPA, the
American Public Works Association
(APWA) developed a workbook and
series of workshops on the proposed
Phase II rule. Ten workshops were held
from September 1998 through May
1999. Depending on available funding,
these workshops may continue after
publication of today’s final rule. EPA
also intends to provide training to
enable regional offices to educate States,
Tribes, and municipalities about the
storm water program and the
availability of the tool box materials.
The CWA currently provides funding
mechanisms to support activities related
to storm water. These mechanisms will
be described in the tool box. Activities
funded under grant and loan programs,
which could be used to assist in storm
water program development, include
programs in the nonpoint source area,
storm water demonstration projects,
source water protection and wastewater
construction projects. EPA has already
provided funding for numerous research
efforts in these areas, including a
database of BMP effectiveness studies
(described below), an assessment of
technologies for storm water
management, a study of the
effectiveness of storm water BMPs for
controlling the impacts of watershed
imperviousness, protocols for wet
weather monitoring, development of a
dynamic model for wet weather flows,
and numerous outreach projects.
EPA has entered into a cooperative
agreement with the Urban Water
Resources Research Council of the
American Society of Civil Engineers
(ASCE) to develop a scientifically-based
management tool for the information
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68738 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
needed to evaluate the effectiveness of
urban storm water runoff BMPs
nationwide. The long-term goal of the
National Stormwater BMP Database
project is to promote technical design
improvements for BMPs and to better
match their selection and design to the
local storm water problems being
addressed. The project team has
collected and evaluated hundreds of
existing published BMP performance
studies and created a database covering
about 75 test sites. The database
includes detailed information on the
design of each BMP and its watershed
characteristics, as well as its
performance. Eventually the database
will include the nationwide collection
of information on the characteristics of
structural and non-structural BMPs,
data collection efforts (e.g., sampling
and flow gaging equipment),
climatological characteristics, watershed
characteristics, hydrologic data, and
constituent data. The database will
continue to grow as new BMP data
become available. The initial release of
the database, which includes data entry
and retrieval software, is available on
CD–ROM and operates on Windows ® -
compatible personal computers. The
ASCE project team envisions that
periodic updates to the database will be
distributed through the Internet. The
team is currently developing a system
for Internet retrieval of selected database
records, and this system is expected to
be available in early 2000.
EPA and ASCE invite BMP designers,
owners and operators to participate in
the continuing database development
effort. To make this effort successful, a
large database is essential. Interested
persons are encouraged to submit their
BMP performance evaluation data and
associated BMP watershed
characteristics for potential entry into
the database. The software included in
the CD-ROM allows data providers to
enter their BMP data locally, retain and
edit the data as needed, and submit
them to the ASCE Database
Clearinghouse when ready.
EXHIBIT 2–STORM WATER PHASE II ACTIONS DEADLINES
Activity Deadline date
To obtain a copy of the database,
please contact Jane Clary, Database
Clearinghouse Manager, Wright Water
Engineers, Inc., 2490 W. 26th Ave.,
Suite 100A, Denver, CO 80211; Phone
303–480–1700; E-mail
clary@wrightwater.com.
In addition, EPA requests that
researchers planning to conduct BMP
performance evaluations compile and
collect BMP reporting information
according to the standard format
developed by ASCE. The format is
provided with the database software and
is also available on the ASCE website at
www.asce.org/peta/tech/nsbd01.html.
6. Deadlines Established in Today’s
Action
Exhibit 2 outlines the various
deadlines established under today’s
final rule. EPA believes that the dates
allow sufficient time for completion of
both the NPDES permitting authority’s
and the permittee’s program
responsibilities.
NPDES-authorized States modify NPDES program if no statutory
change is required.
1 year from date of publication of today’s rule in the Federal Register.
NPDES-authorized States modify NPDES program if statutory change 2 years from date of publication of today’s rule in the Federal Reg-
is required.
ister.
EPA issues a menu of BMPs for regulated small MS4s ......................... October 27, 2000
ISTEA sources submit permit application ................................................ 3 years and 90 days from date of publication of today’s rule in the Federal
Register.
Permitting authority issues general permit(s) (if this type of permit cov- 3 years from date of publication of today’s rule in the Federal Regerage
is selected).
Regulated small MS4s submit permit application:
ister.
a. If designated under § 122.32(a)(1) unless the permitting author- a. 3 years and 90 days from date of publication of today’s rule in the
ity has established a phasing schedule under § 123.35(d)(3). Federal Register.
b. If designated under § 122.32(a)(2) or §§ 122.26(a)(9)(i) (C) or
(D).
Storm water discharges associated with small construction activity submit
permit application:
b. Within 180 days of notice.
a. If designated under § 122.26(b)(15)(i) .......................................... a. 3 years and 90 days from date of publication of today’s rule in the
Federal Register
b. If designated under § 122.26(b)(15)(ii) .......................................... b. Within 180 days of notice.
Permitting authority designates small MS4s under § 123.35(b)(2) .......... 3 years from date of publication of today’s rule in the Federal Register
or 5 years from date of publication of today’s rule in the Federal
Register if a watershed plan is in place
Regulated small MS4s’ program fully developed and implemented ........ Up to 5 years from date of permit issuance.
Reevaluation of the municipal storm water rules by EPA ....................... 13 years from date of publication of today’s rule in the Federal Register
Permitting authority determination on a petition ...................................... Within 180 days of receipt.
Non-municipal sources designated under § 122.26(a)(9)(i) (C) or (D)
submit permit application.
Within 180 days of notice.
Submission of No Exposure Certification ................................................. Every 5 years.
B. Readable Regulations
Today, EPA is finalizing new
regulations in a ‘‘readable regulation’’
format. This reader-friendly, plain
language approach is a departure from
traditional regulatory language and
should enhance the rule’s readability.
These plain language regulations use
questions and answers, ‘‘you’’ to
identify the person who must comply,
and terms like ‘‘must’’ rather than
‘‘shall’’ to identify a mandate. This new
format, which minimizes layers of
subparagraphs, should also allow the
reader to easily locate specific
provisions of the regulation.
Some sections of today’s final rule are
presented in the traditional language
and format because these sections
amend existing regulations. The
readable regulation format was not used
in these existing provisions in an
attempt to avoid confusion or disruption
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
of the readability of the existing
regulations.
Most commenters supported EPA’s
use of plain language and agreed with
EPA that the question and answer
format makes the rule easier to
understand. Three commenters thought
that EPA should retain the traditional
rule format. The June 1, 1998,
Presidential memorandum directs all
government agencies to write
documents in plain language. Based on
the majority of the comments, EPA has
retained the plain language format used
in the January 9, 1998, proposal in
today’s final rule.
The proposal to today’s final rule
included guidance as well as legal
requirements. The word ‘‘must’’
indicates a requirement. Words like
‘‘should,’’ ‘‘could,’’ or ‘‘encourage’’
indicate a recommendation or guidance.
In addition, the guidance was set off in
parentheses to distinguish it from
requirements.
EPA received numerous comments
supporting the inclusion of guidance in
the text of the Code of Federal
Regulations (CFR), as well as comments
opposing inclusion of guidance.
Supporters stated that preambles and
guidance documents are often not
accessible when rules are implemented.
Any language not included in the CFR
is therefore not available when it may be
most needed. Commenters that opposed
including guidance in the CFR
expressed the concern that any language
in the rule might be interpreted as a
requirement, in spite of any clarifying
language. They suggested that guidance
be presented in the preamble and
additional guidance documents.
The majority of commenters on this
issue thought that the guidance should
be retained but the distinction between
requirements and guidance should be
better clarified. Suggestions included
clarifying text, symbols, and a change
from use of the word ‘‘should’’ to ‘‘EPA
recommends’’ or ‘‘EPA suggests’’. EPA
believes that it is important to include
the guidance in the rule and agrees that
the distinction between requirements
and EPA recommendations must be very
clear. In today’s final rule, EPA has put
the guidance in paragraphs entitled
‘‘Guidance’’ and replaced the word
‘‘should’’ with ‘‘EPA recommends.’’
This is intended to clarify that the
recommendations contained in the
guidance paragraphs are not legally
binding.
C. Program Framework: NPDES
Approach
Today’s rule regulates Phase II
sources using the NPDES permit
program. EPA interprets Clean Water
Act section 402(p)(6) as authorizing the
Agency to develop a storm water
program for Phase II sources either as
part of the existing NPDES permit
program or as a stand alone non-NPDES
program such as a self-implementing
rule. Under either approach, EPA
interprets section 402(p)(6) as directing
EPA to publish regulations that
‘‘regulate’’ the remaining unregulated
sources, specifically to establish
requirements that are federally
enforceable under the CWA. Although
EPA believes that it has the discretion
to not require sources regulated under
CWA section 402(p)(6) to be covered by
NPDES permits, the Agency has
determined, for the reasons discussed
below, that it is most appropriate to use
NPDES permits in implementing the
program to address the sources
designated for regulation in today’s rule.
As discussed in Section II.A,
Overview, EPA sought to achieve
certain goals in today’s final rule. EPA
believes that the NPDES program best
achieves EPA’s goals for today’s final
rule for the reasons discussed below.
Requiring Phase II sources to be
covered by NPDES permits helps
address the consistency problems
currently caused by municipal ‘‘donut
holes.’’ Donut holes are gaps in program
coverage where a small unregulated
MS4 is located next to or within a
regulated larger MS4 that is subject to
an NPDES permit under the Phase I
NPDES storm water program. The
existence of such ‘‘donut holes’’ creates
an equity problem because similar
discharges may remain unregulated
even though they cause or contribute to
the same adverse water quality impacts.
Using NPDES permits to regulate the
unregulated discharges in these areas is
intended to facilitate the development
of a seamless regulatory program for the
mitigation and control of contaminated
storm water discharges in an urbanized
area. For example, today’s rule allows a
newly regulated MS4 to join as a
‘‘limited’’ co-permittee with a regulated
MS4 by referencing a common storm
water management program. Such
cooperation should be further
encouraged by the fact that the
minimum control measures required in
today’s rule for regulated small MS4s
are very similar to a number of the
permit requirements for medium and
large MS4s under the Phase I storm
water program. The minimum control
measures applicable to discharges from
smaller MS4s are described with
slightly more generality than under the
Phase I permit application regulations
for larger MS4s, thus enabling
maximum flexibility for operators of
68739
smaller MS4s to optimize efforts to
protect water quality.
Today’s rule also applies NPDES
permit requirements to construction
sites below 5 acres that are similar to the
existing requirements for those 5 acres
and above. In addition, the rule would
allow compliance with qualifying local,
Tribal, or State erosion and sediment
controls to meet the erosion and
sediment control requirements of the
general permits for storm water
discharges associated with construction,
both above and below 5 acres.
Incorporating the CWA section
402(p)(6) program into the NPDES
program capitalizes upon the existing
governmental infrastructure for
administration of the NPDES program.
Moreover, much of the regulated
community already understands the
NPDES program and the way it works.
Another goal of the NPDES program
approach is to provide flexibility in
order to facilitate and promote
watershed planning and sensitivity to
local conditions. NPDES permits
promote those goals in several ways.
NPDES general permits may be used to
cover a category of regulated sources on
a watershed basis or within political
boundaries. The NPDES permitting
process provides a mechanism for storm
water controls tailored on a case-by-case
basis, where necessary. In addition, the
NPDES permit requirements of a
permittee may be satisfied by another
cooperating entity. Finally, NPDES
permits may incorporate the
requirements of existing State, Tribal
and local programs, thereby
accommodating State and Tribes
seeking to coordinate the storm water
program with other programs, including
those that focus on watershed-based
nonpoint source regulation.
In promoting the watershed approach
to program administration, EPA believes
NPDES general permits can cover a
category of dischargers within a defined
geographic area. Areas can be defined
very broadly to include political
boundaries (e.g., county), watershed
boundaries, or State or Tribal land.
NPDES permits generally require an
application or a notice of intent(NOI) to
trigger coverage. This information
exchange assures communication
between the permitting authority and
the regulated community. This
communication is critical in ensuring
that the regulated community is aware
of the requirements and the permitting
authority is aware of the potential for
adverse impacts to water quality from
identifiable locations. The NPDES
permitting process includes the public
as a valuable stakeholder and ensures
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68740 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
that the public is included and
information is made publicly available.
Another concern for EPA and several
stakeholders was that the program
ensure citizen participation. The NPDES
approach ensures opportunities for
citizen participation throughout the
permit issuance process, as well as in
enforcement actions. NPDES permits are
also federally enforceable under the
CWA.
EPA believes that the use of NPDES
permits makes a significant difference in
the degree of compliance with
regulations in the storm water program.
The NPDES program provides for public
participation in the development,
enforcement and revision of storm water
management programs. Citizen suit
enforcement has assisted in focusing
attention on adverse water quality
impacts on a localized, public priority
basis. Citizens frequently rely on the
NPDES permitting process and the
availability of NOIs to track program
implementation and help them enforce
regulatory requirements.
NPDES permits are also advantageous
to the permittee. The NPDES permit
informs the permittee about the scope of
what it is expected do to be in
compliance with the Clean Water Act.
As explained more fully in EPA’s April
1995 guidance, Policy Statement on
Scope of Discharge Authorization and
Shield Associated with NPDES Permits,
compliance with an NPDES permit
constitutes compliance with the Clean
Water Act (see CWA section 402(k)). In
addition, NPDES permittees are
excluded from duplicative regulatory
regimes under the Resource
Conservation and Recovery Act and the
Comprehensive Emergency Response,
Compensation and Liability Act under
RCRA’s exclusions to the definition of
‘‘solid waste’’ and CERCLA’s exemption
for ‘‘federally permitted releases.’’
EPA considered suggestions that the
Agency authorize today’s rule to be
implemented as a self-implementing
rule. This would be a regulation
promulgated at the Federal, State, or
Tribal level to control some or all of the
storm water dischargers regulated under
today’s rule. Under this approach, a rule
would spell out the specific
requirements for dischargers and
impose the restrictions and conditions
that would otherwise be contained in an
NPDES permit. It would be effective
until modified by EPA, a State, or a
Tribe, unlike an NPDES permit which
cannot exceed a duration of five years.
Some stakeholders believed that this
approach would reduce the burden on
the regulated community (e.g., by not
requiring permit applications), and
considerably reduce the amount of
additional paperwork, staff time and
accounting required to administer the
proposed permit requirements.
EPA is sensitive to the interest of
some stakeholders in having a
streamlined program that minimizes the
burden associated with permit
administration and maximizes
opportunities for field time spent by
regulatory authorities. Key provisions in
today’s rule address some of these
concerns by promoting a streamlined
approach to permit issuance by, for
example, using general permits and
allowing the incorporation of existing
programs. By adopting the NPDES
approach rather than a selfimplementing
rule, today’s rule also
allows for consistent regulation between
larger MS4s and construction sites
regulated under the existing storm water
management rule and smaller sources
regulated under today’s rule.
EPA believes that it is most
appropriate to use NPDES permits to
implement a program to address the
sources regulated by today’s rule. In
addition to the reasons discussed above,
NPDES permits provide a better
mechanism than would a selfimplementing
rule for tailoring storm
water controls on a case-by-case basis,
where necessary. One commenter
reasoned this concern could be
addressed by including provisions in
the regulation that allow site-specific
BMPs (i.e., case-by-case permits),
suggesting storm water discharges that
might require site-specific BMPs can be
identified during the designation
process of the regulatory authority. EPA
believes that, in addition to its
complexity, the commenter’s approach
lacks the other advantages of the NPDES
permitting process.
A self-implementing rule would not
ensure the degree of public participation
that the NPDES permit process provides
for the development, enforcement and
revision of the storm water management
program. A self-implementing rule also
might not have provided the regulated
community the ‘‘permit shield’’ under
CWA section 402(k) that is provided by
an NPDES permit. Based on all these
considerations, EPA declined to adopt a
self-implementing rule approach and
adopted the NPDES approach.
Some State representatives sought
alternative approaches for State
implementation of the storm water
program for Phase II sources. These
State representatives asserted that a
non-NPDES alternative approach best
facilitated watershed management and
avoided duplication and overlapping
regulations. These representatives
believed the NPDES approach would
undercut State programs that had
developed storm water controls tailored
to local watershed concerns. Finally, a
number of commenters expressed the
view that States implement a variety of
programs not based on the CWA that are
effective in controlling storm water, and
that EPA should provide incentives for
their implementation and improvement
in performance.
Throughout the development of the
rule, State representatives sought
alternatives to the NPDES approach for
State implementation of the storm water
program for Phase II sources.
Discussions focused on an approach
whereby States could develop an
alternative program that EPA would
approve or disapprove based on
identified criteria, including that the
alternative non-NPDES program would
result in ‘‘equivalent or better protection
of water quality.’’ The State
representatives, however, were unable
to propose or recommend criteria for
gauging whether a program would
provide equivalent protection. EPA also
did not receive any suggestions for
objective, workable criteria in response
to the Agency’s explicit request for
specific criteria (by which EPA could
objectively judge such programs) in the
preamble to the proposed rule.
EPA evaluated several existing State
initiatives to address storm water and
found many cases where standards
under State programs may be
coordinated with the Federal storm
water program. Where the NPDES
permit is developed in coordination
with State standards, there are
opportunities to avoid duplication and
overlapping requirements. Under
today’s rule, an NPDES permitting
authority may include conditions in the
NPDES permit that direct an MS4 to
follow the requirements imposed under
State standards, rather than the
requirements of § 122.34(b). This is
allowed as long as the State program at
a minimum imposes the relevant
requirements of § 122.34(b). Additional
opportunities follow from other
provisions in today’s rule.
Seeking to further explore the
feasibility of a non-NPDES approach,
the Agency, after the proposal, had
extensive discussions with
representatives of a number of States.
Discussions related specifically to
possible alternatives for regulations of
urban storm water discharges and MS4s
specifically. The Agency also sought
input on these issues from other
stakeholders.
As a result of these discussions, many
of the commenters provided input on
issues such as: whether or not the
Agency should require NPDES permits;
whether location of MS4s in urbanized
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
areas should be the basis for designation
or whether designation should be based
on other determinations relating to
water quality; whether States should be
allowed to satisfy the conditions of the
rule through the use of existing State
programs; and issues concerning timing
and resources for program
implementation.
In response, today’s rule still follows
the regulatory scheme of the proposed
rule, but incorporates additional
flexibility to address some of the
concerns raised by commenters.
In order to facilitate implementation
by States that utilize a watershed
permitting approach or similar approach
(i.e., based on a State’s unified
watershed assessments), today’s rule
allows States to phase in coverage for
MS4s in jurisdictions with a population
less than 10,000. Under such an
approach, States could focus their
resources on a rolling basis to assist
smaller MS4s in developing storm water
programs.
In addition, in response to concerns
that the rule should not require permit
coverage for MS4s that do not
significantly contribute to water quality
impairments, today’s rule provides
options for two waivers for small MS4s.
The rule allows permitting authorities to
exempt from the requirement for a
permit any MS4 serving a jurisdiction
with a population less than 1,000,
unless the State determines that the
MS4 must implement storm water
controls because it is significantly
contributing to a water quality
impairment. A second waiver option
applies to MS4s serving a jurisdiction
with a population less than 10,000. For
those MS4s, the State must determine
that discharges from the MS4 do not
significantly contribute to a water
quality impairment, or have the
potential for such an impairment, in
order to provide the exemption. The
State must review this waiver on a
periodic basis no less frequently than
once every five years.
Throughout the development of
today’s rule, commenters questioned
whether the Clean Water Act authorized
the use of the NPDES permit program,
pointing out that the text of CWA
402(p)(6) does not use the word
‘‘permit.’’ Based on the absence of the
word ‘‘permit’’ and the express mention
of State storm water management
programs, the commenters asserted that
Congress did not intend for Phase II
sources to be regulated using NPDES
permits.
EPA disagrees with the commenters’
interpretation of section 402(p)(6).
Section 402(p)(6) does not preclude use
of permits as part of the
‘‘comprehensive program’’ to regulate
designated sources. The language
provides EPA with broad discretion in
the establishment of the
‘‘comprehensive program.’’ Absence of
the word ‘‘permit’’ (a term that the
statute does not otherwise define) does
not preclude use of a permit, which is
a familiar and reasonably well
understood regulatory implementation
vehicle. First, section 402(p)(6) says that
EPA must establish a comprehensive
program that ‘‘shall, at a minimum,
establish priorities, establish
requirements for State stormwater
management programs, and establish
expeditious deadlines.’’ The ‘‘at a
minimum’’ language suggests that the
Agency may, and perhaps should,
develop a comprehensive program that
does more than merely attend to these
minimum criteria. Use of the term ‘‘at a
minimum’’ preserves for the Agency
broad discretion to establish a
comprehensive program that includes
use of NPDES permits.
Further, in the final sentence of the
section, Congress included additional
language to affirm the Agency’s
discretion. The final sentence clarifies
that the Phase II program ‘‘may include
performance standards, guidelines,
guidance, and management practices
and treatment requirements, as
appropriate.’’ Under existing CWA
programs, performance standards,
(effluent limitations) guidelines,
management practices, and treatment
requirements are typically implemented
through NPDES or dredge and fill
permits.
Although EPA believes that it had the
discretion to not require permits, the
Agency has determined that it is
reasonable to interpret section 402(p)(6)
to authorize permits. Moreover, for the
reasons discussed above, the Agency
believes that it is appropriate to use
NPDES permits in implementing today’s
rule.
D. Federal Role
Today’s final rule describes EPA’s
approach to expand the existing storm
water program under CWA section
402(p)(6). As in all other Federal
programs, the Federal government plays
an integral role in complying with,
developing, implementing, overseeing,
and enforcing the program. This section
describes EPA’s role in the revised
storm water program.
1. Develop Overall Framework of the
Program
The storm water discharge control
program under CWA section 402(p)(6)
consists of the rule, tool box, and
permits. EPA’s primary role is to ensure
68741
timely development and
implementation of all components.
Today’s rule is a refinement of the first
step in developing the program. EPA is
fully committed to continuing to work
with involved stakeholders on
developing the tool box and issuing
permits. As noted in today’s rule, EPA
will assess the municipal storm water
program based on (1) evaluations of data
from the NPDES municipal storm water
program, (2) research concerning water
quality impacts on receiving waters
from storm water, and (3) research on
BMP effectiveness. (Section II.H,
Municipal Role, provides a more
detailed discussion of this provision.)
EPA is planning to standardize
minimum requirements for construction
and post-construction BMPs in a new
rulemaking under Title III of the CWA.
While larger construction sites are
already subject to NPDES permits (and
smaller sites will be subject to permits
pursuant to today’s rule), the permits
generally do not contain specific
requirements for BMP design or
performance. The permits require the
preparation of storm water pollution
prevention plans, but actual BMP
selection and design is at the discretion
of permittees, in conformance with
applicable State and local requirements.
Where there are existing State and local
requirements specific to BMPs, they
vary widely, and many jurisdictions do
not have such requirements.
In developing these regulations, EPA
intends to evaluate the inclusion of
design and maintenance criteria as
minimum requirements for a variety of
BMPs used for erosion and sediment
control at construction sites, as well as
for permanent BMPs used to manage
post-construction storm water
discharges. The Agency plans to
consider the merits and performance of
all appropriate management practices
(both structural and non-structural) that
can be used to reduce adverse water
quality impacts. EPA does not intend to
require the use of particular BMPs at
specific sites, but plans to assist
builders and developers in BMP
selection by publishing data on the
performance to be expected by various
BMP types. EPA would like to build
upon the successes of some of the
effective State and local storm water
programs currently in place around the
country, and to establish nation-wide
criteria to support builders and local
jurisdictions in appropriate BMP
selection.
2. Encourage Consideration of Smart
Growth Approaches
In the proposal, EPA invited comment
on possible approaches for providing
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68742 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
incentives for local decision making that
would limit the adverse impacts of
growth and development on water
quality. EPA asked for comments on this
‘‘smart growth’’ approach.
EPA received comments on all sides
of this issue. A number of commenters
supported the idea of ‘‘smart growth’’
incentives but did not present concrete
ideas. Several commenters suggested
‘‘smart growth’’ criteria. States that have
adopted ‘‘smart growth’’ laws were
worried that EPA’s focus on urbanized
areas for municipal requirements could
encourage development outside of
designated growth areas. Today’s final
rule clearly allows States to expand
coverage of their municipal storm water
program outside of urbanized areas. In
addition, the flexibility of the six
municipal minimum measures should
avoid encouragement of development
into rural rather than urban areas. For
example, as part of the postconstruction
minimum measure, EPA
recommends that municipalities
consider policies and ordinances that
encourage infill development in higher
density urban areas, and areas with
existing infrastructure, in order to meet
the measure’s intent.
EPA also received several comments
expressing concern that incorporating
‘‘smart growth’’ incentives threatened
the autonomy of local governments. One
commenter was worried that
‘‘incentives’’ could become more
onerous than the minimum measures.
EPA is very aware of municipal
concerns about possible federal
interference with local land use
planning. EPA is also cognizant of the
difficulty surrounding incentives for
‘‘smart growth’’ activities due to these
concerns. However, the Agency believes
it has addressed these concerns by
proposing a flexible approach and will
continue to support the concept of
‘‘smart growth’’ by encouraging policies
that limit the adverse impacts of growth
and development on water quality.
3. Provide Financial Assistance
Although Congress has not
established a fund to fully finance
implementation of the proposed
extension of the existing NPDES storm
water program under CWA section
402(p)(6), numerous federal financing
programs (administered by EPA and
other federal agencies) can provide
some financial assistance. The primary
funding mechanism is the Clean Water
State Revolving Fund (SRF) program,
which provides sources of low-cost
financing for a range of water quality
infrastructure projects, including storm
water. In addition to the SRF, federal
financial assistance programs include
the Water Quality Cooperative
Agreements under CWA section
104(b)(3), Water Pollution Control
Program grants to States under CWA
section 106, and the Transportation
Equity Act for the 21st Century (TEA–
21) among others. In addition, Section
319 funds may be used to fund any
urban storm water activities that are not
specifically required by a draft or final
NPDES permit. EPA will develop a list
of potential funding sources as part of
the tool box implementation effort. EPA
anticipates that some of these programs
will provide funds to help develop and,
in limited circumstances, implement the
CWA section 402(p)(6) storm water
discharge control program.
EPA received numerous comments
that requested additional funding.
Congress provided one substantial new
source of potential funding for
transportation related storm water
projects—TEA–21. The Department of
Transportation has included a number
of water-related provisions in its TEA–
21 planning. These include
Transportation Enhancements,
Environmental Restoration and
Pollution Abatement, and
Environmental Streamlining. More
information on TEA–21 is available at
the following internet sites:
www.fhwa.dot.gov/tea21/outreach.htm
and www.tea21.org.
4. Implement the Program in
Jurisdictions Not Authorized To
Administer the NPDES Program
Because today’s final rule uses the
NPDES framework, EPA will be the
NPDES permitting authority in several
States, Tribal jurisdictions, and
Territories. As such, EPA will have the
same responsibilities as any other
NPDES permitting authority—issuing
permits, designating additional sources,
and taking appropriate enforcement
actions—and will seek to tailor the
storm water discharge control program
to the specific needs in that State, Tribal
jurisdiction, or Territory. EPA also plans
to provide support and oversight,
including outreach, training, and
technical assistance to the regulated
communities. Section II.G. of today’s
preamble provides a separate discussion
related to the NPDES permitting
authority’s responsibilities for today’s
final rule.
5. Oversee State and Tribal Programs
Under the NPDES program, EPA plays
an oversight role for NPDES-approved
States and Tribes. In this role, EPA and
the State or Tribe work together to
implement, enforce, and improve the
NPDES program. Part of this oversight
role includes working with States and
Tribes to modify their programs where
programmatic or implementation
concerns impede program effectiveness.
This role will be vitally important when
States and Tribes make adjustments to
develop, implement, and enforce
today’s extension of the existing NPDES
storm water discharge control program.
In addition, States maintain a
continuing planning process (CPP)
under CWA section 303(e), which EPA
periodically reviews to assess the
program’s achievements.
In its oversight role, EPA takes action
to address States and Tribes who have
obtained NPDES authorization but are
not fulfilling their obligations under the
NPDES program. If an NPDESauthorized
State or Tribe fails to
implement an adequate NPDES storm
water program, for example, EPA
typically enters into extensive
discussions to resolve outstanding
issues. EPA has the authority to
withdraw the entire NPDES program
when resolution cannot be reached.
Partial program withdrawal is not
provided for under the CWA except for
partial approvals.
EPA is also working with the States
and Tribes to improve nonpoint source
management programs and assessments
to incorporate key program elements.
Key nonpoint source program elements
include setting short and long term
goals and objectives; establishing public
and private partnerships; using a
balanced approach incorporating
Statewide and watershed-wide
abatement of existing impairments;
preventing future impairments;
developing processes to address both
impaired and threatened waters;
reviewing and upgrading all program
components, including program
revisions on a 5-year cycle; addressing
federal land management and activities
inconsistent with State programs; and
managing State nonpoint source
management programs effectively.
In particular, EPA works with the
States and Tribes to strengthen their
nonpoint source pollution programs to
address all significant nonpoint sources,
including agricultural sources, through
the CWA section 319 program. EPA is
working with other government
agencies, as well as with community
groups, to effect voluntary changes
regarding watershed protection and
reduced nonpoint source pollution.
In addition, EPA and NOAA have
published programmatic and technical
guidance to address coastal nonpoint
source pollution. Under Section 6217 of
the CZARA, States are developing and
implementing coastal nonpoint
pollution control programs approved by
EPA and NOAA.
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
6. Comply With Applicable
Requirements as a Discharger
Today’s final rule covers federally
operated facilities in a variety of ways.
These facilities are generally areas
where people reside, such as a federal
prison, hospital, or military base. It also
includes federal parkways and road
systems with separate storm sewer
systems. Today’s rule requires federal
MS4s to comply with the same
application deadlines that apply to
regulated small MS4s generally. EPA
believes that all federal MS4s serve
populations of less than 100,000.
EPA received several comments that
asked if individual buildings like post
offices are considered to be small MS4s
and thereby regulated in today’s rule if
they are in an urbanized area. Most of
these buildings have at most a parking
lot with runoff or a storm sewer that
connects with a municipality’s MS4.
EPA does not intend that individual
federal buildings be considered to be
small MS4s. This is discussed in section
II.H.2.b. of today’s preamble.
Federal facilities can also be included
under requirements addressing storm
water discharges associated with small
construction activities. In any case,
discharges from these facilities will
need to comply with all applicable
NPDES requirements and any additional
water quality-related requirements
imposed by a State, Tribal, or local
government. Failure to comply can
result in enforcement actions. Federal
facilities can act as models for
municipal and private sector facilities
and implement or test state-of-the-art
management practices and control
measures.
E. State Role
Today’s final rule sets forth an NPDES
approach for implementing the
extension of the existing storm water
discharge control program under CWA
section 402(p)(6). State assumption of
the NPDES program is voluntary,
consistent with the principles of
federalism. Because most States are
approved to implement the NPDES
program, they will tailor their storm
water discharge control programs to
address their water quality needs and
objectives. While today’s rule
establishes the basic framework for the
section 402(p)(6) program, States as well
as Tribes (see discussion in section II.F)
have an important role in fine-tuning
the program to address the water quality
issues within their jurisdictions. The
basic framework allows for adjustments
based on factors that vary
geographically, including climate
patterns and terrain.
Where States do not have NPDES
authority, they are not required to
implement the storm water discharge
control program, but they may still
participate in water quality protection
through participation in the CWA
section 401 certification process (for any
permits) and through development of
water quality standards and TMDLs.
1. Develop the Program
In expanding the existing NPDES
program for storm water discharges,
States must evaluate whether revisions
to their NPDES programs are necessary.
If so, modifications must be made in
accordance with § 123.62. Under
§ 123.62, States must revise their NPDES
programs within 1 year, or within 2
years if statutory changes are necessary.
Some States and departments of
transportation (DOTs) commented that
this timeframe is too short, anticipating
that the State legislative process and the
modification of regulations combined
would take beyond 2 years. The
deadline language in § 123.62 is not new
language for the storm water discharge
control program; it applies to all NPDES
programs. EPA believes the vast
majority of States will meet the deadline
and will work with States in those cases
where there may be difficulty meeting
this deadline due to the timing of
legislative sessions and the regulatory
development process.
An authorized State NPDES program
must meet the requirements of CWA
section 402(b) and conform to the
guidelines issued under CWA section
304(i)(2). Today’s final rule under
§ 123.25 adds specific cross references
to the storm water discharge control
program components to ensure that
States adequately address these
requirements.
2. Comply With Applicable
Requirements as a Discharger
Today’s final rule covers State
operated separate storm sewer systems
in a variety of ways. These systems
generally drain areas where people
reside, such as a prison, hospital, or
other populated facility. These systems
are included under the definition of a
regulated small MS4, which specifically
identifies systems operated by State
departments of transportation.
Alternatively, storm water discharges
from State activities may be regulated
under the section addressing storm
water discharges associated with small
construction activities. In any case,
discharges from these facilities must
comply with all applicable NPDES
requirements. Failure to comply can
result in enforcement actions. State
facilities can act as models for
68743
municipal and private sector facilities
and implement or test state-of-the-art
management practices and control
measures.
3. Communicate With EPA
Under approved NPDES programs,
States have an ongoing obligation to
share information with EPA. This
dialogue is particularly important in the
CWA section 402(p)(6) storm water
program where these governments
continue to develop a great deal of the
guidance and outreach related to water
quality.
F. Tribal Role
The proposal to today’s final rule
provides background information on
EPA’s 1984 Indian Policy and the
criteria for treatment of an Indian Tribe
in the same manner as a State. Today’s
final rule extends the existing NPDES
program for storm water discharges to
two types of dischargers located in
Indian country. First, the final rule
designates storm water discharges from
any regulated small MS4, including
Tribal systems. Second, the final rule
regulates discharges associated with
construction activity disturbing between
one and five acres of land, including
sites located in Indian country.
Operators in each of these categories of
regulated activity must apply for
coverage under an NPDES permit by 3
years and 90 days from the date of
publication of today’s final rule. Under
existing regulations, however, EPA or an
authorized NPDES Tribe may require a
specified storm water discharger to
apply for NPDES permit coverage before
this deadline based on a determination
that the discharge is contributing to a
violation of a water quality standard
(including designated uses) or is a
significant contributor of pollutants.
Under today’s rule, a Tribal
governmental entity may regulate storm
water discharges on its reservation in
two ways—as either an NPDESauthorized
Tribe or as a regulated MS4.
If a Tribe is authorized to operate the
NPDES program, the Tribe must
implement today’s final rule for the
NPDES program for storm water for
covered dischargers located within the
EPA recognized boundaries. Otherwise,
EPA is generally the permitting/program
authority within Indian country.
Discussions about the State Role in the
preceding section also apply to NPDES
authorized Tribes. For additional
information on the role and
responsibilities of the permitting
authority in the NPDES storm water
program, see § 123.35 (and Section II.G.
of today’s preamble) and § 123.25(a).
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68744 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
Under today’s final rule, if the Indian
reservation is located entirely or
partially within an ‘‘urbanized area,’’ as
defined in § 122.32(a)(1), the Tribe must
obtain an NPDES permit if it operates a
small MS4 within the urbanized area
portion. Tribal MS4s located outside an
urbanized area are not automatically
covered, but may be designated by EPA
pursuant to § 122.32(a)(2) of today’s rule
or may request designation as a
regulated small MS4 from EPA. A Tribe
that is a regulated MS4 for NPDES
program purposes is required to
implement the six minimum control
measures to the extent allowable under
Federal law.
The Tribal representative on the
Storm Water Phase II FACA
Subcommittee asked EPA to provide a
list of the Tribes located in urbanized
areas that would fall within the NPDES
storm water program under today’s final
rule. In December 1996, EPA developed
a list of federally recognized American
Indian Areas located wholly or partially
in Bureau of the Census-designated
urbanized areas (see Appendix 1).
Appendix 1 not only provides a listing
of reservations and individual Tribes,
but also the name of the particular
urbanized area in which the reservation
is located and an indication of whether
the urbanized area contains a medium
or large MS4 that is already covered by
the existing Phase I regulations.
Some of the Tribes listed in Appendix
1 are only partially located in an
urbanized area. If the Tribe’s MS4 serves
less than 1,000 people within an
urbanized area, the permitting authority
may waive the Tribe’s MS4 storm water
requirements if it meets the conditions
of § 122.32(c). EPA does not have
information on the Tribal populations
within the urbanized areas, so it can not
identify the Tribes that are eligible for
a waiver. Therefore, a Tribe that
believes it qualifies for a waiver should
contact its permitting authority.
G. NPDES Permitting Authority’s Role
for the NPDES Storm Water Small MS4
Program
As noted previously, the NPDES
permitting authority can be EPA or an
authorized State or an authorized Tribe.
The following discussion describes the
role of the NPDES permitting authority
under today’s final rule.
1. Comply With Implementation
Requirements
NPDES permitting authorities must
perform certain duties to implement the
NPDES storm water municipal program.
Section 123.35(a) of today’s final rule
emphasizes that permitting authorities
have existing obligations under the
NPDES program. Section 123.35 focuses
on specific issues related to the role of
the NPDES authority to support
administration and implementation of
the municipal storm water program
under CWA section 402(p)(6).
2. Designate Sources
Section 123.35(b) of today’s final rule
addresses the requirements for the
NPDES permitting authority to
designate sources of storm water
discharges to be regulated under
§§ 122.32 through 122.36. NPDES
permitting authorities must develop a
process, as well as criteria, to designate
small MS4s. They must also have the
authority to designate a small MS4 if
and when circumstances that support a
waiver under § 122.32(c) change. EPA
may make designations if an NPDESapproved
State or Tribe fails to do so.
NPDES permitting authorities must
examine geographic jurisdictions that
they believe should be included in the
storm water discharge control program
but are not located in an ‘‘urbanized
area’’. Small MS4s in these areas are not
designated automatically. Discharges
from such areas should be brought into
the program if found to have actual or
potential exceedances of water quality
standards, including impairment of
designated uses, or other adverse
impacts on water quality, as determined
by local conditions or watershed and
TMDL assessments. EPA’s aim is to
address discharges to impaired waters
and to protect waters with the potential
for problems. EPA encourages NPDES
permitting authorities, local
governments, and the interested public
to work together in the context of a
watershed plan to address water quality
issues, including those associated with
municipal storm water runoff.
EPA received comments stating that
the process of developing criteria and
applying it to all MS4s outside an
urbanized area serving a population of
10,000 or greater and with a density of
1,000 people per square mile is too
time-consuming and resource-intensive.
These commenters believe that the
permitting authority should decide
which MS4s must be brought into the
storm water discharge control program
and that population and density should
not be an overriding criteria. One
suggested way of doing so was to only
designate MS4s with demonstrated
contributions to the impairment of
water quality uses as shown by a TMDL.
EPA disagrees with this suggestion. The
TMDL process is time-consuming. MS4s
outside of urbanized areas may cause
water quality problems long before a
TMDL is completed.
EPA believes that permitting
authorities should consider the
potential water quality impacts of storm
water from all jurisdictions with a
population of 10,000 or greater and a
density of 1,000 people per square mile.
EPA is using data summarized in the
NURP study and in the CWA section
305(b) reports to support this approach
for targeted designation outside of
urbanized areas. EPA is not mandating
which criteria are to be used, but has
provided examples of criteria that may
be useful in evaluating potential water
quality impacts. EPA believes that the
flexibility provided in this section of
today’s final rule allows the permitting
authority to develop criteria and a
designation process that is easy to use
and protects water quality. Therefore,
the provisions of § 123.35(b) remain as
proposed.
a. Develop Designation Criteria
Under § 123.35(b), the NPDES
permitting authority must establish
designation criteria to evaluate whether
a storm water discharge results in or has
the potential to result in exceedances of
water quality standards, including
impairment of designated uses, or other
significant water quality impacts,
including adverse habitat and biological
impacts.
EPA recommends that NPDES
permitting authorities consider, in a
balanced manner, certain locallyfocused
criteria for designating any MS4
located outside of an urbanized area on
the basis of significant water quality
impacts. EPA recommends
consideration of criteria such as
discharge to sensitive waters, high
growth or growth potential, high
population density, contiguity to an
urbanized area, significant contribution
of pollutants to waters of the United
States, and ineffective control of water
quality concerns by other programs.
These suggested designation criteria are
intended to help encourage the
permitting authority to use an objective
method for identifying and designating,
on a local basis, sources that adversely
impact water quality. More information
about these criteria and the reasons why
they are suggested by EPA is included
in the January 9, 1998, proposal (63 FR
1561) for today’s final rule.
The suggested criteria are meant to be
taken in the aggregate, with a great deal
of flexibility as to how each should be
weighed in order to best account for
watershed and other local conditions
and to allow for a more tailored case-bycase
analysis. The application of criteria
is meant to be geographically specific.
Furthermore, each criterion does not
have to be met in order for a small MS4
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
to qualify for designation, nor should an
MS4 necessarily be designated on the
basis of one or two criteria alone.
EPA believes that the application of
the recommended designation criteria
provides an objective indicator of real
and potential water quality impacts
from urban runoff on both the local and
watershed levels. EPA encourages the
application of the recommended criteria
in a watershed context, thereby allowing
for the evaluation of the water quality
impacts of the portions of a watershed
outside of an urbanized area. For
example, situations exist where the
urbanized area represents a small
portion of a degraded watershed, and
the adjacent nonurbanized areas of the
watershed have significant cumulative
effects on the quality of the receiving
waters.
EPA received numerous suggestions
of additional criteria that should be
added and reasons why some of the
criteria in the proposal to today’s final
rule were not appropriate. EPA
developed its suggested designation
criteria based on findings of the NURP
study and other studies that indicate
pollutants of concern, including total
suspended solids, chemical oxygen
demand, and temperature. These criteria
were the subject of considerable
discussion by the Storm Water Phase II
FACA Subcommittee. EPA developed
them in response to recommendations
from the subcommittee during
development of the proposed rule. The
listed criteria are only suggestions.
Permitting authorities are required to
develop their own criteria. EPA has not
found any reason to change its
suggested list of criteria and the
suggestions remain as proposed.
b. Apply Designation Criteria
After customizing the designation
criteria for local conditions, the
permitting authority must apply such
criteria, at a minimum, to any MS4
located outside of an urbanized area
serving a jurisdiction with a population
of at least 10,000 and a population
density of 1,000 people per square mile
or greater (see § 123.35(b)(2)). If the
NPDES permitting authority determines
that an MS4 meets the criteria, the
permitting authority must designate it as
a regulated small MS4. This designation
must occur within 3 years of publication
of today’s final rule. Alternatively, the
NPDES authority can designate within 5
years from the date of final regulation if
the designation criteria are applied on a
watershed basis where a comprehensive
watershed plan exists (a comprehensive
watershed plan is one that includes the
equivalents of TMDLs) (see
§ 123.35(b)(3)). The extended 5 year
deadline is intended to provide
incentives for watershed-based
designations. If an NPDES-authorized
State or Tribe does not develop and
apply designation criteria within this
timeframe, then EPA has the
opportunity to do so in lieu of the
authorized State or Tribe.
NPDES permitting authorities can
designate any small MS4, including one
below 10,000 in population and 1,000 in
density. EPA established the 10,000/
1,000 threshold based on the likelihood
of adverse water quality impacts at these
population and density levels. In
addition, the 1,000 persons per square
mile threshold is consistent with both
the Bureau of the Census definition of
an ‘‘urbanized area’’ (see Section II.H.2.
below) and stakeholder discussions
concerning the definition of a regulated
small MS4.
One commenter requested that EPA
develop interim deadlines for
development of designation criteria.
EPA believes that the designation
deadline identified in today’s final rule
at § 123.35(b)(3) provides States and
Tribes with a flexibility that allows
them to develop and apply the criteria
locally in a timely fashion, while at the
same time establishing an expeditious
deadline.
c. Designate Physically Interconnected
Small MS4s
In addition to applying criteria on a
local basis for potential designation, the
NPDES permitting authority must
designate any MS4 that contributes
substantially to the pollutant loadings of
a physically interconnected municipal
separate storm sewer that is regulated by
the NPDES program for storm water
discharges (see § 123.35(b)(4)). To be
‘‘physically interconnected,’’ the MS4 of
one entity, including roads with
drainage systems and municipal streets,
is physically connected directly to the
municipal separate storm sewer of
another entity. This provision applies to
all MS4s located outside of an
urbanized area. EPA added this section
in recognition of the concerns of local
government stakeholders that a local
government should not have to shoulder
total responsibility for a storm water
program when storm water discharges
from another MS4 are also contributing
pollutants or adversely affecting water
quality. This provision also helps to
provide some consistency among MS4
programs and to facilitate watershed
planning in the implementation of the
NPDES storm water program. EPA
recommended physical
interconnectedness in the existing
NPDES storm water regulations as a
68745
factor for consideration in the
designation of additional sources.
Today’s final rule does not include
interim deadlines for identifying
physically interconnected MS4s.
However, consistent with the deadlines
identified in § 123.35(b)(3) of today’s
final rule, EPA encourages the
permitting authority to make these
determinations within 3 years from the
date of publication of the final rule or
within 5 years if the permitting
authority is implementing a
comprehensive watershed plan.
Alternatively, the affected jurisdiction
could use the petition process under 40
CFR 122.26(f) in seeking to have the
permitting authority designate the
contributing jurisdiction.
Several commenters expressed
concerns about who could be designated
under this provision (§ 123.35(b)(4)).
One commenter requested that the word
‘‘substantially’’ be deleted from the rule
because they believe any MS4 that
contributes at all to a physically
interconnected municipal separate
storm sewer should be regulated. EPA
believes that the word ‘‘substantially’’
provides necessary flexibility to the
permitting authorities. The permitting
authority can decide if an MS4 is
contributing discharges to another
municipal separate storm sewer in a
manner that requires regulation. If the
operator of a regulated municipal
separate storm sewer believes that some
of its pollutant loadings are coming
from an unregulated MS4, it can
petition the permitting authority to
designate the unregulated MS4 for
regulation.
d. Respond to Public Petitions for
Designation
Today’s final rule reiterates the
existing opportunity for the public to
petition the permitting authority for
designation of a point source to be
regulated to protect water quality. The
petition opportunity also appears in
existing NPDES regulations at 40 CFR
122.26(f). Any person may petition the
permitting authority to require an
NPDES permit for a discharge composed
entirely of storm water that contributes
to a violation of a water quality standard
or is a significant contributor of
pollutants to the waters of the United
States (see § 123.32(b)). The NPDES
permitting authority must make a final
determination on any petition within
180 days after receiving the petition (see
§ 123.35(c)). EPA believes that a 180 day
limit balances the public’s need for a
timely final determination with the
NPDES permitting authority’s need to
prioritize its workload. If an NPDESapproved
State or Tribe fails to act
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68746 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
within the 180-day timeframe, EPA may
make a determination on the petition.
EPA believes that public involvement is
an important component of the NPDES
program for storm water and feels that
this provision encourages public
participation. Section II.K, Public
Involvement/Public Role, further
discusses this topic.
3. Provide Waivers
Today’s rule provides two
opportunities for the NPDES permitting
authority to exempt certain small MS4s
from the need for a permit based on
water quality considerations. See
§§ 122.32(d) and (e). The two waiver
opportunities have different size
thresholds and take different
approaches to considering the water
quality impacts of discharges from the
MS4.
In the proposal, EPA requested
comment on the option of waiving
coverage for all MS4s with less than
1,000 people unless the permitting
authority determined that the small
MS4 should be regulated based on
significant adverse water quality
impacts. A number of commenters
supported this option. They expressed
concern that compliance with the rule
requirements and certification of one of
the waiver provisions were both costly
for very small communities. They stated
that the permitting authority should
identify a water quality problem before
requiring compliance. Today’s rule
essentially adopts this alternative
approach for MS4s serving a population
under 1,000.
The final rule has expanded the
waiver provision that EPA proposed for
small MS4s with a population less than
1,000. The proposed rule would have
required a small MS4 operator to certify
that storm water controls are not needed
based on either wasteload allocations
that are part of TMDLs that address the
pollutants of concern, or a
comprehensive watershed plan
implemented for the waterbody that
includes the equivalents of TMDLs and
addresses the pollutant(s) of concern.
Commenters noted that the proposed
waivers would be unattainable if a
TMDL or equivalent analysis was
required for every pollutant that could
possibly be present in any amount in
discharges from an MS4 regardless of
whether the pollutant is causing water
quality impairment. Commenters asked
that EPA identify what constitutes the
‘‘pollutant(s) of concern’’ for which a
TMDL or its equivalent must be
developed. For example, § 122.30(c)
indicates that the MS4 program is
intended to control ‘‘sediment,
suspended solids, nutrients, heavy
metals, pathogens, toxins, oxygendemanding
substances, and floatables.’’
Commenters asked whether TMDLs or
equivalent analyses have to address all
of these.
EPA has revised the proposed waiver
in response to these concerns. Under
today’s rule, NPDES permitting
authorities may waive the requirements
of today’s rule for any small MS4 with
a population less than 1,000 that does
not contribute substantially to the
pollutant loadings of a physically
interconnected MS4, unless the small
MS4 discharges pollutants that have
been identified as a cause of impairment
of the waters to which the small MS4
discharges. If the small MS4 does
discharge pollutants that have been
identified as impairing the water body
into which the small MS4 discharges,
the NPDES permitting authority may
grant a waiver only if it determines that
storm water controls are not needed
based on an EPA approved or
established TMDL that addresses the
pollutant(s) of concern.
Unlike the proposed rule, § 122.32(d)
does not allow the waiver for MS4s
serving a population under 1,000 to be
based on ‘‘the equivalent of a TMDL.’’
Because § 122.32(d) requires a pollutant
specific analysis only for a pollutant
that has been identified as a cause of
impairment, a TMDL is required for
such pollutant before the waiver may be
granted. Once a pollutant has been
identified as the cause of impairment of
a water body, the State should develop
a TMDL for that pollutant for that water
body. Thus, § 122.32(d) takes a different
approach than that taken for the waiver
in § 122.32(e) for MS4s serving a
population under 10,000, which can be
based upon an analysis that is ‘‘the
equivalent of a TMDL.’’ This is because
§ 122.32(d) requires an analysis to
support the waiver for MS4s under
1,000 only if a waterbody to which the
MS4 discharges has been identified as
impaired. The § 122.32(e) waiver, on the
other hand, would be available for larger
MS4s but only after the State
affirmatively establishes lack of
impairment based upon a
comprehensive analysis of smaller
urban waters that might not otherwise
be evaluated for the purposes of CWA
section 303. Since § 122.32(e) requires
the analysis of waters that have not been
identified as impaired, an actual TMDL
is not required and an analysis that is
the equivalent of a TMDL can suffice to
support the waiver.
Where a State is the NPDES
permitting authority, the permitting
authority is responsible for the
development of the TMDLs as well as
the assessment of the extent to which a
small MS4’s discharge contributes
pollutants to a neighboring regulated
system. In States where EPA is the
permitting authority, EPA will use a
State’s TMDLs to determine whether
storm water controls are required for the
small MS4s.
The proposed rule would have
required the operator of the small MS4
serving a population under 1,000 to
certify that its discharge was covered
under a TMDL that indicated that
discharges from its particular system
were not having an adverse impact on
water quality (i.e., it was either not
assigned wasteload allocations under
TMDLs or its discharge is within an
assigned allocation). Many commenters
expressed concerns that MS4 operators
serving less than 1,000 persons may lack
the technical capacity to certify that
their discharges are not contributing to
adverse water quality impacts. These
commenters thought that the permitting
authority should make such a
certification. Today’s rule provides
flexibility as to how the waiver is
administered. Permitting authorities are
ultimately responsible for granting the
waiver, but are free to determine
whether or not to require small MS4
operators that are seeking waivers to
submit information or a written
certification.
Under § 122.32(e) a State may grant a
waiver to an MS4 serving a population
between 1,000 and 10,000 only if the
State has made a comprehensive effort
to ensure that the MS4 will not cause or
contribute to water quality impairment.
To grant a § 122.32(e) waiver, the
NPDES permitting authority must
evaluate all waters of the U.S. that
receive a discharge from the MS4 and
determine that storm water controls are
not needed. The permitting authority’s
evaluation must be based on wasteload
allocations that are part of an EPA
approved or established TMDL or, if a
TMDL has not been developed or
approved, an equivalent analysis that
determines sources and allocations for
the pollutant(s) of concern. The
pollutants of concern that the permitting
authority must evaluate include
biochemical oxygen demand (BOD),
sediment or a parameter that addresses
sediment (such as total suspended
solids, turbidity or siltation), pathogens,
oil and grease, and any other pollutant
that has been identified as a cause of
impairment of any water body that will
receive a discharge from the MS4.
Finally, the permitting authority must
have determined that future discharges
from the MS4 do not have the potential
to result in exceedances of water quality
standards, including impairment of
designated uses, or other significant
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water quality impacts, including habitat
and biological impacts.
Although EPA did not propose this
specific approach, the Agency did
request comment on whether to increase
the proposed 1,000 population
threshold for a waiver. The § 122.32(e)
waiver was developed in response to
comments, including States’ concerns
that they needed greater flexibility to
focus their efforts on MS4s that were
causing water quality impairment.
Several commenters thought that the
threshold should be increased from
1,000 to 5,000 or 10,000. Others
suggested additional ways of qualifying
for a waiver for MS4s that discharge to
waters that are not covered by a TMDL
or watershed plan. EPA carefully
considered all the options for expanding
the waiver provisions and has decided
to expand the waiver only in the very
narrow circumstances described above
where a comprehensive analysis has
been undertaken to demonstrate that the
MS4 is not causing water quality
impairment.
The NPDES permitting authority can,
at any time, mandate compliance with
program requirements from a previously
waived small MS4 if circumstances
change. For example, a waiver can be
withdrawn in circumstances where the
permitting authority later determines
that a waived small MS4’s storm water
discharge to a small stream will cause
adverse impacts to water quality or
significantly interfere with attainment of
water quality standards. A ‘‘change in
circumstances’’ could involve receipt of
new information. Changed
circumstances can also allow a
regulated small MS4 operator to request
a waiver at any time.
Some commenters expressed concerns
about allowing any small MS4 waivers.
One commenter stated that storm water
pollution prevention plans are
necessary to control storm water
pollution and should be required from
all regulated small MS4s. For the
reasons stated in the Background
section above, EPA agrees that the
discharges from most MS4s in
urbanized areas should be addressed by
a storm water management program
outlined in today’s rule. For MS4s
serving very small areas, however, the
TMDL development process provides an
opportunity to determine whether an
MS4 serving a population less than
1,000 is having a negative impact on any
receiving water that is impaired by a
pollutant that the MS4 discharges. MS4s
serving populations up to 10,000 may
receive a waiver only if a
comprehensive analysis of its impact on
receiving water has been performed.
Other commenters said that waivers
should not be allowed for small MS4s
that discharge into another regulated
MS4. These commenters stated that the
word ‘‘substantially’’ should be
removed from § 122.32(d)(i) so that a
waiver would not be allowed for any
system ‘‘contributing to the storm water
pollutant loadings of a physically
interconnected regulated MS4.’’ As
previously mentioned under the
designation discussion of section
II.G.2.c, EPA believes that the word
‘‘substantially’’ provides needed
flexibility to the permitting authorities.
It is important to note that this is only
one aspect that the permitting authority
must consider when deciding on the
appropriateness of a waiver.
4. Issue Permits
NPDES permitting authorities have a
number of responsibilities regarding the
permit process. Sections 123.35(d)
through (g) ensure a certain level of
consistency for permits, yet provide
numerous opportunities for flexibility.
NPDES permitting authorities must
issue NPDES permits to cover municipal
sources to be regulated under § 122.32,
unless waived under § 122.32(c). EPA
encourages permitting authorities to use
general permits as the vehicle for
permitting and regulating small MS4s.
The Agency notes, however, that some
operators may wish to take advantage of
the option to join as a co-permittee with
an MS4 regulated under the existing
NPDES storm water program.
Today’s final rule includes a
provision, § 123.35(f), that requires
NPDES permitting authorities to either
include the requirements in § 122.34 for
NPDES permits issued for regulated
small MS4s or to develop permit limits
based on a permit application submitted
by a small MS4. See Section II.H.3.a,
Minimum Control Measures, for more
details on the actual § 122.34
requirements. See Section II.H.3.c for
alternative and joint permitting options.
In an attempt to avoid duplication of
effort, § 122.34(c) allows NPDES
permitting authorities to include permit
conditions that direct an MS4 to meet
the requirements of a qualifying local,
Tribal, or State municipal storm water
management program. For a local,
Tribal, or State program to ‘‘qualify,’’ it
must impose, at a minimum, the
relevant requirements of § 122.34(b). A
regulated small MS4 must still follow
the procedural requirements for an
NPDES permit (i.e., submit an
application, either an individual
application or an NOI under a general
permit) but will instead follow the
substantive pollutant control
68747
requirements of the qualifying local,
Tribal, or State program.
Under § 122.35(b), NPDES permitting
authorities may also recognize existing
responsibilities among governmental
entities for the minimum control
measures in an NPDES small MS4 storm
water permit. For example, the permit
might acknowledge the existence of a
State administered program that
addresses construction site runoff and
require that the municipalities only
develop substantive controls for the
remaining minimum control measures.
By acknowledging existing programs,
this provision is meant to reduce the
duplication of efforts and to increase the
flexibility of the NPDES storm water
program.
Section 123.35(e) of today’s final rule
requires permitting authorities to
specify a time period of up to 5 years
from the issuance date of an NPDES
permit for regulated small MS4
operators to fully develop and
implement their storm water programs.
As discussed more fully below,
permitting authorities should be
providing extensive support to the local
governments to assist them in
developing and implementing their
programs.
In the proposed rule, EPA stated that
the permitting authority would develop
the menu of BMPs and if they failed to
do so, EPA would develop the menu.
Commenters felt that EPA should
develop a menu of BMPs, rather than
just providing guidance. In the
settlement agreement for seeking an
extension to the deadline for issuing
today’s rule, EPA committed to
developing a menu of BMPs by October
27, 2000. Permitting authorities can
adopt EPA’s menu or develop their own.
The menu itself is not intended to
replace more comprehensive BMP
guidance materials. As part of the tool
box efforts, EPA will provide separate
guidance documents that discuss the
results from EPA-sponsored nationwide
studies on the design, operation and
maintenance of BMPs. Additionally,
EPA expects that the new rulemaking on
construction BMPs may provide more
specific design, operation and
maintenance criteria.
5. Support and Oversee the Local
Programs
NPDES permitting authorities are
responsible for supporting and
overseeing the local municipal
programs. Section 123.35(h) of today’s
final rule highlights issues associated
with these responsibilities.
To the extent possible, NPDES
permitting authorities should provide
financial assistance to MS4s, which
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68748 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
often have limited resources, for the
development and implementation of
local programs. EPA recognizes that
funding for programs at the State and
Tribal levels may also be limited, but
strongly encourages States and Tribes to
provide whatever assistance is possible.
In lieu of actual dollars, NPDES
permitting authorities can provide costcutting
assistance in a number of ways.
For example, NPDES permitting
authorities can develop outreach
materials for MS4s to distribute or the
NPDES permitting authority can
actually distribute the materials.
Another option is to implement an
erosion and sediment control program
across an entire State (or Tribal land),
thus alleviating the need for the MS4 to
implement its own program. The
NPDES permitting authority must
balance the need for site-specific
controls, which are best handled by a
local MS4, with its ability to offer
financial assistance. EPA, States, Tribes,
and MS4s should work as a team in
making these kinds of decisions.
NPDES permitting authorities are
responsible for overseeing the local
programs. Permitting authorities should
work with the regulated community and
other stakeholders to assist in local
program development and
implementation. This might include
sharing information, analyzing reports,
and taking enforcement actions, as
necessary. NPDES permitting authorities
play a vital role in supporting local
programs by providing technical and
programmatic assistance, conducting
research projects, and monitoring
watersheds. The NPDES permitting
authority can also assist the MS4
permittee in obtaining adequate legal
authority at the local level in order to
implement the local component of the
CWA section 402(p)(6) program.
NPDES permitting authorities are
encouraged to coordinate and utilize the
data collected under several programs.
States and Tribes address point and
nonpoint source storm water discharges
through a variety of programs. In
developing programs to carry out CWA
section 402(p)(6), EPA recommends that
States and Tribes coordinate all of their
water pollution evaluation and control
programs, including the continuing
planning process under CWA section
303(e), the existing NPDES program, the
CZARA program, and nonpoint source
pollution control programs.
In addition, NPDES permitting
authorities are encouraged to provide a
brief (e.g., two-page) reporting format to
facilitate compilation and analysis of
data from reports submitted under
§ 122.34(g)(3). EPA intends to develop a
model form for this purpose.
H. Municipal Role
1. Scope of Today’s Rule
Today’s final rule attempts to
establish an equitable and
comprehensive four-pronged approach
for the designation of municipal
sources. First, the approach defines for
automatic coverage the municipal
systems believed to be of highest threat
to water quality. Second, the approach
designates municipal systems that meet
a set of objective criteria used to
measure the potential for water quality
impacts. Third, the approach designates
on a case-by-case basis municipal
systems that ‘‘contribute substantially to
the pollutant loadings of a physicallyinterconnected
[regulated] MS4.’’
Finally, the approach designates on a
case-by-case basis, upon petition,
municipal systems that ‘‘contribute to a
violation of a water quality standard or
are a significant contributor of
pollutants.’’
Today’s final rule automatically
designates for regulation small MS4s
located in urbanized areas, and requires
that NPDES permitting authorities
examine for potential designation, at a
minimum, a particular subset of small
MS4s located outside of urbanized
areas. Today’s rule also includes
provisions that allow for waivers from
the otherwise applicable requirements
for the smallest MS4s that are not
causing impairment of a receiving water
body. Qualifications for the waivers
vary depending on whether the MS4
serves a population under 1,000 or a
population under 10,000. See
§§ 122.32(d) and (e). These waivers are
discussed further in section II.G.3. Any
small MS4 automatically designated by
the final rule or designated by the
permitting authority under today’s final
rule is defined as a ‘‘regulated’’ small
MS4 unless it receives a waiver.
In today’s final rule, all regulated
small MS4s must establish a storm
water discharge control program that
meets the requirements of six minimum
control measures. These minimum
control measures are public education
and outreach on storm water impacts,
public involvement participation, illicit
discharge detection and elimination,
construction site storm water runoff
control, post-construction storm water
management in new development and
redevelopment, and pollution
prevention/good housekeeping for
municipal operations.
Today’s rule allows for a great deal of
flexibility in how an operator of a
regulated small MS4 is authorized to
discharge under an NPDES permit, by
providing various options for obtaining
permit coverage and satisfying the
required minimum control measures.
For example, the NPDES permitting
authority can incorporate by reference
qualifying State, Tribal, or local
programs in an NPDES general permit
and can recognize existing
responsibilities among different
governmental entities for the
implementation of minimum control
measures. In addition, a regulated small
MS4 can participate in the storm water
management program of an adjoining
regulated MS4 and can arrange to have
another governmental entity implement
a minimum control measure on their
behalf.
2. Municipal Definitions
a. Municipal Separate Storm Sewer
Systems (MS4s)
The CWA does not define the term
‘‘municipal separate storm sewer.’’ EPA
defined municipal separate storm sewer
in the existing storm water permit
application regulations to mean, in part,
a conveyance or system of conveyances
(including roads with drainage systems
and municipal streets) that is ‘‘owned or
operated by a State, city, town borough,
county, parish, district, association, or
other public body * * * designed or
used for collecting or conveying storm
water which is not a combined sewer
and which is not part of a Publicly
Owned Treatment Works as defined at
40 CFR 122.2’’ (see § 122.26(b)(8)(i)).
Section 122.26 contains definitions of
medium and large municipal separate
storm sewer systems but no definition of
a municipal separate storm sewer
system, even though the term MS4 is
commonly used. In today’s rule, EPA is
adding a definition of municipal
separate storm sewer system and small
municipal separate storm sewer system
along with the abbreviations MS4 and
small MS4.
The existing municipal permit
application regulations define
‘‘medium’’ and ‘‘large’’ MS4s as those
located in an incorporated place or
county with a population of at least
100,000 (medium) or 250,000 (large) as
determined by the latest Decennial
Census (see §§ 122.26(b)(4) and
122.26(b)(7)). In today’s final rule, these
regulations have been revised to define
all medium and large MS4s as those
meeting the above population
thresholds according to the 1990
Decennial Census.
Today’s rule also corrects the titles
and contents of Appendices F, G, H,& I
to Part 122. EPA is adding those
incorporated places and counties whose
1990 population caused them to be
defined as a ‘‘medium’’ or ‘‘large’’ MS4.
All of these MS4s have applied for
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permit coverage so the effect of this
change to the appendices is simply to
make them more accurate. They will not
need to be revised again because today’s
rule ‘‘freezes’’ the definition of
‘‘medium’’ and ‘‘large’’ MS4s at those
that qualify based on the 1990 census.
EPA received several comments
supporting and opposing the proposal to
‘‘freeze’’ the definitions based on the
1990 census. Commenters who
disagreed with EPA’s position cited the
unfairness of municipalities that reach
the medium or large threshold at a later
date having fewer permitting
requirements compared to those that
were already at the population
thresholds when the existing storm
water regulations took effect. EPA
recognizes this disparity but does not
believe it is unfair, as explained in the
proposed rule. The decision was based
on the fact that the deadlines from the
existing regulations have lapsed, and
because the permitting authority can
always require more from operators of
MS4s serving ‘‘newly over 100,000’’
populations.
b. Small Municipal Separate Storm
Sewer Systems
The proposal to today’s final rule
added ‘‘the United States’’ as a potential
owner or operator of a municipal
separate storm sewer. This addition was
intended to address an omission from
existing regulations and to clarify that
federal facilities are, in fact, covered by
the NPDES program for municipal storm
water discharges when the federal
facility is like other regulated MS4s.
EPA received a comment that this
change would cause federal facilities
located in Phase 1 areas to be
considered Phase 1 dischargers due to
the definition of medium and large
MS4s. All MS4s located in Phase 1
cities or counties are defined as Phase
1 medium or large MS4s. EPA believes
that all federal facilities serve a
population of under 100,000 and should
be regulated as small MS4s. Therefore,
in § 122.26(a)(16) of today’s final rule,
EPA is adding federal facilities to the
NPDES storm water discharge control
program by changing the proposed
definition of small municipal separate
storm sewer system. Paragraph (i) of this
section restates the definition of
municipal separate storm sewer with
the addition of ‘‘the United States’’ as a
owner or operator of a small municipal
separate storm sewer. Paragraph (ii)
repeats the proposed language that
states that a small MS4 is a municipal
separate storm sewer that is not medium
or large.
Most commenters agreed that federal
facilities should be covered in the same
way as other similar MS4s. However,
EPA received several comments asking
whether individual federal buildings
such as post offices or urban offices of
the U.S. Park Service must apply for
coverage as regulated small MS4s. Most
of these buildings have, at most, a
parking lot with runoff or a storm sewer
that connects with a municipality’s
MS4. In § 122.26(a)(16)(iii), EPA
clarifies that the definition of small MS4
does not include individual buildings.
These buildings may have a municipal
separate storm sewer but they do not
have a ‘‘system’’ of conveyances. The
minimum measures for small MS4s
were written to apply to storm sewer
‘‘systems’’ providing storm water
drainage service to human populations
and not to individual buildings. This is
true of municipal separate storm sewers
from State buildings as well as from
federal buildings.
There will likely be situations where
the permitting authority must decide if
a federal or State complex should be
regulated as a small MS4. A federal
complex of two or three buildings could
be treated as a single building and not
be required to apply for coverage. In
these situations, permitting authorities
will have to use their best judgment as
to the nature of the complex and its
storm water conveyance system.
Permitting authorities should also
consider whether the federal or State
complex cooperates with its
municipality’s efforts to implement
their storm water management program.
Along with the questions about
individual buildings, EPA received
many questions about how various
provisions of the rule should be
interpreted for federal and State
facilities. EPA acknowledges that
federal and State facilities are different
from municipalities. EPA believes,
however, that the minimum measures
are flexible enough that they can be
implemented by these facilities. As an
example, DOD commenters asked about
how to interpret the term ‘‘public’’ for
military installations when
implementing the public education
measure. EPA agrees with the suggested
interpretation of ‘‘public’’ for DOD
facilities as ‘‘the resident and employee
population within the fence line of the
facility.’’
EPA also received many comments
from State departments of transportation
(DOTs) that suggested the ways in
which they are different from
municipalities and should therefore be
regulated differently. Storm water
discharges from State DOTs in Phase 1
areas should already be regulated under
Phase I. The preamble to Phase 1 clearly
states that ‘‘all systems within a
68749
geographical area including highways
and flood control districts will be
covered.’’ Many permitting authorities
regulated State DOTs as co-permittees
with the Phase 1 municipality in which
the highway is located. State DOTs that
are already regulated under Phase I are
not required to comply with Phase II.
State DOTs that are not already
regulated have various options for
meeting the requirements of today’s
rule. These options are discussed in
Section II.H.3.c.iv below. Several DOTs
commented that some of the minimum
measures are outside the scope of their
mission or that they do not have the
legal authority required for
implementation. EPA believes that the
flexibility of the minimum measures
allows them to be implemented by most
MS4s, including DOTs. When a DOT
does not have the necessary legal
authority, EPA encourages the DOT to
coordinate their storm water
management efforts with the
surrounding municipalities and other
State agencies. Under today’s rule,
DOTs can use any of the options of
§ 122.35 to share their storm water
management responsibilities. DOTs may
also want to work with their permitting
authority to develop a State-wide DOT
storm water permit.
There are many storm water
discharges from State DOTs and other
State MS4s located in Phase 1 areas that
were not regulated under Phase 1.
Today’s rule adds many more State
facilities as well as all federal facilities
located in urbanized areas. All of these
State and federal facilities that fit the
definition of a small MS4 must be
covered by a storm water management
program. The individual permitting
authorities must decide what type of
permit is most applicable.
The existing NPDES storm water
program already regulates storm water
from federally or State-operated
industrial sources. Federal or State
facilities that are currently regulated
due to their industrial discharges may
already be implementing some of
today’s rule requirements.
EPA received comments that
questioned the apparent inconsistency
between regulating a federal facility
such as a hospital and not regulating a
similar private facility. Normally, this
type of private facility is regulated by
the MS4. EPA believes that federal
facilities are subject to local water
quality regulations, including storm
water requirements, by virtue of the
waiver of sovereign immunity in CWA
section 313. However, there are special
problems faced by MS4s in their efforts
to regulate federal facilities that have
not been encountered in regulating
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68750 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
similar private facilities. To ensure
comprehensive coverage, today’s rule
merely clarifies the need for permit
coverage for these federal facilities.
i. Combined Sewer Systems (CSS).
The definition of small MS4s does not
include combined sewer systems. A
combined sewer system is a wastewater
collection system that conveys sanitary
wastewater and storm water through a
single set of pipes to a publicly-owned
treatment works (POTW) for treatment
before discharging to a receiving
waterbody. During wet weather events
when the capacity of the combined
sewer system is exceeded, the system is
designed to discharge prior to the
POTW treatment plant directly into a
receiving waterbody. Such an overflow
is a combined sewer overflow or CSO.
Combined sewer systems are not subject
to existing regulations for municipal
storm water discharges, nor will they be
subject to today’s regulations. EPA
addresses combined sewer systems and
CSOs in the National Combined Sewer
Overflow (CSO) Control Policy issued
on April 19, 1994 (59 FR 18688). The
CSO Control Policy contains provisions
for developing appropriate, site-specific
NPDES permit requirements for
combined sewer systems. CSO
discharges are subject to limitations
based on the best available technology
economically achievable for toxic
pollutants and based on the best
conventional pollutant control
technology for conventional pollutants.
MS4s are subject to a different
technology standard for all pollutants,
specifically to reduce pollutants to the
maximum extent practicable.
Some municipalities are served by
both separate storm sewer systems and
combined sewer systems. If such a
municipality is located within an
urbanized area, only the separate storm
sewer systems within that municipality
is included in the NPDES storm water
program and subject to today’s final
rule. If the municipality is not located
in an urbanized area, then the NPDES
permitting authority has discretion as to
whether the discharges from the
separate storm sewer system is subject
to today’s final rule. The NPDES
permitting authority will use the same
process to designate discharges from
portions of an MS4 for permit coverage
where the municipality is also served by
a combined sewer system.
EPA recognizes that municipalities
that have both combined and separate
storm sewer systems may wish to find
ways to develop a unified program to
meet all wet weather water pollution
control requirements more efficiently. In
the proposal to today’s final rule, EPA
sought comment on ways to achieve
such a unified program. Many
municipalities that are served by CSSs
and MS4s commented that it is
inequitable to force them to comply
with Phase II at this time because
implementation of the CSO Control
Policy through their NPDES permits
already imposes a significant financial
burden. They requested an extension of
the implementation time frame. They
did not provide ideas on how to unify
the two programs. EPA encourages
permitting authorities to work with
these municipalities as they develop
and begin implementation of their CSO
and storm water management programs.
If both sets of requirements are carefully
coordinated early, a cost-effective wet
weather program can be developed that
will address both CSO and storm water
requirements.
ii. Owners/Operators. Several
commenters mentioned the difference
between the existing storm water
application requirement for municipal
operators and the proposed municipal
requirement for owners or operators to
apply. They felt that this inconsistency
is confusing. The preamble to the
existing regulations makes numerous
references to owner/operator so there
was no intent to make a clear distinction
between Phase I and Phase II. Section
122.21(b) states that when the owner
and operator are different, the operator
must obtain the permit. MS4s often have
several operators. The owner may be
responsible for one part of the system
and a regional authority may be
responsible for other aspects. EPA
proposed the ‘‘owner or operator’’
language to convey this dual
responsibility. However, when the
owner is responsible for some part of a
storm water management plan, it is also
an operator.
EPA has revised the regulation
language to clarify that ‘‘an operator’’
must apply for a permit. When
responsibilities for the MS4 are shared,
all operators must apply.
c. Regulated Small MS4s
In today’s final rule, all small MS4s
located in an urbanized area are
automatically designated as ‘‘regulated’’
small MS4s provided that they were not
previously designated into the existing
storm water program. Unlike medium
and large MS4s under the existing storm
water regulations, not all small MS4s
are designated under today’s final rule.
Therefore, today’s rule distinguishes
between ‘‘small’’ MS4s and ‘‘regulated
small’’ MS4s.
EPA’s definition of ‘‘regulated small
MS4s’’ in the proposal to today’s rule
included mention of incorporated
places and counties. Along with the
definition, EPA included Appendices 6
and 7 to assist in the identification of
areas that would probably require
coverage as ‘‘automatically designated’’
(Appendix 6) or ‘‘potentially
designated’’ (Appendix 7). The
definition and the appendices raised
many questions about exactly who was
required to comply with the proposed
requirements. Commenters raised issues
about the definition of ‘‘incorporated
place’’ and the status of towns,
townships, and other places that are not
considered incorporated by the Census
Bureau. They also asked about special
districts, regional authorities, MS4s
already regulated, and other questions
in order to clarify the rule’s coverage.
EPA has revised § 122.32(a) to clarify
that discharges are regulated under
today’s rule if they are from a small MS4
that is in an urbanized area and has not
received a waiver or they are designated
by the permitting authority. Today’s
rule does not regulate the county, city,
or town. Today’s rule regulates the MS4.
Therefore, even though a county may be
listed in Appendix 6, if that county does
not own or operate the municipal storm
sewer systems, the county does not have
to submit an application or develop a
storm water management program. If
another entity does own or operate an
MS4 within the county, for example, a
regional utility district, that other entity
needs to submit the application and
develop the program.
Some commenters suggested that EPA
should change the rule language to
specifically allow regional authorities to
be the permitted entity and to allow
small MS4s to apply as co-permittees.
EPA believes that the best way to clarify
that regional authorities can be the
primary permitted entity is the change
to § 122.32(a) and the explanation
above. Because EPA assumes that
today’s regulation will be implemented
through general permits, MS4s will not
be co-permittees under a general permit
in the same manner as under individual
permits. EPA has added § 122.33(a)(4)
and made a minor change to § 122.35(a)
to clarify that small MS4s can work
together to share the responsibilities of
a storm water management program.
This is discussed further in Section
II.H.3.c.iv below.
The proposed rule stated that when a
county or Federal Indian reservation is
only partially included in an urbanized
area, only MS4s in the urbanized
portion of the county or Federal Indian
reservation would be regulated. In the
rare cases when an incorporated place is
only partially included in the urbanized
area, the entire incorporated place
would be regulated. EPA received
comments asking about towns and
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
townships, because they were not
considered to be incorporated areas
according to the Census Bureau’s
definition. Would the whole town/
township be covered or only the part of
the town/township in the urbanized
area? States use many different types of
systems in their geographical divisions.
Some towns are similar to incorporated
cities and others are large areas that are
more similar to counties. Some
commenters thought that the urbanized
area boundary was arbitrary, and if part
of a town or county was covered, it all
should be covered. Other commenters
noted that some townships and counties
encompass very large areas of which
only a small portion is urbanized. Due
to the great variety of situations, EPA
has decided that for all geographical
entities, only MS4s in the urbanized
area are automatically designated. The
population densities associated with the
Census Bureau’s designation of
urbanized areas provide the basis for
designation of these areas to protect
water quality. This focused designation
provides for consistency and allows for
flexibility on the part of the MS4 and
the permitting authority. In those
situations where an incorporated place
or a town is not all in an ‘‘urbanized
area’’, there is a good possibility that it
is served by more than one MS4. In
those cases where the area is served by
the same MS4, it makes sense to
develop a storm water program for the
whole area. Permitting authorities may
also decide to designate all MS4s within
a county or township, if they believe it
is necessary to protect water quality.
Most operators of MS4s will not need
to independently determine the status of
coverage under today’s rule. EPA has
revised the proposed Appendices 6 and
7 to include towns and townships.
Therefore, these appendices will alert
most MS4s as to whether they are likely
to be covered under today’s rule.
However, each permitting authority
must make the decision as to who
requires coverage. Most likely, an
illustrative list of the regulated areas
will be published with the general
permit. If not, the operator can contact
its permitting authority or the Bureau of
the Census to find out if their separate
storm sewer systems are within an
urbanized area.
i. Urbanized Area Description. Under
the Bureau of the Census definition of
‘‘urbanized area,’’ adopted by EPA for
the purposes of today’s final rule, ‘‘an
urbanized area (UA) comprises a place
and the adjacent densely settled
surrounding territory that together have
a minimum population of 50,000
people.’’ The proposal to today’s rule
provided the full definition and case
studies to help explain the census
category of ‘‘urbanized area.’’ Appendix
2 is a simplified urbanized area
illustration to help demonstrate the
concept of urbanized areas in relation to
today’s final rule. The ‘‘urbanized area’’
is the shaded area that includes within
its boundaries incorporated places, a
portion of a Federal Indian reservation,
portions of two counties, an entire town,
and portions of another town. All small
MS4s located in the shaded area are
covered by the rule, unless and until
waived by the permitting authority. Any
small MS4s located outside of the
shaded area are subject to potential
designation by the permitting authority.
There are 405 urbanized areas in the
United States that cover 2 percent of
total U.S. land area and contain
approximately 63 percent of the nation’s
population (see Appendix 3 for a listing
of urbanized areas of the United States
and Puerto Rico). These numbers
include U.S. Territories, although
Puerto Rico is the only territory to have
Census-designated urbanized areas.
Urbanized areas constitute the largest
and most dense areas of settlement. The
purpose of determining an ‘‘urbanized
area’’ is to delineate the boundaries of
development and map the actual builtup
urban area. The Bureau of the Census
geographers liken it to flying over an
urban area and drawing a line around
the boundary of the built-up area as
seen from the air.
Using data from the latest decennial
census, the Census Bureau applies the
urbanized area definition nationwide
(including U.S. Tribes and Territories)
and determines which places and
counties are included within each
urbanized area. For each urbanized area,
the Bureau provides full listings of who
is included, as well as detailed maps
and special CD-ROM files for use with
computerized mapping systems (such as
GIS). Each State’s data center receives a
copy of the list, and some maps,
automatically. The States also have the
CD–ROM files and a variety of
publications available to them for
reference from the Bureau of the Census.
In addition, local or regional planning
agencies may have urbanized area files
already. New listings for urbanized
areas based on the 2000 Census will be
available by July/August 2001, but the
more comprehensive computer files will
not be available until late 2001/early
2002.
Additional designations based on
subsequent census years will be
governed by the Bureau of the Census’
definition of an urbanized area in effect
for that year. Based on historical trends,
EPA expects that any area determined
by the Bureau of the Census to be
68751
included within an urbanized area as of
the 1990 Census will not later be
excluded from the urbanized area as of
the 2000 Census. However, it is
important to note that even if this
situation were to occur, for example,
due to a possible change in the Bureau
of the Census’ urbanized area definition,
a small MS4 that is automatically
designated into the NPDES program for
storm water under an urbanized area
calculation for any given Census year
will remain regulated regardless of the
results of subsequent urbanized area
calculations.
ii. Rationale for Using Urbanized
Areas. EPA is using urbanized areas to
automatically designate regulated small
MS4s on a nationwide basis for several
reasons: (1) studies and data show a
high correlation between degree of
development/ urbanization and adverse
impacts on receiving waters due to
storm water (U.S. EPA, 1983; Driver et
al., 1985; Pitt, R.E. 1991. ‘‘Biological
Effects of Urban Runoff Discharges.’’
Presented at the Engineering
Foundation Conference: Urban Runoff
and Receiving Systems; An
Interdisciplinary Analysis of Impact,
Monitoring and Management, August
1991. Mt. Crested Butte, CO. American
Society of Civil Engineers, New York.
1992.; Pitt, R.E. 1995. ‘‘Biological Effects
of Urban Runoff Discharges,’’ in Storm
water Runoff and Receiving Systems:
Impact, Monitoring, and Assessment.
Lewis Publishers, New York.; Galli, J.
1990. Thermal Impacts Associated with
Urbanization and Storm water
Management Best Management
Practices. Prepared for the Sediment
and Storm water Administration of the
Maryland Department of the
Environment.; Klein, 1979), (2) the
blanket coverage within the urbanized
area encourages the watershed approach
and addresses the problem of ‘‘donutholes,’’
where unregulated areas are
surrounded by areas currently regulated
(storm water discharges from donut hole
areas present a problem due to their
contributing uncontrolled adverse
impacts on local waters, as well as by
frustrating the attainment of water
quality goals of neighboring regulated
communities), (3) this approach targets
present and future growth areas as a
preventative measure to help ensure
water quality protection, and (4) the
determination of urbanized areas by the
Bureau of the Census allows operators
of small MS4s to quickly determine
whether they are included in the NPDES
storm water program as a regulated
small MS4.
Urbanized areas have experienced
significant growth over the past 50
years. According to EPA calculations
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68752 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
based on Census data from 1980 to
1990, the national average rate of growth
in the United States during that 10-year
period was more than 4 percent. For the
same period, the average growth within
urbanized areas was 15.7 percent and
the average for outside of urbanized
areas was just more than 1 percent. The
new development occurring in these
growing areas can provide some of the
best opportunities for implementing
cost-effective storm water management
controls.
EPA received many comments on the
proposal to designate discharges based
on location within urbanized areas. EPA
considered numerous other approaches,
several of which are discussed in the
proposal to today’s final rule. Several
commenters wanted designation to be
based on proven water quality problems
rather than inclusion in an urbanized
area. One commenter proposed an
approach based on the CWA 303(d)
listing of impaired waters and the
wasteload allocation conducted under
the TMDL process. (See section II.L. on
the section 303(d) and TMDL process).
The commenter’s proposal would
designate small MS4s on a case-by-case
basis, covering only those discharges
where receiving streams are shown to
have water quality problems,
particularly a failure to meet water
quality standards, including designated
uses. The commenter further described
a non-NPDES approach where a State
would require cost-effective measures
based on a proportionate share under a
waste load allocation, equitably
allocated among all pollutant
contributors. These waste load
allocations would be developed with
input from all stakeholders, and
remedial measures would be
implemented in a phased manner based
on the probability of results and/or
economic feasibility. The States would
then periodically reassess the receiving
streams to determine whether the
remedial measures are working, and if
not, require additional control measures
using the same procedure used to
establish the initial measures. What the
commenter describes is almost a TMDL.
EPA considered a remedial approach
based on water quality impairment and
rejected it for failure to prevent almost
certain degradation caused by urban
storm water. EPA’s main concern in
opting not to take a case-by-case
approach to designation was that this
approach would not provide controls for
storm water discharges in receiving
streams until after a site-specific
demonstration of adverse water quality
impact. The commenter’s suggestion
would do nothing to prevent pollution
in waters that may be meeting water
quality standards, including supporting
designated uses. The approach would
also rely on identifying storm water
management programs following
comprehensive watershed plans and
TMDL development. In most States,
water quality assessments have
traditionally been conducted for
principal mainstream rivers and their
major tributaries, not all surface waters.
The establishment of TMDLs
nationwide will take many years, and
many States will conduct additional
monitoring to determine water quality
conditions prior to establishing TMDLs.
In addition, a case-by-case approach
would not address the problem of
‘‘donut holes’’ within urbanized areas
and a lack of consistency among
similarly situated municipal systems
would remain commonplace. After
careful consideration of all comments,
EPA still believes that the approach in
today’s rule is the most appropriate to
protect water quality. Protection
includes prevention as well as
remediation.
d. Municipal Designation by the
Permitting Authority
Today’s final rule also allows NPDES
permitting authorities to designate MS4s
that should be included in the storm
water program as regulated small MS4s
but are not located within urbanized
areas. The final rule requires, at a
minimum, that a set of designation
criteria be applied to all small MS4s
within a jurisdiction that serves a
population of at least 10,000 and has a
population density of at least 1,000.
Appendix 7 to this preamble provides
an illustrative list of places that the
Agency anticipates meet this criteria. In
addition, any small MS4 may be the
subject of a petition to the NPDES
permitting authority for designation. See
Section II.G, NPDES Permitting
Authority’s Role for more details on the
designation and petition processes. EPA
believes that the approach of combining
nationwide and local designation to
determine municipal coverage balances
the potential for significant adverse
impacts on water quality with local
watershed protection and planning
efforts.
e. Waiving the Requirements for Small
MS4s
Today’s final rule includes some
flexibility in the nationwide coverage of
all small MS4s located in urbanized
areas by providing the NPDES
permitting authority with the discretion
to waive the otherwise applicable
requirements of the smallest MS4s that
are not causing the impairment of a
receiving water body. Qualifications for
the waiver vary depending on whether
the MS4 serves a population under
1,000 or a population between 1,000
and 10,000. Note that even if a small
MS4 has requirements waived, it can
subsequently be brought back into the
program if circumstances change. See
Section II.G, NPDES Permitting
Authority’s Role, for more details on
this process.
3. Municipal Permit Requirements
a. Overview
i. Summary of Permitting Options.
Today’s rule outlines six minimum
control measures that constitute the
framework for a storm water discharge
control program for regulated small
MS4s that, when properly implemented,
will reduce pollutants to the maximum
extent practicable (MEP). These six
minimum control measures are
specified in § 122.34(b) and are
discussed below in section ‘‘II.H.3.b,
Program Requirements-Minimum
Control Measures.’’ All operators of
regulated small MS4s are required to
obtain coverage under an NPDES
permit, unless the requirement is
waived by the permitting authority in
accordance with today’s rule.
Implementation of § 122.34(b) may be
required either through an individual
permit or, if the State or EPA makes one
available to the facility, through a
general permit. The process for issuing
and obtaining these permits is discussed
below in section ‘‘II.H.3.c, Application
Requirements.’’
As an alternative to implementing a
program that complies with the
requirements of § 122.34, today’s rule
provides operators of regulated small
MS4s with the option of applying for an
individual permit under § 122.26(d).
The permit application requirements in
§ 122.26 were originally drafted to apply
to medium and large MS4s. Although
EPA believes that the requirements of
§ 122.34 provide a regulatory option that
is appropriate for most small MS4s, the
operators of some small MS4s may
prefer more individualized
requirements. This alternative
permitting option for regulated small
MS4s that wish to develop their own
program is discussed below in section
‘‘II.H.3.c.iii. Alternative Permit Option.’’
The second alternative permitting
option for regulated small MS4s is to
become co-permittees with a medium or
large MS4 regulated under § 122.26(d),
as discussed below in section
‘‘II.H.3.c.v. Joint Permit Programs.’’
ii. Water Quality-Based Requirements.
Any NPDES permit issued under today’s
rule must, at a minimum, require the
operator to develop, implement, and
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
enforce a storm water management
program designed to reduce the
discharge of pollutants from a regulated
system to the MEP, to protect water
quality, and satisfy the appropriate
water quality requirements of the Clean
Water Act (see MEP discussion in the
following section). Absent evidence to
the contrary, EPA presumes that a small
MS4 program that implements the six
minimum measures in today’s rule does
not require more stringent limitations to
meet water quality standards. Proper
implementation of the measures will
significantly improve water quality. As
discussed further below, however, small
MS4 permittees should modify their
programs if and when available
information indicates that water quality
considerations warrant greater attention
or prescriptiveness in specific
components of the municipal program.
If the program is inadequate to protect
water quality, including water quality
standards, then the permit will need to
be modified to include any more
stringent limitations necessary to
protect water quality.
Regardless of the basis for the
development of the effluent limitations
(whether designed to implement the six
minimum measures or more stringent or
prescriptive limitations to protect water
quality), EPA considers narrative
effluent limitations requiring
implementation of BMPs to be the most
appropriate form of effluent limitations
for MS4s. CWA section 402(p)(3)(b)(iii)
expresses a preference for narrative
rather than numeric effluent limits, for
example, by reference to ‘‘management
practices, control techniques and
system, design and engineering
methods, and such other provisions as
the Administrator or the State
determines appropriate for the control
of such pollutants.’’ 33 U.S.C.
1342(p)(3)(B)(iii). EPA determines that
pollutants from wet weather discharges
are most appropriately controlled
through management measures rather
than end-of-pipe numeric effluent
limitations. As explained in the Interim
Permitting Policy for Water Quality-
Based Effluent Limitations in Storm
Water Permits, issued on August 1, 1996
[61 FR 43761 (November 26, 1996), EPA
believes that the currently available
methodology for derivation of numeric
water quality-based effluent limitations
is significantly complicated when
applied to wet weather discharges from
MS4s (compared to continuous or
periodic batch discharges from most
other types of discharge). Wet weather
discharges from MS4s introduce a high
degree of variability in the inputs to the
models currently available for
derivation of water quality based
effluent limitations, including
assumptions about instream and
discharge flow rates, as well as effluent
characterization. In addition, EPA
anticipates that determining compliance
with any such numeric limitations may
be confounded by practical limitations
in sample collection.
In the first two to three rounds of
permit issuance, EPA envisions that a
BMP-based storm water management
program that implements the six
minimum measures will be the extent of
the NPDES permit requirements for the
large majority of regulated small MS4s.
Because the six measures represent a
significant level of control if properly
implemented, EPA anticipates that a
permit for a regulated small MS4
operator implementing BMPs to satisfy
the six minimum control measures will
be sufficiently stringent to protect water
quality, including water quality
standards, so that additional, more
stringent and/or more prescriptive water
quality based effluent limitations will be
unnecessary.
If a small MS4 operator implements
the six minimum control measures in
§ 122.34(b) and the discharges are
determined to cause or contribute to
non-attainment of an applicable water
quality standard, the operator needs to
expand or better tailor its BMPs within
the scope of the six minimum control
measures. EPA envisions that this
process will occur during the first two
to three permit terms. After that period,
EPA will revisit today’s regulations for
the municipal separate storm sewer
program.
If the permitting authority (rather than
the regulated small MS4 operator) needs
to impose additional or more specific
measures to protect water quality, then
that action will most likely be the result
of an assessment based on a TMDL or
equivalent analysis that determines
sources and allocations of pollutant(s) of
concern. EPA believes that the small
MS4’s additional requirements, if any,
should be guided by its equitable share
based on a variety of considerations,
such as cost effectiveness, proportionate
contribution of pollutants, and ability to
reasonably achieve wasteload
reductions. Narrative effluent
limitations in the form of BMPs may
still be the best means of achieving
those reductions.
See Section II.L, Water Quality Issues,
for further discussion of this approach
to permitting, consistent with EPA’s
interim permitting guidance. Pursuant
to CWA section 510, States
implementing their own NPDES
programs may develop more stringent or
68753
more prescriptive requirements than
those in today’s rule.
EPA’s interpretation of CWA section
402(p)(3)(B)(iii) was recently reviewed
by the Ninth Circuit in Defenders of
Wildlife, et al v. Browner, No. 98–71080
(September 15, 1999). The Court upheld
the Agency’s action in issuing five MS4
permits that included water qualitybased
effluent limitations. The Court
did, however, disagree with EPA’s
interpretation of the relationship
between CWA sections 301 and 402(p).
The Court reasoned that MS4s are not
compelled by section 301(b)(1)(C) to
meet all State water quality standards,
but rather that the Administrator or the
State may rely on section
402(p)(3)(B)(iii) to require such controls.
Accordingly, the Defenders of Wildlife
decision is consistent with the Agency’s
1996 ‘‘Interim Permitting Policy for
Water Quality-Based Effluent
Limitations in Storm Water Permits.’’
As noted, the 1996 Policy describes
how permits would implement an
iterative process using BMPs,
assessment, and refocused BMPs,
leading toward attainment of water
quality standards. The ultimate goal of
the iteration would be for water bodies
to support their designated uses. EPA
believes this iterative approach is
consistent with and implements section
301(b)(1)(C), notwithstanding the Ninth
Circuit’s interpretation. As an
alternative to basing these water qualitybased
requirements on section
301(b)(1)(C), however, EPA also believes
the iterative approach toward
attainment of water quality standards
represents a reasonable interpretation of
CWA section 402(p)(3)(B)(iii). For this
reason, today’s rule specifies that the
‘‘compliance target’’ for the design and
implementation of municipal storm
water control programs is ‘‘to reduce
pollutants to the maximum extent
practicable (MEP), to protect water
quality, and to satisfy the appropriate
water quality requirements of the
CWA.’’ The first component, reductions
to the MEP, would be realized through
implementation of the six minimum
measures. The second component, to
protect water quality, reflects the overall
design objective for municipal programs
based on CWA section 402(p)(6). The
third component, to implement other
applicable water quality requirements of
the CWA, recognizes the Agency’s
specific determination under CWA
section 402(p)(3)(B)(iii) of the need to
achieve reasonable further progress
toward attainment of water quality
standards according to the iterative BMP
process, as well as the determination
that State or EPA officials who establish
TMDLs could allocate waste loads to
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68754 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
MS4s, as they would to other point
sources.
EPA does not presume that water
quality will be protected if a small MS4
elects not to implement all of the six
minimum measures and instead applies
for alternative permit limits under
§ 122.26(d). Operators of such small
MS4s that apply for alternative permit
limits under § 122.26(d) must supply
additional information through
individual permit applications so that
the permit writer can determine
whether the proposed program reduces
pollutants to the MEP and whether any
other provisions are appropriate to
protect water quality and satisfy the
appropriate water quality requirements
of the Clean Water Act.
iii. Maximum Extent Practicable.
Maximum extent practicable (MEP) is
the statutory standard that establishes
the level of pollutant reductions that
operators of regulated MS4s must
achieve. The CWA requires that NPDES
permits for discharges from MS4s ‘‘shall
require controls to reduce the discharge
of pollutants to the maximum extent
practicable, including management
practices, control techniques and
system, design and engineering
methods.’’ CWA Section
402(p)(3)(B)(iii). This section also calls
for ‘‘such other provisions as the [EPA]
Administrator or the State determines
appropriate for the control of such
pollutants.’’ EPA interprets this
standard to apply to all MS4s, including
both existing regulated (large and
medium) MS4s, as well as the small
MS4s regulated under today’s rule.
For regulated small MS4s under
today’s rule, authorization to discharge
may be under either a general permit or
individual permit, but EPA anticipates
and expects that general permits will be
the most common permit mechanism.
The general permit will explain the
steps necessary to obtain permit
authorization. Compliance with the
conditions of the general permit and the
series of steps associated with
identification and implementation of
the minimum control measures will
satisfy the MEP standard.
Implementation of the MEP standard
under today’s rule will typically require
the permittee to develop and implement
appropriate BMPs to satisfy each of the
required six minimum control
measures.
In issuing the general permit, the
NPDES permitting authority will
establish requirements for each of the
minimum control measures. Permits
typically will require small MS4
permittees to identify in their NOI the
BMPs to be performed and to develop
the measurable goals by which
implementation of the BMPs can be
assessed. Upon receipt of the NOI from
a small MS4 operator, the NPDES
permitting authority will have the
opportunity to review the NOI to verify
that the identified BMPs and
measurable goals are consistent with the
requirement to reduce pollutants under
the MEP standard, to protect water
quality, and to satisfy the appropriate
water quality requirements of the Clean
Water Act. If necessary, the NPDES
permitting authority may ask the
permittee to revise their mix of BMPs,
for example, to better reflect the MEP
pollution reduction requirement. Where
the NPDES permit is not written to
implement the minimum control
measures specified under § 122.34(b),
for example in the case of an individual
permit under § 122.33(b)(2)(ii), the MEP
standard will be applied based on the
best professional judgment of the permit
writer.
Commenters argued that MEP is, as
yet, an undefined term and that EPA
needs to further clarify the MEP
standards by providing a regulatory
definition that includes recognition of
cost considerations and technical
feasibility. Commenters argued that,
without a definition, the regulatory
community is not adequately on notice
regarding the standard with which they
need to comply. EPA disagrees that
affected MS4 permittees will lack notice
of the applicable standard. The
framework for the small MS4 permits
described in this notice provides EPA’s
interpretation of the standard and how
it should be applied.
EPA has intentionally not provided a
precise definition of MEP to allow
maximum flexibility in MS4 permitting.
MS4s need the flexibility to optimize
reductions in storm water pollutants on
a location-by-location basis. EPA
envisions that this evaluative process
will consider such factors as conditions
of receiving waters, specific local
concerns, and other aspects included in
a comprehensive watershed plan. Other
factors may include MS4 size, climate,
implementation schedules, current
ability to finance the program, beneficial
uses of receiving water, hydrology,
geology, and capacity to perform
operation and maintenance.
The pollutant reductions that
represent MEP may be different for each
small MS4, given the unique local
hydrologic and geologic concerns that
may exist and the differing possible
pollutant control strategies. Therefore,
each permittee will determine
appropriate BMPs to satisfy each of the
six minimum control measures through
an evaluative process. Permit writers
may evaluate small MS4 operator’s
proposed storm water management
controls to determine whether reduction
of pollutants to the MEP can be
achieved with the identified BMPs.
EPA envisions application of the MEP
standard as an iterative process. MEP
should continually adapt to current
conditions and BMP effectiveness and
should strive to attain water quality
standards. Successive iterations of the
mix of BMPs and measurable goals will
be driven by the objective of assuring
maintenance of water quality standards.
If, after implementing the six minimum
control measures there is still water
quality impairment associated with
discharges from the MS4, after
successive permit terms the permittee
will need to expand or better tailor its
BMPs within the scope of the six
minimum control measures for each
subsequent permit. EPA envisions that
this process may take two to three
permit terms.
One commenter observed that MEP is
not static and that if the six minimum
control measures are not achieving the
necessary water quality improvements,
then an MS4 should be expected to
revise and, if necessary, expand its
program. This concept, it is argued,
must be clearly part of the definition of
MEP and thus incorporated into the
binding and operative aspects of the
rule. As is explained above, EPA
believes that it is. The iterative process
described above is intended to be
sensitive to water quality concerns. EPA
believes that today’s rule contains
provisions to implement an approach
that is consistent with this comment.
b. Program Requirements’Minimum
Control Measures
A regulated small MS4 operator must
develop and implement a storm water
management program designed to
reduce the discharge of pollutants from
their MS4 to protect water quality. The
storm water management program must
include the following six minimum
measures.
i. Public Education and Outreach on
Storm Water Impacts. Under today’s
final rule, operators of small MS4s must
implement a public education program
to distribute educational materials to the
community or conduct equivalent
outreach activities about the impacts of
storm water discharges on water bodies
and the steps to reduce storm water
pollution. The public education
program should inform individuals and
households about the problem and the
steps they can take to reduce or prevent
storm water pollution.
EPA believes that as the public gains
a greater understanding of the storm
water program, the MS4 is likely to gain
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
more support for the program (including
funding initiatives). In addition,
compliance with the program will
probably be greater if the public
understands the personal
responsibilities expected of them. Wellinformed
citizens can act as formal or
informal educators to further
disseminate information and gather
support for the program, thus easing the
burden on the municipalities to perform
all educational activities.
MS4s are encouraged to enter into
partnerships with their States in
fulfilling the public education
requirement. It may be more costeffective
to utilize a State education
program instead of numerous MS4s
developing their own programs. MS4
operators are also encouraged to work
with other organizations (e.g.,
environmental, nonprofit and industry
organizations) that might be able to
assist in fulfilling this requirement.
The public education program should
be tailored, using a mix of locally
appropriate strategies, to target specific
audiences and communities
(particularly minority and
disadvantaged communities). Examples
of strategies include distributing
brochures or fact sheets, sponsoring
speaking engagements before
community groups, providing public
service announcements, implementing
educational programs targeted at school
age children, and conducting
community-based projects such as storm
drain stenciling, and watershed and
beach cleanups. Operators of MS4s may
use storm water educational information
provided by the State, Tribe, EPA, or
environmental, public interest, trade
organizations, or other MS4s. Examples
of successful public education efforts
concerning polluted runoff can be found
in many State nonpoint source pollution
control programs under CWA section
319.
The public education program should
inform individuals and households
about steps they can take to reduce
storm water pollution, such as ensuring
proper septic system maintenance,
ensuring the use and disposal of
landscape and garden chemicals
including fertilizers and pesticides,
protecting and restoring riparian
vegetation, and properly disposing of
used motor oil or household hazardous
wastes. Additionally, the program could
inform individuals and groups on how
to become involved in local stream and
beach restoration activities as well as
activities coordinated by youth service
and conservation corps and other
citizen groups. Finally, materials or
outreach programs should be directed
toward targeted groups of commercial,
industrial, and institutional entities
likely to have significant storm water
impacts. For example, MS4 operators
should provide information to
restaurants on the impact of grease
clogging storm drains and to auto
garages on the impacts of used oil
discharges.
EPA received comments from
representatives of State DOTs and U.S.
Department of Defense (DOD)
installations seeking exemption from
the public education requirement.
While today’s rule does not exempt
DOTs and military bases from the user
education requirement, the Agency
believes the flexibility inherent in the
Rule addresses many of the concerns
expressed by these commenters.
Certain DOT representatives
commented that if their agencies were
not exempt from the user education
measure’s requirements, they should at
least be allowed to count DOT employee
education as an adequate substitute.
EPA supports the use of existing
materials and programs, granted such
materials and programs meet the rule’s
requirement that the MS4 user
community (i.e., the public) is also
educated concerning the impacts of
storm water discharges on water bodies
and the steps to reduce storm water
pollution.
Finally, certain DOD representatives
requested that ‘‘public,’’ as applied to
their installations, be defined as the
resident and employee populations
within the fence line of the facility. EPA
agrees that the education effort should
be directed toward those individuals
who frequent the federally owned land
(i.e., residents and individuals who
come there to work and use the MS4
facilities).
EPA also received a number of
comments from municipalities stating
that education would be more thorough
and cost effective if accomplished by
EPA on the national level. EPA believes
that a collaborative State and local
approach, in conjunction with
significant EPA technical support, will
best meet the goal of targeting, and
reaching, specific local audiences. EPA
technical support will include a tool
box which will contain fact sheets,
guidance documents, an information
clearinghouse, and training and
outreach efforts.
Finally, EPA received comments
expressing concern that the public
education program simply encourages
the distribution of printed material. EPA
is sensitive to this concern. Upon
evaluation, the Agency made changes to
the proposal’s language for today’s rule.
The language has been changed to
reflect EPA’s belief that a successful
68755
program is one that includes a variety of
strategies locally designed to reach
specific audiences.
ii. Public Involvement/Participation.
Public involvement is an integral part of
the small MS4 storm water program.
Accordingly, today’s final rule requires
that the municipal storm water
management program must comply with
applicable State and local public notice
requirements. Section 122.34(b)(2)
recommends a public participation
process with efforts to reach out and
engage all economic and ethnic groups.
EPA believes there are two important
reasons why the public should be
allowed and encouraged to provide
valuable input and assistance to the
MS4’s program.
First, early and frequent public
involvement can shorten
implementation schedules and broaden
public support for a program.
Opportunities for members of the public
to participate in program development
and implementation could include
serving as citizen representatives on a
local storm water management panel,
attending public hearings, working as
citizen volunteers to educate other
individuals about the program, assisting
in program coordination with other preexisting
programs, or participating in
volunteer monitoring efforts. Moreover,
members of the public may be less
likely to raise legal challenges to a
MS4’s storm water program if they have
been involved in the decision making
process and program development and,
therefore, internalize personal
responsibility for the program
themselves.
Second, public participation is likely
to ensure a more successful storm water
program by providing valuable expertise
and a conduit to other programs and
governments. This is particularly
important if the MS4’s storm water
program is to be implemented on a
watershed basis. Interested stakeholders
may offer to volunteer in the
implementation of all aspects of the
program, thus conserving limited
municipal resources.
EPA recognizes that there are a
number of challenges associated with
public involvement. One challenge is in
engaging people in the public meeting
and program design process. Another
challenge is addressing conflicting
viewpoints. Nevertheless, EPA strongly
believes that these challenges can be
addressed by use of an aggressive and
inclusive program. Section II.K.
provides further discussion on public
involvement.
A number of municipalities sought
clarification from EPA concerning what
the public participation program must
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68756 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
actually include. In response, the actual
requirements are minimal, but the
Agency’s recommendations are more
comprehensive. The public
participation program must only comply
with applicable State and local public
notice requirements. The remainder of
the preamble, as well as the Explanatory
Note accompanying the regulatory text,
provide guidance to the MS4s
concerning what elements a successful
and inclusive program should include.
EPA will provide technical support as
part of the tool box (i.e., providing
model public involvement programs,
conducting public workshops, etc.) to
assist MS4 operators meet the intent of
this measure.
Finally, the Agency encourages MS4s
to seek public participation prior to
submitting an NOI. For example, public
participation at this stage will allow the
MS4 to involve the public in developing
the BMPs and measurable goals for their
NOI.
iii. Illicit Discharge Detection and
Elimination. Discharges from small
MS4s often include wastes and
wastewater from non-storm water
‘‘illicit’’ discharges. Illicit discharge is
defined at 40 CFR 122.26(b)(2) as any
discharge to a municipal separate storm
sewer that is not composed entirely of
storm water, except discharges pursuant
to an NPDES permit and discharges
resulting from fire fighting activities. As
detailed below, other sources of nonstorm
water, that would otherwise be
considered illicit discharges, do not
need to be addressed unless the operator
of the MS4 identifies one or more of
them as a significant source of
pollutants into the system. EPA’s
Nationwide Urban Runoff Program
(NURP) indicated that many storm
water outfalls still discharge during
substantial dry periods. Pollutant levels
in these dry weather flows were shown
to be high enough to significantly
degrade receiving water quality. Results
from a 1987 study conducted in
Sacramento, California, revealed that
slightly less than one-half of the water
discharged from a municipal separate
storm sewer system was not directly
attributable to precipitation runoff (U.S.
Environmental Protection Agency,
Office of Research and Development.
1993. Investigation of Inappropriate
Pollutant Entries Into Storm Drainage
Systems—A User’s Guide. Washington,
DC EPA 600/R–92/238.) A significant
portion of these dry weather flows
results from illicit and/or inappropriate
discharges and connections to the
municipal separate storm sewer system.
Illicit discharges enter the system
through either direct connections (e.g.,
wastewater piping either mistakenly or
deliberately connected to the storm
drains) or indirect connections (e.g.,
infiltration into the storm drain system
or spills collected by drain inlets).
Under the existing NPDES program
for storm water, permit applications for
large and medium MS4s are to include
a program description for effective
prohibition against non-storm water
discharges into their storm sewers (see
40 CFR 122.26 (d)(1)(v)(B) and
(d)(1)(iv)(B)). Further, EPA believes that
in implementing municipal storm water
management plans under these permits,
large and medium MS4 operators
generally found their illicit discharge
detection and elimination programs to
be cost-effective. Properly implemented
programs also significantly improved
water quality.
In today’s rule, any NPDES permit
issued to an operator of a regulated
small MS4 must, at a minimum, require
the operator to develop, implement and
enforce an illicit discharge detection
and elimination program. Inclusion of
this measure for regulated small MS4s is
consistent with the ‘‘effective
prohibition’’ requirement for large and
medium MS4s. Under today’s rule, the
NPDES permit will require the operator
of a regulated small MS4 to: (1) Develop
(if not already completed) a storm sewer
system map showing the location of all
outfalls, and names and location of all
waters of the United States that receive
discharges from those outfalls; (2) to the
extent allowable under State, Tribal, or
local law, effectively prohibit through
ordinance, or other regulatory
mechanism, illicit discharges into the
separate storm sewer system and
implement appropriate enforcement
procedures and actions as needed; (3)
develop and implement a plan to detect
and address illicit discharges, including
illegal dumping, to the system; and (4)
inform public employees, businesses,
and the general public of hazards
associated with illegal discharges and
improper disposal of waste.
The illicit discharge and elimination
program need only address the
following categories of non-storm water
discharges if the operator of the small
MS4 identifies them as significant
contributors of pollutants to its small
MS4: water line flushing, landscape
irrigation, diverted stream flows, rising
ground waters, uncontaminated ground
water infiltration (as defined at 40 CFR
35.2005(20)), uncontaminated pumped
ground water, discharges from potable
water sources, foundation drains, air
conditioning condensation, irrigation
water, springs, water from crawl space
pumps, footing drains, lawn watering,
individual residential car washing,
flows from riparian habitats and
wetlands, dechlorinated swimming pool
discharges, and street wash water
(discharges or flows from fire fighting
activities are excluded from the
definition of illicit discharge and only
need to be addressed where they are
identified as significant sources of
pollutants to waters of the United
States). If the operator of the MS4
identifies one or more of these
categories of sources to be a significant
contributor of pollutants to the system,
it could require specific controls for that
category of discharge or prohibit the
discharges completely.
Several comments were received on
the mapping requirements of the
proposal. Most comments said that more
flexibility should be given to the MS4s
to determine their mapping needs, and
that resources could be better spent in
addressing problems once the illicit
discharges are detected. EPA reviewed
the mapping requirements in the
proposed rule and agrees that some of
the information is not necessary in order
to begin an illicit discharge detection
and elimination program. Today’s rule
requires a map or set of maps that show
the locations of all outfalls and names
and locations of receiving waters.
Knowing the locations of outfalls and
receiving waters are necessary to be able
to conduct dry weather field screening
for non-storm water flows and to
respond to illicit discharge reports from
the public. EPA recommends that the
operator collect any existing
information on outfall locations (e.g.,
review city records, drainage maps,
storm drain maps), and then conduct
field surveys to verify the locations. It
will probably be necessary to ‘‘walk’’
(i.e. wade small receiving waters or use
a boat for larger receiving waters) the
streambanks and shorelines, and it may
take more than one trip to locate all
outfalls. A coding system should be
used to mark and identify each outfall.
MS4 operators have the flexibility to
determine the type (e.g. topographic,
GIS, hand or computer drafted) and size
of maps which best meet their needs.
The map scale should be such that the
outfalls can be accurately located. Once
an illicit discharge is detected at an
outfall, it may be necessary to map that
portion of the storm sewer system
leading to the outfall in order to locate
the source of the discharge.
Several comments requested
clarification of the requirement to
develop and implement a plan to detect
and eliminate illicit discharges. EPA
recommends that plans include
procedures for the following: locating
priority areas; tracing the source of an
illicit discharge; removing the source of
the discharge; and program evaluation
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
and assessment. EPA recommends that
MS4 operators identify priority areas
(i.e., problems areas) for more detailed
screening of their system based on
higher likelihood of illicit connections
(e.g., areas with older sanitary sewer
lines), or by conducting ambient
sampling to locate impacted reaches.
Once priority areas are identified, EPA
recommends visually screening outfalls
during dry weather and conducting field
tests, where flow is occurring, of
selected chemical parameters as
indicators of the discharge source.
EPA’s manual for investigation of
inappropriate pollutant entries into the
storm drainage system (EPA, 1993)
suggests the following parameter list:
specific conductivity, fluoride and/or
hardness concentration, ammonia and/
or potassium concentration, surfactant
and/or fluorescence concentration,
chlorine concentration, pH and other
chemicals indicative of industrial
sources. The manual explains why each
parameter is a good indicator and how
the information can be used to
determine the type of source flow. The
Agency is not recommending that
fluoride and chlorine, generally used to
locate potable water discharges, be
addressed under this program, therefore
a short list of parameters may include
conductivity, ammonia, surfactant and
pH. Some MS4s have found it useful to
measure for fecal coliform or E. coli in
their testing program. Observations of
physical characteristics of the discharge
are also helpful such as flow rate,
temperature, odor, color, turbidity,
floatable matter, deposits and stains,
and vegetation.
The implementation plan should also
include procedures for tracing the
source of an illicit discharge. Once an
illicit discharge is detected and field
tests provide source characteristics, the
next step is to determine the actual
location of the source. Techniques for
tracing the discharge to its place of
origin may include: following the flow
up the storm drainage system via
observations and/or chemical testing in
manholes or in open channels;
televising storm sewers; using infrared
and thermal photography; conducting
smoke or dye tests.
The implementation plan should also
include procedures for removing the
source of the illicit discharge. The first
step may be to notify the property
owner and specify a length of time for
eliminating the discharge. Additional
notifications and escalating legal actions
should also be described in this part of
the plan.
Finally, the implementation plan
should include procedures for program
evaluation and assessment. Procedures
could include documentation of actions
taken to locate and eliminate illicit
discharges such as: number of outfalls
screened, complaints received and
corrected, feet of storm sewers televised,
numbers of discharges and quantities of
flow eliminated, number of dye or
smoke tests conducted. Appropriate
records of such actions should be kept
and should be submitted as part of the
annual reports for the first permit term,
as specified by the permitting authority
(reports only need to be submitted in
years 2 and 4 in later permits). For more
on reporting requirements, see
§ 122.34(g).
EPA received comments regarding an
MS4’s legal authority beyond its
jurisdictional boundaries to inspect or
take enforcement against illicit
discharges. EPA recognizes that illicit
flows may originate in one jurisdiction
and cross into one or more jurisdictions
before being discharged at an outfall. In
such instances, EPA expects the MS4
that detects the illicit flow to trace it to
the point where it leaves their
jurisdiction and notify the adjoining
MS4 of the flow, and any other physical
or chemical information. The adjoining
MS4 should then trace it to the source
or to the location where it enters their
jurisdiction. The process of notifying
the adjoining MS4 should continue
until the source is located and
eliminated. In addition, because any
non-storm water discharge to waters of
the U.S. through an MS4 is subject to
the prohibition against unpermitted
discharges pursuant to CWA section 301
(a), remedies are available under the
federal enforcement provisions of CWA
sections 309 and 505.
EPA requested and received
comments regarding the prohibition and
enforcement provision for this
minimum measure. Commenters
specifically questioned the proposal that
the operator only has to implement the
appropriate prohibition and
enforcement procedures ‘‘to the extent
allowable under State or Tribal law.’’
They raised concerns that by qualifying
prohibition and enforcement procedures
in this manner, the operator could
altogether ignore this minimum measure
where affirmative legal authority did not
exist. Comments suggested that EPA
require States to grant authority to those
municipalities where it did not exist.
Other comments, however, stated that
municipalities cannot exercise legal
authority not granted to them under
State law, which varies considerably
from one State to another. EPA has no
intention of directing State legislatures
on how to allocate authority and
responsibility under State law. As noted
above, there is at least one remedy (the
68757
federal CWA) to control non-storm
water discharges through MS4s. If State
law prevents political subdivisions from
controlling discharges through storm
sewers, EPA anticipates common sense
will prevail to provide those MS4
operators with the ability to meet the
requirements applicable for their
discharges.
One comment reinforced the
importance of public information and
education to the success of this
measure. EPA agrees and suggests that
MS4 operators consider a variety of
ways to inform and educate the public
which could include storm drain
stenciling; a program to promote,
publicize, and facilitate public reporting
of illicit connections or discharges; and
distribution of visual and/or printed
outreach materials. Recycling and other
public outreach programs could be
developed to address potential sources
of illicit discharges, including used
motor oil, antifreeze, pesticides,
herbicides, and fertilizers.
EPA received comments that State
DOT’s lack authority to implement this
measure. EPA believes that most DOTs
can implement most parts of this
measure. If a DOT does not have the
necessary legal authority to implement
any part of this measure, EPA
encourages them to coordinate their
storm water management efforts with
the surrounding MS4s and other State
agencies. Many DOTs that are regulated
under Phase I of this program are copermittees
with the local regulated MS4.
Under today’s rule, DOTs can use any
of the options of § 122.35 to share their
storm water management
responsibilities.
EPA received comments requesting
clarification of various terms such as
‘‘outfall’’ and ‘‘illicit discharge.’’ One
comment asked EPA to reinforce the
point that a ‘‘ditch’’ could be considered
an outfall. The term ‘‘outfall’’ is defined
at 40 CFR 122.26(b)(9) as ‘‘a point
source at the point where a municipal
separate storm sewer discharges to
waters of the United States * * *’’. The
term municipal separate storm sewer is
defined at 40 CFR § 122.26(b)(8) as ‘‘a
conveyance or system of conveyances
(including roads with drainage systems,
municipal streets, catch basins, curbs,
gutters, ditches, man-made channels, or
storm drains) * * *’’. Following the
logic of these definitions, a ‘‘ditch’’ may
be part of the municipal separate storm
sewer, and at the point where the ditch
discharges to waters of the United
States, it would be an outfall. As with
any determination about jurisdictional
provisions of the CWA, however, final
decisions require case specific
evaluations of fact.
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68758 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
One commenter specifically requested
clarification on the relationship between
the term ‘‘illicit discharge’’ and nonstorm
water discharges from fire
fighting. The comment suggested that it
would be impractical to attempt to
determine whether the flow from a
specific fire (i.e., during a fire) is a
significant source of pollution. EPA
intends that MS4s will address all
allowable non-storm water flows
categorically rather than individually. If
an MS4 is concerned that flows from
fire fighting are, as a category,
contributing substantial amounts of
pollutants to their system, they could
develop a program to address those
flows prospectively. The program may
include an analysis of the flow from
several sources, steps to minimize the
pollutant contribution, and a plan to
work with the sources of the discharge
to minimize any adverse impact on
water quality. During the development
of such a program, the MS4 may
determine that only certain types of
flows within a particular category are a
concern, for example, fire fighting flows
at industrial sites where large quantities
of chemicals are present. In this
example, a review of existing
procedures with the fire department
and/or hazardous materials team may
reveal weaknesses or strengths
previously unknown to the MS4
operator.
EPA received comments requesting
modifications to the rule to include onsite
sewage disposal systems (i.e., septic
systems) in the scope of the illicit
discharge program. On-site sewage
disposal systems that flow into storm
drainage systems are within the
definition of illicit discharge as defined
by the regulations. Where they are
found to be the source of an illicit
discharge, they need to be eliminated
similar to any other illicit discharge
source. Today’s rule was not modified
to include discharges from on-site
sewage disposal systems specifically
because those sources are already
within the scope of the existing
definition of illicit discharge.
iv. Construction Site Storm Water
Runoff Control. Over a short period of
time, storm water runoff from
construction site activity can contribute
more pollutants, including sediment, to
a receiving stream than had been
deposited over several decades (see
section I.B.3). Storm water runoff from
construction sites can include
pollutants other than sediment, such as
phosphorus and nitrogen, pesticides,
petroleum derivatives, construction
chemicals, and solid wastes that may
become mobilized when land surfaces
are disturbed. Generally, properly
implemented and enforced construction
site ordinances effectively reduce these
pollutants. In many areas, however, the
effectiveness of ordinances in reducing
pollutants is limited due to inadequate
enforcement or incomplete compliance
with such local ordinances by
construction site operators (Paterson,
R.G. 1994. ‘‘Construction Practices: The
Good, the Bad, and the Ugly.’’
Watershed Protection Techniques 1(2)).
Today’s rule requires operators of
regulated small MS4s to develop,
implement, and enforce a pollutant
control program to reduce pollutants in
any storm water runoff from
construction activities that result in
land disturbance of 1 or more acres (see
§ 122.34(b)(4)). Construction activity on
sites disturbing less than one acre must
be included in the program if the
construction activity is part of a larger
common plan of development or sale
that would disturb one acre or more.
The construction runoff control
program of the regulated small MS4
must include an ordinance or other
regulatory mechanism to require erosion
and sediment controls to the extent
practicable and allowable under State,
Tribal or local law. The program also
must include sanctions to ensure
compliance (for example, non-monetary
penalties, fines, bonding requirements,
and/or permit denials for noncompliance).
The program must also
include, at a minimum: requirements for
construction site operators to implement
appropriate erosion and sediment
control BMPS, such as silt fences,
temporary detention ponds and
diversions; procedures for site plan
review by the small MS4 which
incorporate consideration of potential
water quality impacts; requirements to
control other waste such as discarded
building materials, concrete truck
washout, chemicals, litter, and sanitary
waste at the construction site that may
adversely impact water quality;
procedures for receipt and consideration
of information submitted by the public
to the MS4; and procedures for site
inspection and enforcement of control
measures by the small MS4.
Today’s rule provides flexibility for
regulated small MS4s by allowing them
to exclude from their construction
pollutant control program runoff from
those construction sites for which the
NPDES permitting authority has waived
NPDES storm water small construction
permit requirements. For example, if the
NPDES permitting authority waives
permit coverage for storm water
discharges from construction sites less
than 5 acres in areas where the rainfall
erosivity factor is less than 5, then the
regulated small MS4 does not have to
include these sites in its storm water
management program. Even if
requirements for a discharge from a
given construction site are waived by
the NPDES permitting authority,
however, the regulated small MS4 may
still chose to control those discharges
under the MS4’s construction pollutant
control program, particularly where
such discharges may cause siltation
problems in storm sewers. See Section
II.I.1.b for more information on
construction waivers by the permitting
authority.
Some commenters suggested that the
proposed construction minimum
measure requirements went beyond the
permit application requirements
concerning construction for medium
and large MS4s. In response, EPA has
made changes to the proposed measure
so that it more closely resembles the
MS4 permit application requirements in
existing regulations. For example, as
described below, the Agency revised the
proposed requirements for ‘‘preconstruction
review of site management
plans’’ to require ‘‘procedures for site
plan review.’’
One commenter expressed concerns
that addressing runoff from construction
sites within urbanized areas (through
the small MS4 program) differently from
construction sites outside urbanized
areas (which will not be covered by the
small MS4 program) will encourage
urban sprawl. Today’s rule, together
with the existing requirements, requires
all construction greater than or equal to
1 acre, unless waived, to be covered by
an NPDES permit whether it is located
inside or outside of an urbanized area
(see § 122.26(b)(15)). Today’s rule does
not require small MS4s to control runoff
from construction sites more stringently
or prescriptively than is required for
construction site runoff outside
urbanized areas. Therefore, today’s rule
imposes no substantively different
onsite controls on runoff of storm water
from construction sites in urbanized
areas than from construction sites
outside of urbanized areas.
One commenter recommended that
the small MS4 construction site storm
water runoff control program address all
storm water runoff from construction
sites, not just the runoff into the MS4.
The commenter also believed that MS4s
should provide clear, objective
standards for all construction sites. EPA
agrees. Because today’s rule only
regulates discharges from the MS4, the
construction pollutant control measure
only requires small MS4 operators to
control runoff into its system. As a
practical matter, however, EPA
anticipates that MS4 operators will find
that regulation of all construction site
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
runoff, whether they runoff into the
MS4 or not, will prove to be the most
simple and efficient program. The
Agency may provide more specific
criteria for construction site BMPs in the
forthcoming rule being developed under
CWA section 402(m). See section II.D.1
of today’s rule.
One commenter stated that there is no
need for penalties at the local level by
the small MS4 because the CWA already
imposes sufficient penalties to ensure
compliance. EPA disagrees and believes
that enforcement and compliance at the
local level is both necessary and
preferable. Examples of sanctions, some
not available under the CWA, include
non-monetary penalties, monetary fines,
bonding requirements, and denial of
future or other local permits.
One commenter recommended that
EPA should not include the requirement
to control pollutants other than
sediment from construction sites in this
measure. EPA disagrees with this
comment. The requirement is to control
waste that ‘‘may cause adverse impacts
on water quality.’’ Such wastes may
include discarded building materials,
concrete truck washout, chemicals,
pesticides, herbicides, litter, and
sanitary waste. These wastes, when
exposed to and mobilized by storm
water, can contribute to water quality
impairment.
The proposed rule required
‘‘procedures for pre-construction review
of site management plans.’’ EPA
requested comment on expanding this
provision to require both review and
approval of construction site storm
water plans. Many commenters
expressed the concern that review and
approval of site plans is not only costly
and time intensive, but may
unnecessarily delay construction
projects and unduly burden staff who
administer the local program. In
addition, some commenters expressed
confusion whether EPA proposed preconstruction
review for all site
management plans or only higher
priority sites. To address these
comments, and be consistent with the
permit application requirements for
larger MS4s, EPA changed ‘‘procedures
for pre-construction review of site
management plans’’ to ‘‘procedures for
site plan review.’’ Today’s rule requires
the small MS4 to develop procedures for
site plan review so as to incorporate
consideration of adverse potential water
quality impacts. Procedures should
include review of site erosion and
sediment control plans, preferably
before construction activity begins on a
site. The objective is for the small MS4
operator and the construction site
operator to address storm water runoff
from construction activity early in the
project design process so that potential
consequences to the aquatic
environment can be assessed and
adverse water quality impacts can be
minimized or eliminated.
One commenter requested that EPA
delete the requirement for ‘‘procedures
for receipt and consideration of
information submitted by the public’’
because it went beyond existing storm
water requirements. Another commenter
stated that establishing a separate
process to respond to public inquiries
on a project is a burden to small
communities, especially if the project
has gone through an environmental
review. One commenter requested
clarification of this provision. EPA has
retained this requirement in today’s
final rule to require some formality in
the process for addressing public
inquiries regarding storm water runoff
from construction activities. EPA does
not intend that small MS4s develop a
separate, burdensome process to
respond to every public inquiry. A small
MS4 could, for example, simply log
public complaints on existing storm
water runoff problems from
construction sites and pass that
information on to local inspectors. The
inspectors could then investigate
complaints based on the severity of the
violation and/or priority area.
One commenter believed that the
proposed requirement of ‘‘regular
inspections during construction’’ would
require every construction project to be
inspected more than once by the small
MS4 during the term of a construction
project. EPA has deleted the reference to
‘‘regular inspections.’’ Instead, the small
MS4 will be required to ‘‘develop
procedures for site inspection and
enforcement of control measures.’’
Procedures could include steps to
identify priority sites for inspection and
enforcement based on the nature and
extent of the construction activity,
topography, and the characteristics of
soils and receiving water quality.
In order to avoid duplication of small
MS4 construction requirements with
NPDES construction permit
requirements, today’s rule adds
§ 122.44(s) to recognize that the NPDES
permitting authority can incorporate
qualifying State, Tribal, or local erosion
and sediment control requirements in
NPDES permits for construction site
discharges. For example, a construction
site operator who complies with MS4
construction pollutant control programs
that are referenced in the NPDES
construction permit would satisfy the
requirements of the NPDES permit. See
section II.I.1.d for more information on
incorporating qualifying programs by
68759
reference into NPDES construction
permits. This provision has no impact
on, or direct relation to, the small MS4
operator’s responsibilities under the
construction site storm water runoff
control minimum measure. Conversely,
under § 122.35(b), the permitting
authority may recognize in the MS4’s
permit that another governmental entity,
or the permitting authority itself, is
responsible for implementing one or
more of the minimum measures
(including construction site storm water
runoff control), and not include this
measure in the small MS4’s permit. In
this case, the other governmental
entity’s program must satisfy all of the
requirements of the omitted measure.
v. Post-Construction Storm Water
Management in New Development and
Redevelopment. The NURP study and
more recent investigations indicate that
prior planning and designing for the
minimization of pollutants in storm
water discharges is the most costeffective
approach to storm water
quality management. Reducing
pollutant concentrations in storm water
after the discharge enters a storm sewer
system is often more expensive and less
efficient than preventing or reducing
pollutants at the source. Increased
human activity associated with
development often results in increased
pollutant loading from storm water
discharges. If potential adverse water
quality impacts are considered from the
beginning stages of a project, new
development and redevelopment
provides more opportunities for water
quality protection. For example,
minimization of impervious areas,
maintenance or restoration of natural
infiltration, wetland protection, use of
vegetated drainage ways, and use of
riparian buffers have been shown to
reduce pollutant loadings in storm
water runoff from developed areas. EPA
encourages operators of regulated small
MS4s to identify specific problem areas
within their jurisdictions and initiate
innovative solutions and designs to
focus attention on those areas through
local planning.
In today’s rule at § 122.34(b)(5),
NPDES permits issued to an operator of
a regulated small MS4 will require the
operator to develop, implement, and
enforce a program to address storm
water runoff from new development and
redevelopment projects that result in
land disturbance of greater than or equal
to one acre, including projects less than
one acre that are part of a larger
common plan of development or sale,
that discharge into the MS4.
Specifically, the NPDES permit will
require the operator of a regulated small
MS4 to: (1) Develop and implement
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68760 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
strategies which include a combination
of structural and/or non-structural best
management practices (BMPs)
appropriate for the community; (2) use
an ordinance, or other regulatory
mechanism to address post-construction
runoff from new development and
redevelopment projects to the extent
allowable under State, Tribal or local
law; (3) ensure adequate long-term
operation and maintenance of BMPs;
and (4) ensure that controls are in place
that would minimize water quality
impacts. EPA intends the term
‘‘redevelopment’’ to refer to alterations
of a property that change the ‘‘footprint’’
of a site or building in such a way that
results in the disturbance of equal to or
greater than 1 acre of land. The term is
not intended to include such activities
as exterior remodeling, which would
not be expected to cause adverse storm
water quality impacts and offer no new
opportunity for storm water controls.
EPA received comments requesting
guidance and clarification of the rule
requirements. The scope of the
comments ranged from general requests
for more details on how MS4 operators
should accomplish the four
requirements listed above, to specific
requests for information regarding
transfer of ownership for structural
controls, as well as ongoing
responsibility for operation and
maintenance. By the term
‘‘combination’’ of BMPs, EPA intends a
combination of structural and/or nonstructural
BMPs. For this requirement,
the term ‘‘combination’’ is meant to
emphasize that multiple BMPs should
be considered and adopted for use in
the community. A single BMP generally
cannot significantly reduce pollutant
loads because pollutants come from
many sources within a community. The
BMPs chosen should: (1) Be appropriate
for the local community; (2) minimize
water quality impacts; and (3) attempt to
maintain pre-development runoff
conditions. In choosing appropriate
BMPs, EPA encourages small MS4
operators to participate in locally-based
watershed planning efforts which
attempt to involve a diverse group of
stakeholders. Each new development
and redevelopment project should have
a BMP component. If an approach is
chosen that primarily focuses on
regional or non-structural BMPs,
however, then the BMPs may be located
away from the actual development site
(e.g., a regional water quality pond).
Non-structural BMPs are preventative
actions that involve management and
source controls such as: (1) Policies and
ordinances that provide requirements
and standards to direct growth to
identified areas, protect sensitive areas
such as wetlands and riparian areas,
maintain and/or increase open space
(including a dedicated funding source
for open space acquisition), provide
buffers along sensitive water bodies,
minimize impervious surfaces, and
minimize disturbance of soils and
vegetation; (2) policies or ordinances
that encourage infill development in
higher density urban areas, and areas
with existing storm sewer infrastructure;
(3) education programs for developers
and the public about project designs
that minimize water quality impacts;
and (4) other measures such as
minimization of the percentage of
impervious area after development, use
of measures to minimize directly
connected impervious areas, and source
control measures often thought of as
good housekeeping, preventive
maintenance and spill prevention.
Detailed examples of non-structural
BMPs follow.
Preserving open space may help to
protect water quality as well as provide
other benefits such as recharging
groundwater supplies, detaining storm
water, supporting wildlife and
providing recreational opportunities.
Although securing funding for open
space acquisition may be difficult,
various funding mechanisms have been
used. New Jersey uses a portion of their
State sales tax (voter approved for a ten
year period) as a stable source of
funding to finance the preservation of
historic sites, open space and farmland.
Colorado uses part of the proceeds from
the State lottery to acquire and manage
open space. Some local municipalities
use a percentage of the local sales tax
revenue to pay for open space
acquisition (e.g., Jefferson County, CO
has had an open space program in place
since 1977 funded by a 0.50 percent
sales tax). Open space can be acquired
in the form of: fee simple purchase;
easements; development rights;
purchase and sellback or leaseback
arrangements; purchase options; private
land trusts; impact fees; and land
dedication requirements. Generally, fee
simple purchases provide the highest
level of development control and
certainty of preservation, whereas the
other forms of acquisition may provide
less control, though they would also
generally be less costly.
Cluster development, while allowing
housing densities comparable to
conventional zoning practice,
concentrates housing units in a portion
of the total site area which provides for
greater open space, recreation, stream
protection and storm water control. This
type of development, by reducing lot
sizes, can protect sensitive areas and
result in less impervious surface, as well
as reduce the cost for roads and other
infrastructure.
Minimizing directly connected
impervious areas (DCIAs) is a drainage
strategy that seeks to reduce paved areas
and directs storm water runoff to
landscaped areas or to structural
controls such as grass swales or buffer
strips. This strategy can slow the rate of
runoff, reduce runoff volumes, attenuate
peak flows, and encourage filtering and
infiltration of storm water. It can be
made an integral part of drainage
planning for any development (Urban
Drainage and Flood Control District,
Denver, CO. 1992. Urban Storm
Drainage Criteria Manual, Volume 3—
Best Management Practices). The Urban
Drainage and Flood Control District
manual describes three levels for
minimizing DCIAs. At Level 1 all
impervious surfaces are made to drain
over grass-covered areas before reaching
a storm water conveyance system. Level
2 adds to Level 1 and replaces street
curb and gutter systems with lowvelocity
grass-lined swales and pervious
street shoulders. In addition to Levels 1
and 2, Level 3 over-sizes swales and
configures driveway and street crossing
culverts to use grass-lined swales as
elongated detention basins.
Structural BMPs include: (1) Storage
practices such as wet ponds and
extended-detention outlet structures; (2)
filtration practices such as grassed
swales, sand filters and filter strips; and
(3) infiltration practices such as
infiltration basins and infiltration
trenches.
EPA recommends that small MS4
operators ensure the appropriate
implementation of the structural BMPs
by considering some or all of the
following: (1) Pre-construction review of
BMP designs; (2) inspections during
construction to verify BMPs are built as
designed; (3) post-construction
inspection and maintenance of BMPs;
and (4) sanctions to ensure compliance
with design, construction or operation
and maintenance (O&M) requirements
of the program.
EPA cautions that certain infiltration
systems such as dry wells, bored wells
or tile drainage fields may be subject to
Underground Injection Control (UIC)
program requirements (see 40 CFR Part
144.12.). To find out more about these
requirements, contact your state UIC
Program, or call EPA’s Safe Drinking
Water Hotline at 1–800–426–4791.
In order to meet the third postconstruction
requirement (ensuring
adequate long-term O&M of BMPs), EPA
recommends that small MS4 operators
evaluate various O&M management
agreement options. The most common
options are agreements between the
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MS4 operator and another party such as
post-development landowners (e.g.,
homeowners’ associations, office park
owners, other government departments
or entities), or regional authorities (e.g.,
flood control districts, councils of
government). These agreements
typically require the post-construction
property owner to be responsible for the
O&M and may include conditions
which: allow the MS4 operator to be
reimbursed for O&M performed by the
MS4 operator that is the responsibility
of the property owner but is not
performed; allow the MS4 operator to
enter the property for inspection
purposes; and in some cases specify that
the property owner submit periodic
reports.
In providing the guidance above, EPA
intends the requirements in today’s rule
to be consistent with the permit
application requirements for large MS4s
for post-construction controls for new
development and redevelopment. MS4
operators have significant flexibility
both to develop this measure as
appropriate to address local concerns,
and to apply new control technologies
as they become available. Storm water
pollution control technologies are
constantly being improved. EPA
recommends that MS4s be responsive to
these changes, developments or
improvements in control technologies.
EPA will provide more detailed
guidance addressing the responsibility
for long-term O&M of storm water
controls in guidance materials. The
guidance will also provide information
on appropriate planning considerations,
structural controls and non-structural
controls. EPA also intends to develop a
broad menu of BMPs as guidance to
ensure flexibility to accommodate local
conditions.
EPA received comments suggesting
that requirements for new development
be treated separately from
redevelopment in the rule. The
comment stressed that new
development on raw land presents
fewer obstacles and more opportunities
to incorporate elements for preventing
water quality impacts, whereas
redevelopment projects are constrained
by space limitations and existing
infrastructure. Another comment
suggested allowing waivers from the
redevelopment requirements if the
redevelopment does not result in
additional adverse water quality
impacts, and where BMPs are not
technologically or economically
feasible. EPA recognizes that
redevelopment projects may have more
site constraints which narrow the range
of appropriate BMPs. Today’s rule
provides small MS4 operators with the
flexibility to develop requirements that
may be different for redevelopment
projects, and may also include
allowances for alternate or off-site BMPs
at certain redevelopment projects. Nonstructural
BMPs may be the most
appropriate approach for smaller
redevelopment projects.
EPA received comments requesting
clarification on what is meant by ‘‘predevelopment’’
conditions within the
context of redevelopment. Predevelopment
refers to runoff conditions
that exist onsite immediately before the
planned development activities occur.
Pre-development is not intended to be
interpreted as that period before any
human-induced land disturbance
activity has occurred.
EPA received comments on the
guidance language in the proposed rule
and preamble which suggest that
implementation of this measure should
‘‘attempt to maintain pre-development
runoff conditions’’ and that ‘‘postdevelopment
conditions should not be
different than pre-development
conditions in a way that adversely
affects water quality.’’ Many comments
expressed concern that maintaining predevelopment
runoff conditions is
impossible and cost-prohibitive, and
objected to any reference to ‘‘flow’’ or
increase in volume of runoff. Other
comments support the inclusion of this
language in the final rule. Similar
references in today’s rule relating to predevelopment
runoff conditions are
intended as recommendations to
attempt to maintain pre-development
runoff conditions. With these
recommendations, EPA intends to
prevent water quality impacts resulting
from increased discharges of pollutants,
which may result from increased
volume of runoff. In many cases,
consideration of the increased flow rate,
velocity and energy of storm water
discharges following development
unavoidably must be taken into
consideration in order to reduce the
discharge of pollutants, to meet water
quality standards and to prevent
degradation of receiving streams. EPA
recommends that municipalities
consider these factors when developing
their post-construction storm water
management program.
Some comments said that the quoted
phrases in the paragraph above are
directives that imply federal land use
control, which they argue is beyond the
authority of the CWA. EPA recognizes
that land use planning is within the
authority of local governments.
EPA disagrees, however, with the
implication that today’s rule dictates
any such land use decisions. The
requirement for small MS4 operators to
68761
develop a program to address discharges
resulting from new development and
redevelopment is essentially a pollution
prevention measure. The Rule provides
the MS4 operator with flexibility to
determine the appropriate BMPs to
address local water quality concerns.
EPA recognizes that these program goals
may not be applied to every site, and
expects that MS4s will develop an
appropriate combination of BMPs to be
applied on a site-by-site, regional or
watershed basis.
vi. Pollution Prevention/Good
Housekeeping for Municipal
Operations. Under today’s final rule,
operators of MS4s must develop and
implement an operation and
maintenance program (‘‘program’’) that
includes a training component and has
the ultimate goal of preventing or
reducing storm water from municipal
operations (in addition to those that
constitute storm water discharges
associated with industrial activity). This
measure’s emphasis on proper O&M of
MS4s and employee training, as
opposed to requiring the MS4 to
undertake major new activities, is meant
to ensure that municipal activities are
performed in the most efficient way to
minimize contamination of storm water
discharges.
The program must include
government employee training that
addresses prevention measures
pertaining to municipal operations such
as: parks, golf courses and open space
maintenance; fleet maintenance; new
construction or land disturbance;
building oversight; planning; and storm
water system maintenance. The program
can use existing storm water pollution
prevention training materials provided
by the State, Tribe, EPA, or
environmental, public interest, or trade
organizations.
EPA also encourages operators of
MS4s to consider the following in
developing a program: (1) Implement
maintenance activities, maintenance
schedules, and long-term inspection
procedures for structural and nonstructural
storm water controls to
reduce floatables and other pollutants
discharged from the separate storm
sewers; (2) implement controls for
reducing or eliminating the discharge of
pollutants from streets, roads, highways,
municipal parking lots, maintenance
and storage yards, waste transfer
stations, fleet or maintenance shops
with outdoor storage areas, and salt/
sand storage locations and snow
disposal areas operated by the MS4; (3)
adopt procedures for the proper
disposal of waste removed from the
separate storm sewer systems and areas
listed above in (2), including dredge
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68762 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
spoil, accumulated sediments,
floatables, and other debris; and (4)
adopt procedures to ensure that new
flood management projects are assessed
for impacts on water quality and
existing projects are assessed for
incorporation of additional water
quality protection devices or practices.
Ultimately, the effective performance of
the program measure depends on the
proper maintenance of the BMPs, both
structural and non-structural. Without
proper maintenance, BMP performance
declines significantly over time.
Additionally, BMP neglect may produce
health and safety threats, such as
structural failure leading to flooding,
undesirable animal and insect breeding,
and odors. Maintenance of structural
BMPs could include: replacing upper
levels of gravel; dredging of detention
ponds; and repairing of retention basin
outlet structure integrity. Maintenance
of non-structural BMPs could include
updating educational materials
periodically.
EPA emphasizes that programs should
identify and incorporate existing storm
water practices and training, as well as
non-storm water practices or programs
that have storm water pollution
prevention benefits, as a means to avoid
duplication of efforts and reduce overall
costs. EPA recommends that MS4s
incorporate these new obligations into
their existing programs to the greatest
extent feasible and urges States to
evaluate MS4 programs with
programmatic efficiency in mind. EPA
designed this minimum control measure
as a modified version of the permit
application requirements for medium
and large MS4s described at 40 CFR
122.26(d)(2)(iv), in order to provide
more flexibility for these smaller MS4s.
Today’s requirements provide for a
consistent approach to control
pollutants from O&M among medium,
large, and regulated small MS4s.
By properly implementing a program,
operators of MS4s serve as a model for
the rest of the regulated community.
Furthermore, the establishment of a
long-term program could result in cost
savings by minimizing possible damage
to the system from floatables and other
debris and, consequently, reducing the
need for repairs.
EPA received comments requesting
clarification of what this measure
requires. Certain municipalities
expressed concern that the measure has
the potential to impose significant costs
associated with EPA’s requirement that
operators of MS4s consider
implementing controls for reducing or
eliminating the discharge of pollutants
from streets, roads, highways, municipal
parking lots, and salt/sand storage
locations and snow disposal areas
operated by the municipality. EPA
disagrees that a requirement to consider
such controls will impose considerable
costs.
One commenter objected to the
preamble language from the proposal
suggesting that EPA does not expect the
MS4 to undertake new activity. While it
remains the Agency’s expectation that
major new activity will not be required,
the MEP process should drive MS4s to
incorporate the measure’s obligations
into their existing programs to achieve
the pollutant reductions to the
maximum extent practicable.
Certain commenters requested a
definition for ‘‘municipal operations.’’
EPA has revised the language to more
clearly define municipal operations.
Questions may remain concerning
whether discharges from specific
municipal activities constitute
discharges associated with industrial
activities (requiring NPDES permit
authorization according to the
requirements for industrial storm water
that apply in that State) or from
municipal operations (subject only to
the controls developed in the MS4
control program). Even though there
may be different substantive
requirements that apply depending on
the source of the discharge, EPA has
modified the deadlines for permit
coverage so that all the regulated
municipally owned and operated
sources become subject to permit
requirements on the same date. The
deadline is the same for permit coverage
for this minimum measure as for permit
coverage for municipally owned/
operated industrial sources.
c. Application Requirements
An NPDES permit that authorizes the
discharge from a regulated small MS4
may take the form of either an
individual permit issued to one or more
facilities as co-permittees or a general
permit that applies to a group of MS4s.
For reasons of administrative efficiency
and to reduce the paperwork burden on
permittees, EPA expects that most
discharges from regulated small MS4s
will be authorized under general
permits. These NPDES general permits
will provide specific instructions on
how to obtain coverage, including
application requirements. Typically,
such application requirements will be
satisfied by the submission of a Notice
of Intent (NOI) to be covered by the
general permit. In this section, EPA
explains the small MS4 operator’s
application requirements for obtaining
coverage under a NPDES permit for
storm water.
i. Best Management Practices and
Measurable Goals, Section 122.34(d) of
today’s rule requires the operator of a
regulated small MS4 that wishes to
implement a program under § 122.34 to
identify and submit to the NPDES
permitting authority a list of the best
management practices (‘‘BMPs’’) that
will be implemented for each minimum
control measure in their storm water
management program. They also must
submit measurable goals for the
development and implementation of
each BMP. The BMPs and the
measurable goals must be included
either in an NOI to be covered under a
general permit or in an individual
permit application.
The operator’s submission must
identify, as appropriate, the months and
years in which the operator will
undertake actions required to
implement each of the minimum control
measures, including interim milestones
and the frequency of periodic actions.
The Agency revised references to
‘‘starting and completing’’ actions from
the proposed rule because many actions
will be repetitive or ongoing. The
submission also must identify the
person or persons responsible for
implementing or coordinating the small
MS4 storm water program. See
§ 122.34(d). The submitted BMPs and
measurable goals become enforceable
according to the terms of the permit.
The first permit can allow the permittee
up to five years to fully implement the
storm water management program.
Several commenters opposed making
the measurable goals enforceable permit
conditions. Some suggested that a
permittee should be able to change its
goals so that BMPs that are not
functioning as intended can be replaced.
EPA agrees that a permittee should be
free to switch its BMPs and
corresponding goals to others that
accomplish the minimum measure or
measures. The permittee is required to
implement BMPs that address the
minimum measures in § 122.34(b). If the
permittee determines that its original
combination of BMPs are not adequate
to achieve the objectives of the
municipal program, the MS4 should
revise its program to implement BMPs
that are adequate and submit to the
permitting authority a revised list of
BMPs and measurable goals. EPA
suggests that permits describe the
process for revising BMPs and
measurable goals, such as whether the
permittee should follow the same
procedures as were required for the
submission of the original NOI and
whether the permitting authority’s
approval is necessary prior to the
permittee implementing the revised
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
BMPs. The permittee should indicate on
its periodic report whether any BMPs
and measurable goals have been revised
since the last periodic report.
Some commenters expressed concern
that making the measurable goals
enforceable would encourage the
development of easily attained goals
and, conversely, discourage the setting
of ambitious goals. Others noted that it
is often difficult to determine the
pollutant reduction that can be achieved
by BMPs until several years after
implementation. Much of the opposition
to the enforceability of measurable goals
appears to have been based on a
mistaken understanding that measurable
goals must consist of pollutant
reduction targets to be achieved by the
corresponding BMPs.
Today’s rule requires the operator to
submit either measurable goals that
serve as BMP design objectives or goals
that quantify the progress of
implementation of the actions or
performance of the permittee’s BMPs. At
a minimum, the required measurable
goals should describe specific actions
taken by the permittee to implement
each BMP and the frequency and the
dates for such actions. Although the
operator may choose to do so, it is not
required to submit goals that measure
whether a BMP or combination of BMPs
is effective in achieving a specific result
in terms of storm water discharge
quality. For example, a measurable goal
might involve a commitment to inspect
a given number of drainage areas of the
collection system for illicit connections
by a certain date. The measurable goal
need not commit to achieving a specific
amount of pollutant reduction through
the elimination of illicit connections.
Other measurable goals could include
the date by which public education
materials would be developed, a certain
percentage of the community
participating in a clean-up campaign,
the development of a mechanism to
address construction site runoff, and a
reduction in the percentage of
imperviousness associated with new
development projects.
To reduce the risk that permittees will
develop inadequate BMPs, EPA intends
to develop a menu of BMPs to assist the
operators of regulated small MS4s with
the development of municipal
programs. States may also develop a
menu of BMPs. Today’s rule provides
that the measurable goals that
demonstrate compliance with the
minimum control measures in §§ 122.34
(b)(3) through (b)(6) do not have to be
met if the State or EPA has not issued
a menu of BMPs at the time the MS4
submits its NOI. Commenters pointed
out that the proposed rule would have
made the measurable goals
unenforceable if the menu of BMPs was
not available, but the proposal was
silent as to the enforceability of the
implementation of BMPs. Today’s rule
clarifies that the operators are not free
to do nothing prior to the issuance of a
menu of BMPs; they still must make a
good faith effort to implement the BMPs
designed to comply with each measure.
See § 122.34(d)(2). The operators would
not, however, be liable for failure to
meet its measurable goals if a menu of
BMPs was not available at the time they
submit their NOI.
The proposed rule provision in
§ 123.35 stated that the ‘‘[f]ailure to
issue the menu of BMPs would not
affect the legal status of the general
permit.’’ This concept is included in the
final rule in § 122.34(d)(2)’s clarification
that the permittee still must comply
with other requirements of the general
permit.
Unlike the proposed rule, today’s rule
does not require that each BMP in the
menu developed by the State or EPA be
regionally appropriate, cost-effective
and field-tested. Various commenters
criticized those criteria as unworkable,
and one described them as ‘‘ripe for
ambiguity and abuse.’’ Other
commenters feared that the operators of
regulated small MS4s would never be
required to achieve their goals until
menus were developed that were costeffective,
field-tested and appropriate
for every conceivable subregion.
While some municipal commenters
supported the requirement that a menu
of BMPs be made available that
included BMPs that had been
determined to be regionally appropriate,
field-tested and cost-effective, others
raised concerns that they would be
restricted to a limited menu. Some
commenters supported such a detailed
menu because they thought they would
only be able to select BMPs that were on
the menu, while others thought that it
was the permitting authority’s
responsibility to develop BMPs
narrowly tailored to their situation. In
response, EPA notes that the operators
will not be restricted to implementing
only, or all of, the BMPs included on the
menu. Since the menu does not require
permittees to implement the BMPs
included on the menu, it is also not
necessary to apply the public notice and
other procedures that some commenters
thought should be applied to the
development of the menu of BMPs.
The purpose of the BMP menu is to
provide guidance to assist the operators
of regulated small MS4s with the
development and refinement of their
local program, not to limit their options.
Permittees may implement BMPs other
68763
than those on the menu unless a State
restricts its permittees to specific BMPs.
To the extent possible, EPA will
develop a menu of BMPs that describes
the appropriateness of BMPs to specific
regions, whether the BMPs have been
field-tested, and their approximate
costs. The menu, however, is not
intended to relieve permittees of the
need to implement BMPs that are
appropriate for their specific
circumstances.
If there are no known relevant BMPs
for a specific circumstance, a permittee
has the option of developing and
implementing pilot BMPs that may be
better suited to their circumstances.
Where BMPs are experimental, the
permittee should consider committing
to measurable goals that address its
schedule for implementing its selected
BMPs rather than goals of achieving
specific pollutant reductions. If the
BMPs implemented by the permittee do
not achieve the desired objective, the
permittee may be required to commit to
different or revised BMPs.
As stated in § 123.35(g), EPA is
committed to issuing a menu of BMPs
prior to the deadline for the issuance of
permits. This menu would serve as
guidance for all operators of regulated
small MS4s nationwide. After
developing the initial menu of BMPs,
EPA intends to periodically modify,
update, and supplement the menu of
BMPs based on the assessments of the
MS4 storm water program and research.
States may rely on EPA’s menu of BMPs
or issue their own. If States develop
their own menus, they would constitute
additional guidance (or perhaps
requirements in some States) for the
operators to follow. Several commenters
were confused by the proposed rule
language that stated that States must
provide or issue a menu of BMPs and,
if they fail to do so, EPA ‘‘may’’ do so.
Some read this language as not requiring
either EPA or the State to develop the
menu. EPA had intended that it would
develop a menu and that States could
either provide the EPA developed menu
or one developed by the State.
EPA has dropped the proposed
language that States ‘‘must’’ develop the
menu of BMPs. Some commenters
thought that it was inappropriate to
require States to issue guidance. A
menu of BMPs issued by either EPA or
a permittee’s State will satisfy the
condition in § 122.34(d) that a
regulatory authority provide a menu of
BMPs. A State could require its
permittees to follow its menu of BMPs
provided that they are adequate to
implement § 122.34(b).
Several commenters raised concerns
that operators of small MS4s could be
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68764 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
required to submit their BMPs and
measurable goals before EPA or the
State has issued a menu of BMPs. EPA
has assumed primary responsibility for
developing a menu of BMPs to
minimize the possibility of this
occurring. Should a general permit be
issued before a menu of BMPs is
available, the permit writer would have
the option of delaying the date by which
the identification of the BMPs and
measurable goals must be submitted to
the permitting authority until some time
after a menu of BMPs is available.
Several municipal commenters raised
concerns that they would begin to
develop a program only to be later told
by the permitting authority or
challenged in a citizen suit that their
BMPs were inadequate. They expressed
a need for certainty regarding what their
permit required. Several commenters
suggested that EPA require permitting
authorities to approve or disapprove the
submitted BMPs and measurable goals.
EPA disagrees that formal approval or
disapproval by the permitting authority
is needed.
EPA acknowledges that the lack of a
formal approval process does place on
the permittee some responsibility for
designing and determining the adequacy
of its BMPs. Once the permittee has
submitted its BMPs to the permitting
authority as part of its NOI, it must
implement them in order to achieve the
corresponding measurable goals. EPA
does not believe that this results in the
uncertainty to the extent expressed by
some commenters or unduly expose the
permittee to the risk of citizen suit. If
the permit is very specific regarding
what the permittee must do, then the
uncertainty is eliminated. If the permit
is less prescriptive, the permittee has
greater latitude in determining for itself
what constitutes an adequate program.
A citizen suit could impose liability on
the permittee only if the program that it
develops and implements clearly does
not satisfy the requirements of the
general permit. EPA believes today’s
approach strikes a balance between the
competing goals of providing certainty
as to what constitutes an adequate
program and providing flexibility to the
permittees.
Commenters were divided on whether
five years was a reasonable and
expeditious schedule for a MS4 to
implement its program. Some thought
that it was an appropriate amount of
time to allow for the development and
implementation of adequate programs.
One questioned whether the permittee
had to be implementing all of its
program within that time, and suggested
that there may be cases where a
permitting authority would need
flexibility to allow more time. One
commenter suggested that five years is
too long and would amount to a
relaxation of implementation in their
area. EPA believes it will take
considerable time to complete the tasks
of initially developing a program,
commencing to implement it, and
achieving results. EPA notes, however,
that full implementation of an
appropriate program must occur as
expeditiously as possible, and not later
than five years.
EPA solicited comment on how an
NOI form might best be formatted to
allow for measurable goal information
(e.g., through the use of check boxes or
narrative descriptions) while taking into
account the Agency’s intention to
facilitate computer tracking. All
commenters supported the development
of a checklist NOI, but most noted that
there would need to be room for
additional information to cover unusual
situations. One noted that, while a
summary of measurable goals might be
reduced to one sheet, attachments that
more fully described the program and
the planned BMPs would be necessary.
EPA agrees that in most cases a
‘‘checklist’’ will not be able to capture
the information on what BMPs a
permittee intends to implement and its
measurable goals for their
implementation. EPA will continue to
consider whether to develop a model
NOI form and make it available for
permitting authorities that choose to use
it. What will be required on an MS4’s
NOI, however, is more extensive than
what is usually required on an NOI, so
a ‘‘form’’ NOI for MS4s may be
impractical.
ii. Individual Permit Application for a
§ 122.34(b) program. In some cases, an
operator of a regulated small MS4s may
seek coverage under an individual
NPDES permit, either because it chooses
to do so or because the NPDES
permitting authority has not made the
general permit option available to that
source. For small MS4s that are to
implement a § 122.34(b) program in
today’s rule, EPA is promulgating
simplified individual permit application
requirements at § 122.33(b)(2)(i). Under
the simplified individual permit
application requirements, the operator
submits an application to the NPDES
permitting authority that includes the
information required under § 122.21(f)
and an estimate of square mileage
served by the small MS4. They are also
required to supply the BMP and
measurable goal information required
under § 122.34(d). Consistent with CWA
section 308 and analogous State law, the
permitting authority could request any
additional information to gain a better
understanding of the system and the
areas draining into the system.
Commenters suggested that the
requirements of § 122.21(f) are not
necessarily applicable to a small MS4.
One suggested that it was not
appropriate to require the following
information: a description of the
activities conducted by the applicant
which require it to obtain an NPDES
permit; the name, mailing address, and
location of the facility; and up to four
Standard Industrial Classification
(‘‘SIC’’) codes which best reflect the
principal products or services provided
by the facility. In response, EPA notes
that the requirements in § 122.21(f) are
generic application requirements
applicable to NPDES applicants. With
the exception of the SIC code
requirement, EPA believes that they are
applicable to MS4s. In the SIC code
portion of the standard application, the
applicant may simply put ‘‘not
applicable.’’
One commenter asked that EPA
clarify whether § 122.21(f)(5)’s
requirement to indicate ‘‘whether the
facility is located on Indian lands,’’
referred to tribal lands, Indian country,
or Indian reservations. For some local
governments this is a complex issue
with no easy ‘‘yes’’ or ‘‘no’’ answer. See
the discussion in the Section II.F in the
proposal to today’s rule regarding what
tribal lands are subject to the federal
trust responsibility for purposes of the
NPDES program.
One commenter suggested that the
application should not have to list the
permits and approvals required under
§ 122.21(f)(6). EPA notes that the
applicant must only list the
environmental permits that the
applicant has received that cover the
small MS4. The applicant is not
required to list permits for other
operations conducted by the small MS4
operator (e.g., for an operation of an
airport or landfill). Again, in most cases
the applicant could respond ‘‘not
applicable’’ to this portion of the
application.
One commenter suggested that the
topographic map requirement of
§ 122.21(f)(7) was completely different
from, and significantly more onerous
than, the mapping requirement outlined
in the proposed rule at § 122.34(b)(3)(i).
EPA agrees and has modified the final
rule to clarify that a map that satisfies
the requirements of § 122.34(b)(3)(i) also
satisfies the map requirements for MS4
applicants seeking individual permits
under § 122.33(b)(2)(i).
EPA is adding a new paragraph to
§ 122.44(k) to clarify that requirements
to implement BMPs developed pursuant
to CWA 402(p) are appropriate permit
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
conditions. While such conditions
could be included under the existing
provision in § 122.44(k)(3) for ‘‘practices
reasonably necessary to achieve effluent
limitations and standards or to carry out
the purposes and intent of the CWA,’’
EPA believes it is clearer to specifically
list in § 122.44(k) BMPs that implement
storm water programs in light of the
frequency with which they are used as
effluent limitations.
iii. Alternative Permit Options/Tenth
Amendment. As an alternative to
implementing a program that addresses
each of the six minimum measures
according to the requirements of
§ 122.34(b), today’s rule provides the
operators of regulated small MS4s with
the option of applying for an individual
permit under existing § 122.26(d). See
§ 122.33(b)(2)(ii). If a system operator
does not want to be held accountable for
implementation of each of the minimum
measures, an individual permit option
under § 122.33(b)(2)(ii) remains
available. (As explained in the next
section of this preamble, § 122.35(b) also
provides an opportunity for relief from
permit obligations for some of the
minimum measures, but that relief
exists within the framework of the
minimum measures.)
EPA originally drafted the individual
permit application requirements in
§ 122.26(d) to apply to medium and
large MS4s. Today’s rule abbreviates the
individual permit application
requirements for small MS4s. Although
EPA believes that the storm water
management program requirements of
§ 122.34, including the minimum
measures, provide the most appropriate
means to control pollutants from most
small MS4s, the Agency does recognize
that the operators of some small MS4s
may prefer more individualized permit
requirements. Among other possible
reasons, an operator may seek to avoid
having to ‘‘regulate’’ third parties
discharging into the separate storm
sewer system. Alternatively, an operator
may determine that structural controls,
such as constructed wetlands, are more
appropriate or effective to address the
discharges that would otherwise be
addressed under the construction and/
or development/redevelopment
measures.
Some MS4s commenters alleged that
an absolute requirement to implement
the minimum measures violates the
Tenth Amendment to the U.S.
Constitution. While EPA disagrees that
requiring MS4s to implement the
minimum measures would violate the
Constitution, today’s rule does provide
small MS4s with the option of
developing more individualized
measures to reduce the pollutants and
pollution associated with urban storm
water that will be regulated under
today’s rule.
Some commenters specifically
objected that § 122.34’s minimum
measures for small MS4s violate the
Tenth Amendment insofar as they
require the operators of MS4s to regulate
third parties. The minimum measures
include requirements for small MS4
operators to prohibit certain non-storm
water discharges, control storm water
discharges from construction greater
than one acre, and take other actions to
control third party sources of storm
water discharges into their MS4s.
Commenters also argued that it was
inappropriate for EPA to require local
governments to enact ordinances that
will consume local revenues and put
local governments in the position of
bearing the political responsibility for
implementing the program. One
commenter argued that EPA was
prohibited from conditioning the
issuance of an NPDES permit upon the
small MS4 operators waiving their
constitutional right to be free from such
requirements to regulate third parties.
The Agency replies to each comment in
turn.
Because the rule does rely on local
governments—who operate municipal
separate storm sewer systems—to
regulate discharges from third parties
into storm sewers, EPA acknowledges
that the rule implicates the Tenth
Amendment and constitutional
principles of federalism. EPA disagrees,
however, that today’s rule is
inconsistent with federalism principles.
[As political subdivisions of States,
municipalities enjoy the same
protections as States under the Tenth
Amendment.]
The Supreme Court has interpreted
the Tenth Amendment to preclude
federal actions that compel States or
their political subdivisions to enact or
administer a federal regulatory program.
See New York v. United States, 505 U.S.
144 (1992); Printz v. United States, 117
S.Ct. 2365 (1997). The Printz case,
however, did acknowledge that the
restriction does not apply when federal
requirements of general applicability—
requirements that regulate all parties
engaging in a particular activity—do not
excessively interfere with the
functioning of State governments when
those requirements are applied to States
(or their political subdivisions). See
Printz, 117 S.Ct. at 2383.
Today’s rule imposes a federal
requirement of general applicability,
namely, the requirement to obtain and
comply with an NPDES permit, on
municipalities that operate a municipal
separate storm sewer system. By virtue
68765
of this rule, the permit will require the
municipality/storm sewer operator to
develop a storm water control program.
The rule specifies the components of the
control program, which are primarily
‘‘management’-type controls, for
example, municipal regulation of third
party storm water discharges associated
with construction, as well as
development and redevelopment, when
those discharges would enter the
municipal system.
Unlike the circumstances reviewed in
the New York and Printz cases, today’s
rule merely applies a generally
applicable requirement (the CWA
permit requirement) to municipal point
sources. The CWA establishes a
generally applicable requirement to
obtain an NPDES permit to authorize
point source discharge to waters of the
United States. Because municipalities
own and operate separate storm sewers,
including storm sewers into which third
parties may discharge pollutants,
NPDES permits may require
municipalities to control the discharge
of pollutants into the storm sewers in
the first instance. Because NPDES
permits can impose end-of-pipe
numeric effluent limits, narrative
effluent limits in the form of
‘‘management’’ program requirements
are also within the scope of Clean Water
Act authority. As noted above, however,
EPA believes that such narrative
limitations are the most appropriate
form of effluent limitation for these
types of permits. For municipal separate
storm sewer permits, CWA section
402(p)(3)(B)(iii) specifically authorizes
‘‘controls to reduce pollutants to the
maximum extent practicable, including
management practices, control
techniques and system, design and
engineering methods, and such other
provisions as the Administrator or the
State determines appropriate for the
control of such pollutants.’’
The Agency did not design the
minimum measures in § 122.34 to
‘‘commandeer’’ state regulatory
mechanisms, but rather to reduce
pollutant discharges from small MS4s.
The permit requirement in CWA section
402 is a requirement of general
applicability. The operator of a small
MS4 that does not prohibit and/or
control discharges into its system
essentially accepts ‘‘title’’ for those
discharges. At a minimum, by providing
free and open access to the MS4s that
convey discharges to the waters of the
United States, the municipal storm
sewer system enables water quality
impairment by third parties. Section
122.34 requires the operator of a
regulated small MS4 to control a third
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68766 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
party only to the extent that the MS4
collection system receives pollutants
from that third party and discharges it
to the waters of the United States. The
operators of regulated small MS4s
cannot passively receive and discharge
pollutants from third parties. The
Agency concedes that administration of
a municipal program will consume
limited local revenues for
implementation; but those
consequences stem from the municipal
operator’s identity as a permitted sewer
system operator. The Tenth Amendment
does not create a blanket municipal
immunity from generally applicable
requirements. Development of a
program based on the minimum
measures and implementation of that
program should not ‘‘excessively
interfere’’ with the functioning of
municipal government, especially given
the ‘‘practicability’’ threshold under
CWA section 402(p)(3)(B)(iii).
As noted above, today’s rule also
allows regulated small MS4s to opt out
of the minimum measures approach.
The individual permit option provides
for greater flexibility in program
implementation and also responds to
the comment about requiring a
municipal permit applicant’s waiver of
any arguable constitutional rights. The
individual permit option responds to
questions about the rule’s alleged
unconstitutionality by more specifically
focusing on the pollutants discharged
from municipal point sources. Today’s
rule gives operators of MS4s the option
to seek an individual permit that varies
from the minimum measures/
management approach that is otherwise
specified in today’s rule. Even if the
minimum measures approach was
constitutionally suspect, a requirement
that standing alone would violate
constitutional principles of federalism
does not raise concerns if the entity
subject to the requirement may opt for
an alternative action that does not raise
a federalism issue.
For municipal system operators who
seek to avoid third party regulation
according to all or some of the
minimum measures, § 122.26(d)
requires the operator to submit a
narrative description of its storm water
sewer system and any existing storm
water control program, as well as the
monitoring data to enable the permit
writer to develop appropriate permit
conditions. The permit writer can then
develop permit conditions and
limitations that vary from the six
minimum measures prescribed in
today’s rule. The information will
enable the permit writer to develop an
NPDES permit that will result in
pollutant reduction to the maximum
extent practicable. See NRDC v. EPA,
966 F.2d at 1308, n17. If determined
appropriate under CWA section
402(p)(3)(B)(iii), for example BMPs to
meet water quality standards, the permit
could also incorporate any more
stringent or prescriptive effluent limits
based on the individual permit
application information.
For small MS4 operators seeking an
individual permit, both Part 1 and Part
2 of the application requirements in
§ 122.26(d)(1) and (2) are required to be
submitted within 3 years and 90 days of
the date of publication of this Federal
Register notice. Some of the information
required in Part 1 will necessarily have
to be developed by the permit applicant
prior to the development of Part 2 of the
application. The permit applicant
should coordinate with its permitting
authority regarding the timing of review
of the information.
The operators of regulated small MS4s
that apply under § 122.26(d) may apply
to implement certain of the § 122.34(b)
minimum control measures, and thereby
focus the necessary evaluation for
additional limitations on alternative
controls to the § 122.34(b) measures that
the small MS4 will not implement. The
permit writer may determine
‘‘equivalency’’ for some or all of the
minimum measures by developing a
rough estimate of the pollutant
reduction that would be achieved if the
MS4 implemented the § 122.34
minimum measure and to incorporate
that pollutant reduction estimate in the
small MS4’s individual permit as an
effluent limitation. The Agency
recognizes that, based on current
information, any such estimates will
probably have a wide range.
Anticipation of this wide range is one of
the reasons EPA believes MS4 operators
need flexibility in determining the mix
of BMPs (under the minimum measures)
to achieve water quality objectives.
Therefore, for example, if a system
operator seeks to employ an alternative
that involves structural controls, wide
ranges will probably be associated with
gross pollutant reduction estimates.
Permit writers will undoubtedly
develop other ways to ensure that
permit limits ensure reduction of
pollutants to the maximum extent
practicable.
Small MS4 operators that pursue this
individual permit option do not need to
submit details about their future
program requirements (e.g., the MS4’s
future plans to obtain legal authority
required by §§ 122.26(d)(1)(ii) and
(d)(2)). A small MS4 operator might
elect to supply such information if it
intends for the permit writer to take
those plans into account when
developing the small MS4’s permit
conditions.
Several operators of small MS4s
commented that they currently lacked
the authority they would need to
implement one or more of the minimum
measures in § 122.34(b). Today’s rule
recognizes that the operators of some
small MS4s might not have the
authority under State law to implement
one or more of the measures using, for
example, an ordinance or other
regulatory mechanism. To address these
situations, each minimum measure in
§ 122.34(b) that would require the small
MS4 operator to develop an ordinance
or other regulatory mechanism states
that the operator is only required to
implement that requirement to ‘‘the
extent allowable under State, Tribal or
local law.’’ See § 122.34(b)(3)(ii) (illicit
discharge elimination), § 122.34(b)(4)(ii)
(construction runoff control) and
§ 122.34(b)(5)(ii) (post-construction
storm water management). This
regulatory language does not mean that
a operator of a small MS4 with
ordinance making authority can simply
fail to pass an ordinance necessary for
a § 122.34(b) program. The reference to
‘‘the extent allowable under * * * local
law’’ refers to the local laws of other
political subdivisions to which the MS4
operator is subject. Rather, a small MS4
operator that seeks to implement a
program under section § 122.34(b) may
omit a requirement to develop an
ordinance or other regulatory
mechanism only to the extent its
municipal charter, State constitution or
other legal authority prevents the
operator from exercising the necessary
authority. Where the operator cannot
obtain the authority to implement any
activity that is only required to ‘‘the
extent allowable under State, Tribal or
local law,’’ the operator may satisfy
today’s rule by administering the
remaining § 122.34(b) requirements.
Finally, although today’s rule
provides operators of small MS4s with
an option of applying for a permit under
§ 122.26(d), States authorized to
administer the NPDES program are not
required to provide this option. NPDESauthorized
States could require all
regulated small MS4s to be permitted
under the minimum measures
management approach in § 122.34 as a
matter of State law. Such an approach
would be deemed to be equally or more
stringent than what is required by
today’s rule. See 40 CFR 123.2(i). The
federalism concerns discussed above do
not apply to requirements imposed by a
State on its political subdivisions.
iv. Satisfaction of Minimum Measure
Obligations by Another Entity. An
operator of a regulated small MS4 may
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
satisfy the requirement to implement
one or more of the six minimum
measures in § 122.34(b) by having a
third party implement the measure or
measures. Today’s rule provides a
variety of means for small MS4
operators to share responsibility for
different aspects of their storm water
management program. The means by
which the operators of various MS4s
share responsibility may affect who is
ultimately responsible for performance
of the minimum measure and who files
the periodic reports on the
implementation of the minimum
measure. Section 122.35 addresses these
issues. The rule describes two different
variants on third party implementation
with different consequences if the third
party fails to implement the measure.
If the permit covering the discharge
from a regulated small MS4 identifies
the operator as the entity responsible for
a particular minimum control measure,
then the operator-permittee remains
responsible for the implementation of
that measure even if another entity has
agreed to implement the control
measure. Section 122.35(a). Another
party may satisfy the operatorpermittee’s
responsibility by
implementing the minimum control
measure in a manner at least as stringent
or prescriptive as the corresponding
NPDES permit requirement. If the third
party fails to do so, the operatorpermittee
remains responsible for its
performance. The operator of the MS4
should consider entering into an
agreement with the third party that
acknowledges the responsibility to
implement the minimum measure. The
operator-permittee’s NOI and its annual
§ 122.34(f)(3) reports submitted to the
NPDES permitting authority must
identify the third party that is satisfying
one or more of the permit obligations.
This requirement ensures that the
permitting authority is aware which
entity is supposed to implement which
minimum measures.
If, on the other hand, the regulated
small MS4’s permit recognizes that an
NPDES permittee other than the
operator-permittee is responsible for a
particular minimum control measure,
then the operator-permittee is relieved
from the responsibility for
implementing that measure. The
operator-permittee is also relieved from
the responsibility for implementing any
measure that the operator’s permit
indicates will be performed by the
NPDES permitting authority. Section
122.35(b). The MS4 operator-permittee
would be responsible for implementing
the remaining minimum measures.
Today’s final rule differs from the
proposed version of § 122.35(b), which
stated that, even if the third party’s
responsibility is recognized in the
permit, the MS4 operator-permittee
remained responsible for performance if
the third party failed to perform the
measure consistent with § 122.34(b).
Under today’s rule, the operatorpermittee
is relieved from responsibility
for performance of a measure if the third
party is an NPDES permittee whose
permit makes it responsible for
performance of the measure (including,
for example, a State agency other than
the State agency that issues NPDES
permits) or if the third party is the
NPDES permitting authority itself.
Because the permitting authority is
acknowledging the third party’s
responsibility in the permit,
commenters thought that the MS4
operator-permittee should not be
responsible for ensuring that the other
entity is implementing the control
measure properly. EPA agrees that the
operator-permittee should not be
conditionally responsible when the
requirements are enforceable against
some other NPDES permittee. If the
third party fails to perform the
minimum measure, the requirements
will be enforceable against the third
party. In addition, the NPDES
permitting authority could reopen the
operator-permittee’s permit under
§ 122.62 and modify the permit to make
the operator responsible for
implementing the measure. A new
paragraph has been added to § 122.62 to
clarify that the permit may be reopened
in such circumstances.
Today’s rule also provides that the
operator-permittee is not conditionally
responsible where it is the State NPDES
permitting authority itself that fails to
implement the measure. The permitting
authority does not need to issue a
permit to itself (i.e., to the same State
agency that issues the permit) for the
sole purpose of relieving the small MS4
from responsibility in the event the
State agency does not satisfy its
obligation to implement a measure. EPA
does not believe that the small MS4
should be responsible in the situation
where the NPDES permit issued to the
small MS4 operator recognizes that the
State agency that issues the permit is
responsible for implementing a
measure. If the State does fail to
implement the measure, the State
agency could be held accountable for its
commitment in the permit to implement
the measure. Where the State does not
fulfill its responsibility to implement a
measure, a citizen also could petition
for withdrawal of the State’s NPDES
program or it could petition to have the
MS4’s permit reopened to require the
68767
MS4 operator to implement the
measure.
EPA notes that not every State
program that addresses erosion and
sediment control from construction sites
will be adequate to satisfy the
requirement that each regulated small
MS4 have a program to the extent
required by § 122.34(b)(4). For example,
although all NPDES States are required
to issue NPDES permits for construction
activity that disturbs greater than one
acre, the State’s NPDES permit program
will not necessarily be extensive enough
to satisfy a regulated small MS4’s
obligation under § 122.34(b)(4). NPDES
States will not necessarily be
implementing all of the required
elements of that minimum measure,
such as procedures for site plan review
in each jurisdiction required to develop
a program and procedures for receipt
and consideration of information
submitted by the public on individual
construction sites. In order for a State
erosion and sediment control program
to satisfy a small MS4 operator’s
obligation to implement § 122.34(b)(4),
the State program would have to
include all of the elements of that
minimum measure.
Where the operator-permittee is itself
performing one or more of the minimum
measures, the operator-permittee
remains responsible for all of the
reporting requirements under
§ 122.34(f)(3). The operator-permittee’s
reports should identify each entity that
is performing the control measures
within the geographic jurisdiction of the
regulated small MS4. If the other entity
also operates a regulated MS4 and files
reports on the progress of
implementation of the measures within
the geographic jurisdiction of the MS4,
then the operator-permittee need not
include that same information in its
own reports.
If the other entity operates a regulated
MS4 and is performing all of the
minimum measures for the permittee,
the permittee is not required to file the
reports required by § 122.34(f)(3). This
relief from reporting is specified in
§ 122.35(a).
Section 122.35 addresses the concerns
of some commenters who sought relief
for governmental facilities that are
classified as small MS4s under today’s
rule. These facilities frequently
discharge storm water through another
regulated MS4 and could be regulated
by that MS4’s program. For example, a
State owned office complex that
operates its storm sewer system in an
urbanized area will be regulated as an
MS4 under today’s rule even though its
system may be subject to the storm
water controls of the municipality in
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68768 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
which it is located. Today’s rule
specifically revised the definition of
MS4 to recognize that different levels of
government often operate MS4s and that
each such separate entity (including the
federal government) should be
responsible for its discharges. If both
MS4s agree, the downstream MS4 can
develop a storm water management
program that regulates the discharge
from both MS4s. The upstream small
MS4 operator still must submit an NOI
that identifies the entity on which the
upstream small MS4 operator is relying
to satisfy its permit obligations. No
reports are required from the upstream
small MS4 operator, but the upstream
operator must remain in compliance
with the downstream MS4 operator’s
storm water management program. This
option allows small MS4s to work
together to develop one storm water
management program that satisfies the
permit obligations of both. If they
cannot agree, the upstream small MS4
operator must develop its own program.
As mentioned previously, comments
from federal facilities and State
organizations that operate MS4s
requested that their permit requirements
differ from those of MS4s that are
political subdivisions of States (cities,
towns, counties, etc.). EPA
acknowledges that there are differences;
e.g., many federal and State facilities do
not serve a resident population and thus
might require a different approach to
public education. EPA believes,
however, that MS4s owned by State and
federal governments can develop storm
water management plans that address
the minimum measures. Federal and
State owned small MS4s may choose to
work with adjacent municipally owned
MS4s to develop a unified plan that
addresses all of the required measures
within the jurisdiction of all of the
contiguous MS4s. The options in
§ 122.35 minimize the burden on small
MS4s that are covered by another MS4’s
program.
One commenter recommended that if
one MS4 discharges into a second MS4,
the operator of the upstream MS4
should have to provide a copy of its NOI
or permit application to the operator of
the receiving MS4. EPA did not adopt
this recommendation because the NOI
and permit application will be publicly
available; but EPA does recommend that
NPDES permitting authorities consider
it as a possible permit requirement. The
commenter also suggested that
monitoring data should be collected by
the upstream MS4 and provided to the
downstream MS4. EPA is not adopting
such a uniform monitoring requirement
because EPA believes it is more
appropriate to let the MS4 operators
work out the need for such data. If
necessary, the downstream MS4s might
want to make such data a condition to
allowing the upstream MS4 to connect
to its system.
v. Joint Permit Programs. Many
commenters supported allowing the
operators of small MS4s to apply as copermittees
so they each would not have
to develop their own storm water
management program. Today’s rule
specifically allows regulated small
MS4s to join with either other small
MS4s regulated under § 122.34(d) or
with medium and large MS4s regulated
under § 122.26(d).
As is discussed in the previous
section, regulated small MS4s may
indicate in their NOIs that another
entity is performing one or more of its
required minimum control measures.
Today’s rule under § 122.33(b)(1) also
specifically allows the operators of
regulated small MS4s to jointly submit
an NOI. The joint NOI must clearly
indicate which entity is required to
implement which control measure in
each geographic jurisdiction within the
service area of the entire small MS4.
The operator of each regulated small
MS4 remains responsible for the
implementation of each minimum
measure for its MS4 (unless, as is
discussed in the previous section above,
the permit recognizes that another entity
is responsible for completing the
measure.) The joint NOI, therefore, is
legally equivalent to each entity
submitting its own NOI. EPA is,
however, revising the rule language to
specifically authorize the joint
submission of NOIs in response to
comments that suggested that such
explicit authorization might encourage
programs to be coordinated on a
watershed basis.
Section 122.33(b)(2)(iii) authorizes
regulated small MS4s to jointly apply
for an individual permit to implement
today’s rule, where allowed by an
NPDES permitting authority. The permit
application should contain sufficient
information to allow the permitting
authority to allocate responsibility
among the parties under one of the two
permitting options in §§ 122.33(b)(2)(i)
and (ii).
Section 122.33(b)(3) of today’s rule
also allows an operator of a regulated
small MS4 to join as a co-permittee in
an existing NPDES permit issued to an
adjoining medium or large MS4 or
source designated under the existing
storm water program. This co-permittee
option applies only with the agreement
of all co-permittees. Under this copermittee
arrangement, the operator of
the regulated small MS4 must comply
with the terms and conditions of the
applicable permit rather than the permit
condition requirements of § 122.34 of
today’s rule. The regulated small MS4
that wishes to be a co-permittee must
comply with the applicable
requirements of § 122.26(d), but would
not be required to fulfill all the permit
application requirements applicable to
medium and large MS4s. Specifically,
the regulated small MS4 is not required
to comply with the application
requirements of § 122.26(d)(1)(iii)
(Part 1 source identification), § 122.26
(d)(1)(iv) (Part 1 discharge
characterization), and § 122.26(d)(2)(iii)
(Part 2 discharge characterization data).
Furthermore, the regulated small MS4
operator could satisfy the requirements
in § 122.26(d)(1)(v) (Part 1 management
programs) and § 122.26(d)(2)(iv) (Part 2
proposed management program) by
referring to the adjoining MS4 operator’s
existing plan. An operator pursuing this
option must describe in the permit
modification request how the adjoining
MS4’s storm water program addresses or
needs to be supplemented in order to
adequately address discharges from the
MS4. The request must also explain the
role of the small MS4 operator in
coordinating local storm water activities
and describe the resources available to
accomplish the storm water
management plan.
EPA sought comments regarding the
appropriateness of the application
requirements in these subsections of
§ 122.26(d). One commenter stated that
newly regulated smaller MS4s should
not be required to meet the existing
regulations’ Part II application
requirements under § 122.26(d)
regarding the control of storm water
discharges from industrial activity. EPA
disagrees. The smaller MS4 operators
designated for regulation in today’s rule
may satisfy this requirement by
referencing the legal authority of the
already regulated MS4 program to the
extent the newly regulated MS4 will
rely on such legal authority to satisfy its
permit requirements. If the smaller MS4
operator plans to rely on its own legal
authorities, it must identify it in the
application. If the smaller MS4 operator
does not elect to use its own legal
authority, they may file an individual
permit application for an alternate
program under § 122.33(b)(2)(ii).
The explanatory language in
§ 122.33(b)(3) recommends that the
smaller MS4s designated under today’s
rule identify how an existing plan
‘‘would need to be supplemented in
order to adequately address your
discharges.’’ One commenter suggested
that this must be regulatory language
and not guidance. EPA disagrees that
this needs to be mandatory language.
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
Since many of the smaller MS4s
designated today are ‘‘donut holes’’
within the geographic jurisdiction of an
already regulated MS4, the larger MS4’s
program generally will be adequate to
address the newly regulated MS4’s
discharges. The small MS4 applicant
should consider the adequacy of the
existing MS4’s program to address the
smaller MS4’s water quality needs, but
EPA is not imposing specific
requirements. Where circumstances
suggest that the existing program is
inadequate with respect to the newly
designated MS4 and the applicant does
not address the issue, the NPDES
permitting authority must require that
the existing program be supplemented.
Commenters recommended that the
application deadline for smaller MS4s
designated today be extended so that
existing regulated MS4s would not have
to modify their permit in the middle of
their permit term, provided that permit
renewal would occur within a
reasonable time (12 to 18 months) of the
deadline. In response, EPA notes that
today’s rule allows operators of newly
designated small MS4s up to three years
and 90 days from the promulgation of
today’s rule to submit an application to
be covered under the permit issued to
an already regulated MS4. The
permitting authority has a reasonable
time after receipt of the application to
modify the existing permit to include
the newly designated source. If an
existing MS4’s permit is up for renewal
in the near future, the operator of a
newly designated small MS4 may take
that into account when timing its
application and the NPDES permitting
authority may take that into account
when processing the application.
Another commenter suggested that
the rule should include a provision to
allow permit application requirements
for smaller MS4s designated today to be
determined by the permitting authority
to account for the particular needs/
wants of an already regulated MS4
operator. EPA does not believe that the
regulations should specifically require
this approach. When negotiating
whether to include a newly designated
MS4 in its program, the already
regulated MS4 operator may require the
newly designated MS4’s operator to
provide any information that is
necessary.
The co-permitting approach allows
small MS4s to take advantage of existing
programs to ease the burden of creating
their own programs. The operators of
regulated small MS4s, however, may
find it simpler to apply for a program
under today’s rule, and to identify the
medium or large MS4 operator that is
implementing portions of its § 122.34(b)
minimum measures.
d. Evaluation and Assessment
Under today’s rule, operators of
regulated small MS4s are required to
evaluate the appropriateness of their
identified BMPs and progress toward
achieving their identified measurable
goals. The purpose of this evaluation is
to determine whether or not the MS4 is
meeting the requirements of the
minimum control measures. The NPDES
permitting authority is responsible for
determining whether and what types of
monitoring needs to be conducted and
may require monitoring in accordance
with State/Tribe monitoring plans
appropriate to the watershed. EPA does
not encourage requirements for ‘‘end-ofpipe’’
monitoring for regulated small
MS4s. Rather, EPA encourages
permitting authorities to carefully
examine existing ambient water quality
and assess data needs. Permitting
authorities should consider a
combination of physical, chemical, and
biological monitoring or the use of other
environmental indicators such as
exceedance frequencies of water quality
standards, impacted dry weather flows,
and increased flooding frequency.
(Claytor, R. and W. Brown. 1996.
Environmental Indicators to Assess
Storm Water Control Programs and
Practices. Center for Watershed
Protection, Silver Spring, MD.) Section
II.L., Water Quality Issues, discusses
monitoring in greater detail.
As recommended by the
Intergovernmental Task Force on
Monitoring Water Quality (ITFM), the
NPDES permitting authority is
encouraged to consider the following
watershed objectives in determining
monitoring requirements: (1) To
characterize water quality and
ecosystem health in a watershed over
time, (2) to determine causes of existing
and future water quality and ecosystem
health problems in a watershed and
develop a watershed management
program, (3) to assess progress of
watershed management program or
effectiveness of pollution prevention
and control practices, and (4) to support
documentation of compliance with
permit conditions and/or water quality
standards. With these objectives in
mind, the Agency encourages
participation in group monitoring
programs that can take advantage of
existing monitoring programs
undertaken by a variety of governmental
and nongovernental entities. Many
States may already have a monitoring
program in effect on a watershed basis.
The ITFM report is included in the
docket for today’s rule
68769
(Intergovernmental Task Force on
Monitoring Water Quality. 1995. The
Strategy for Improving Water-Quality
Monitoring in the United States: Final
Report of the Intergovernmental Task
Force on Monitoring Water Quality.
Copies can be obtained from: U.S.
Geological Survey, Reston, VA.).
EPA expects that many types of
entities will have a role in supporting
group monitoring activities—including
federal agencies, State agencies, the
public, and various classes or categories
of point source dischargers. Some
regulated small MS4s might be required
to contribute to such monitoring efforts.
EPA expects, however, that their
participation in monitoring activities
will be relatively limited. For purposes
of today’s rule, EPA recommends that,
in general, NPDES permits for small
MS4s should not require the conduct of
any additional monitoring beyond
monitoring that the small MS4 may be
already performing. In the second and
subsequent permit terms, EPA expects
that some limited ambient monitoring
might be appropriately required for
perhaps half of the regulated small
MS4s. EPA expects that such
monitoring will only be done in
identified locations for relatively few
pollutants of concern. EPA does not
anticipate ‘‘end-of-pipe’’ monitoring
requirements for regulated small MS4s.
EPA received a wide range of
comments on this section of the rule.
Some commenters believe that EPA
should require monitoring; others want
a strong statement that the newly
regulated small MS4s should not be
required to monitor. Many commenters
raised questions about exactly what EPA
expects MS4s to do to evaluate and
assess their BMPs. EPA has
intentionally written today’s rule to
provide flexibility to both MS4s and
permitting authorities regarding
appropriate evaluation and assessment.
Permitting authorities can specify
monitoring or other means of evaluation
when writing permits. If additional
requirements are not specified, MS4s
can decide what they believe is the most
appropriate way to evaluate their storm
water management program. As
mentioned above, EPA expects that the
necessity for monitoring and its extent
may change from permit cycle to permit
cycle. This is another reason for making
the evaluation and assessment rule
requirements very flexible.
i. Recordkeeping. The NPDES
permitting authority is required to
include at least the minimum
appropriate recordkeeping conditions in
each permit. Additionally, the NPDES
permitting authority can specify that
permittees develop, maintain, and/or
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68770 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
submit other records to determine
compliance with permit conditions. The
MS4 operator must keep these records
for at least 3 years but is not required
to submit records to the NPDES
permitting authority unless specifically
directed to do so. The MS4 operator
must make the records, including the
storm water management program,
available to the public at reasonable
times during regular business hours (see
40 CFR 122.7 for confidentiality
provision). The MS4 operator is also
able to assess a reasonable charge for
copying and to establish advance notice
requirements for members of the public.
EPA received a comment that
questioned EPA’s authority to require
MS4s to make their records available to
the public. EPA disagrees with the
commenter and believes that the CWA
does give EPA the authority to require
that MS4 records be available. It is also
more practical for the public to request
records directly from the MS4 than to
request them from EPA who would then
make the request to the MS4. Based on
comments, EPA revised the proposed
rule so as not to limit the time for
advance notice requirements to 2
business days.
ii. Reporting. Under today’s rule, the
operator of a regulated small MS4 is
required to submit annual reports to the
NPDES permitting authority for the first
permit term. For subsequent permit
terms, the MS4 operator must submit
reports in years 2 and 4 unless the
NPDES permitting authority requires
more frequent reports. EPA received
several comments supporting this
timing for report submittal. Other
commenters suggested that annual
reports during the first permit cycle are
too burdensome and not necessary. EPA
believes that annual reports are needed
during the first 5-year permit term to
help permitting authorities track and
assess the development of MS4
programs, which should be established
by the end of the initial term.
Information contained in these reports
can also be used to respond to public
inquiries.
The report must include (1) the status
of compliance with permit conditions,
an assessment of the appropriateness of
identified BMPs and progress toward
achieving measurable goals for each of
the minimum control measures, (2)
results of information collected and
analyzed, including monitoring data, if
any, during the reporting period, (3) a
summary of what storm water activities
the permittee plans to undertake during
the next reporting cycle, and (4) a
change in any identified measurable
goal(s) that apply to the program
elements.
The NPDES permitting authority is
encouraged to provide a brief two-page
reporting format to facilitate compiling
and analyzing the data from submitted
reports. EPA does not believe that
submittal of a brief annual report of this
nature is overly burdensome, and has
not changed the required reporting time
frame from the proposal. The permitting
authority will use the reports in
evaluating compliance with permit
conditions and, where necessary, will
modify the permit conditions to address
changed conditions.
iii. Permit-As-A-Shield. Section
122.36 describes the scope of
authorization (i.e. ‘‘permit-as-a-shield’’)
under an NPDES permit as provided by
section 402(k) of the CWA. Section
402(k) provides that compliance with an
NPDES permit is deemed compliance,
for purposes of enforcement under CWA
sections 309 and 505, with CWA
sections 301, 302, 306, 307, and 403,
except for any standard imposed under
section 307 for toxic pollutants
injurious to human health.
EPA’s Policy Statement on Scope of
Discharge Authorization and Shield
Associated with NPDES Permits,
originally issued on July 1, 1994, and
revised on April 11, 1995, provides
additional information on this matter.
e. Other Applicable NPDES
Requirements
Any NPDES permit issued to an
operator of a regulated small MS4 must
also include other applicable NPDES
permit requirements and standard
conditions, specifically the applicable
requirements and conditions at 40 CFR
122.41 through 122.49. Reporting
requirements for regulated small MS4s
are governed by § 122.34 and not the
existing requirements for medium and
large MS4s at § 122.42(c). In addition,
the NPDES permitting authority is
encouraged to consult the Interim
Permitting Approach, issued on August
1, 1996. The discussion on the Interim
Permitting Approach in Section II.L.1,
Water Quality Based Effluent Limits,
provides more information. The
provisions of §§ 122.41 through 122.49
establish permit conditions and
limitations that are broadly applicable
to the entire range of NPDES permits.
These provisions should be interpreted
in a manner that is consistent with
provisions that address specific classes
or categories of discharges. For example,
§ 122.44(d) is a general requirement that
each NPDES permit shall include
conditions to meet water quality
standards. This requirement will be met
by the specific approach outlined in
today’s rule for the implementation of
BMPs. BMPs are the most appropriate
form of effluent limitations to satisfy
technology requirements and water
quality-based requirements in MS4
permits (see the introduction to Section
II.H.3, Municipal Permit Requirements,
Section II.H.3.h, Reevaluation of Rule,
and the discussion of the Interim
Permitting Policy in Section II.L.1.
below).
f. Enforceability
NPDES permits are federally
enforceable. Violators may be subject to
the enforcement actions and penalties
described in CWA sections 309, 504,
and 505 or under similar water
pollution enforcement provisions of
State, tribal or local law. Compliance
with a permit issued pursuant to section
402 of the Clean Water Act is deemed
compliance, for purposes of sections
309 and 505, with sections 301, 302,
306, 307, and 403 (except any standard
imposed under section 307 for toxic
pollutants injurious to human health).
g. Deadlines
Today’s final rule includes
‘‘expeditious deadlines’’ as directed by
CWA section 402(p)(6). In proposed
§ 122.26(e), the permit application for
the ‘‘ISTEA’’ facilities was maintained
as August 7, 2001 and the permit
application deadline for storm water
discharges associated with other
construction activity was established as
3 years and 90 days from the final rule
date. In proposed § 122.33(c)(1),
operators of regulated small MS4s were
required to seek permit coverage within
3 years and 90 days from the date of
publication of the final rule. In
proposed § 122.33(c)(2), operators of
regulated small MS4s designated by the
NPDES permitting authority on a local
basis under § 122.32(a)(2) must seek
coverage under an NPDES permit within
60 days of notice, unless the NPDES
permitting authority specifies a later
date.
In order to increase the clarity of
today’s final rule, EPA has changed the
location of some of the above
requirements. All application deadlines
for both Phase I and Phase II are now
listed or referenced in § 122.26(e).
Section 122.26(e)(1) contains the
deadlines for storm water associated
with industrial activity. Paragraph (i)
has been changed to correct a
typographical error. Paragraph (ii) has
been revised to reflect the changed
application date for ‘‘ISTEA’’ facilities.
(See discussion in section I.3, ISTEA
Sources). The application deadline for
storm water discharges associated with
other construction activity is now in a
new § 122.26(e)(8). The application
deadline for regulated small MS4s
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
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MO Frontenac city
MO Galena township
MO Gallatin township
MO Gladstone city
MO Glen Echo Park village
MO Glenaire village
MO Glendale city
MO Grandview city
MO Grantwood Village town
MO Gravois township
MO Greendale city
MO Greene County
MO Hadley township
MO Hanley Hills village
MO Harvester township
MO Hazelwood city
MO High Ridge township
MO Hillsdale village
MO Houston Lake city
MO Huntleigh city
MO Imperial township
MO Iron Gates village
MO Jackson County
MO Jasper County
MO Jefferson County
MO Jefferson township
MO Jennings city
MO Joplin city
MO Joplin township
MO Kickapoo township
MO Kimmswick city
MO Kinloch city
MO Kirkwood city
MO Ladue city
MO Lake St. Louis city
MO Lake Tapawingo city
MO Lake Waukomis city
MO Lakeshire city
MO Leawood village
MO Lee’s Summit city
MO Lemay township
MO Lewis and Clark township
MO Liberty city
MO Liberty township
MO Mac Kenzie village
MO Manchester city
MO Maplewood city
MO Marlborough village
MO Maryland Heights city
MO May township
MO Meramec township
MO Midland township
MO Mineral township
MO Missouri River township
MO Missouri township
MO Moline Acres city
MO Mount Pleasant township
MO Newton County
MO Normandy city
MO Normandy township
MO North Campbell No. 1 township
MO North Campbell No. 2 township
MO North Campbell No. 3 township
MO North Kansas City city
MO North View township
MO Northmoor city
MO Northwest township
MO Northwoods city
MO Norwood Court town
MO Oakland city
MO Oakland Park village
MO Oaks village
MO Oakview village
MO Oakwood Park village
MO Oakwood village
MO O’Fallon city
MO O’Fallon township
MO Olivette city
MO Overland city
MO Pagedale city
MO Parkdale town
MO Parkville city
MO Pasadena Hills city
MO Pasadena Park village
MO Pettis township
MO Pine Lawn city
MO Platte County
MO Platte township
MO Platte Woods city
MO Pleasant Valley city
MO Prairie township
MO Queeny township
MO Randolph village
MO Raymore city
MO Raymore township
MO Raytown city
MO Redings Mill village
MO Richmond Heights city
MO Rivers township
MO Riverside city
MO Riverview village
MO Rock Hill city
MO Rock township
MO Rocky Fork township
MO Saginaw village
MO Shoal Creek Drive village
MO Shoal Creek township
MO Shrewsbury city
MO Silver Creek village
MO Sioux township
MO Sni-A-Bar township
MO Spanish Lake township
MO Spencer Creek township
MO St. Ann city
MO St. Charles city
MO St. Ferdinand township
MO St. George city
MO St. John city
MO St. Joseph city
MO St. Louis city
MO St. Peters city
MO St. Peters township
MO Sugar Creek city
MO Sunset Hills city
MO Sycamore Hills village
MO Town and Country city
MO Twin Groves township
MO Twin Oaks village
MO Unity Village village
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68822 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
MO University City city
MO Uplands Park village
MO Valley Park city
MO Velda Village city
MO Velda Village Hills village
MO Vinita Park city
MO Vinita Terrace village
MO Warson Woods city
MO Washington township
MO Wayne township
MO Weatherby Lake city
MO Webb City city
MO Webster Groves city
MO Wellston city
MO Wentzville township
MO Westwood village
MO Wilbur Park village
MO Wilson township
MO Winchester city
MO Windsor township
MO Woodson Terrace city
MO Zumbehl township
MS Bay St. Louis city
MS Biloxi city
MS Brandon city
MS Clinton city
MS DeSoto County
MS D’Iberville city
MS Flowood town
MS Forrest County
MS Gautier city
MS Gulfport city
MS Hancock County
MS Harrison County
MS Hattiesburg city
MS Hinds County
MS Horn Lake city
MS Jackson County
MS Lamar County
MS Long Beach city
MS Madison city
MS Madison County
MS Moss Point city
MS Ocean Springs city
MS Pascagoula city
MS Pass Christian city
MS Pearl city
MS Petal city
MS Rankin County
MS Richland city
MS Ridgeland city
MS Southaven city
MS Waveland city
MT Billings city
MT Cascade County
MT Great Falls city
MT Missoula city
MT Missoula County
MT Yellowstone County
NC Alamance County
NC Apex town
NC Archdale city
NC Asheville city
NC Belmont city
NC Belville town
NC Bessemer City city
NC Biltmore Forest town
NC Black Mountain town
NC Brookford town
NC Brunswick County
NC Buncombe County
NC Burke County
NC Burlington city
NC Cabarrus County
NC Carrboro town
NC Cary town
NC Catawba County
NC Chapel Hill town
NC China Grove town
NC Clemmons village
NC Concord city
NC Conover city
NC Cramerton town
NC Dallas town
NC Davidson County
NC Durham County
NC Edgecombe County
NC Elon College town
NC Fletcher town
NC Forsyth County
NC Garner town
NC Gaston County
NC Gastonia city
NC Gibsonville town
NC Goldsboro city
NC Graham city
NC Greenville city
NC Guilford County
NC Harnett County
NC Haw River town
NC Henderson County
NC Hickory city
NC High Point city
NC Hildebran town
NC Hope Mills town
NC Indian Trail town
NC Jacksonville city
NC Jamestown town
NC Kannapolis city
NC Landis town
NC Leland town
NC Long View town
NC Lowell city
NC Matthews town
NC McAdenville town
NC Mebane city
NC Mecklenburg County
NC Mint Hill town
NC Montreat town
NC Mount Holly city
NC Nash County
NC New Hanover County
NC Newton city
NC Onslow County
NC Orange County
NC Pineville town
NC Pitt County
NC Randolph County
NC Ranlo town
NC Rocky Mount city
NC Rowan County
NC Rural Hall town
NC Spring Lake town
NC Stallings town
NC Thomasville city
NC Union County
NC Wake County
NC Walkertown town
NC Wayne County
NC Weaverville town
NC Wilmington city
NC Winterville town
NC Woodfin town
NC Wrightsville Beach town
ND Barnes township
ND Bismarck city
ND Bismarck unorg.
ND Burleigh County
ND Captain’s Landing township
ND Cass County
ND Fargo city
ND Grand Forks city
ND Grand Forks County
ND Grand Forks township
ND Hay Creek township
ND Lincoln city
ND Mandan city
ND Mandan unorg.
ND Morton County
ND Reed township
ND West Fargo city
NE Bellevue city
NE Bellevue No. 2 precinct
NE Benson precinct
NE Boys Town village
NE Chicago precinct
NE Covington precinct
NE Dakota County
NE Douglas County
NE Douglas precinct
NE Florence precinct
NE Garfield precinct
NE Gilmore No. 1 precinct
NE Gilmore No. 2 precinct
NE Gilmore No. 3 precinct
NE Grant precinct
NE Highland No. 1 precinct
NE Highland No. 2 precinct
NE Jefferson precinct
NE La Platte precinct
NE La Vista city
NE Lancaster County
NE Lancaster precinct
NE McArdle precinct
NE Millard precinct
NE Papillion city
NE Papillion No. 2 precinct
NE Pawnee precinct
NE Ralston city
NE Richland No. 1 precinct
NE Richland No. 2 precinct
NE Richland No. 3 precinct
NE Sarpy County
NE South Sioux City city
NE Union precinct
NE Yankee Hill precinct
NH Amherst town
NH Auburn town
NH Bedford town
NH Dover city
NH Durham town
NH Goffstown town
NH Hillsborough County
NH Hollis town
NH Hooksett town
NH Hudson town
NH Litchfield town
NH Londonderry town
NH Madbury town
NH Manchester city
NH Merrimack County
NH Merrimack town
NH Nashua city
NH New Castle town
NH Newington town
NH Pelham town
NH Plaistow town
NH Portsmouth city
NH Rochester city
NH Rockingham County
NH Rollinsford town
NH Rye town
NH Salem town
NH Somersworth city
NH Strafford County
NH Windham town
NJ Aberdeen township
NJ Absecon city
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
NJ Allendale borough
NJ Allenhurst borough
NJ Alpha borough
NJ Alpine borough
NJ Asbury Park city
NJ Atlantic City city
NJ Atlantic County
NJ Atlantic Highlands borough
NJ Audubon borough
NJ Audubon Park borough
NJ Avon-by-the-Sea borough
NJ Barrington borough
NJ Bay Head borough
NJ Bayonne city
NJ Beachwood borough
NJ Bedminster township
NJ Belleville township
NJ Bellmawr borough
NJ Belmar borough
NJ Bergenfield borough
NJ Berkeley Heights township
NJ Berkeley township
NJ Berlin borough
NJ Berlin township
NJ Bernards township
NJ Bernardsville borough
NJ Beverly city
NJ Bloomfield township
NJ Bloomingdale borough
NJ Bogota borough
NJ Boonton town
NJ Boonton township
NJ Bordentown city
NJ Bordentown township
NJ Bound Brook borough
NJ Bradley Beach borough
NJ Branchburg township
NJ Brick township
NJ Bridgewater township
NJ Brielle borough
NJ Brigantine city
NJ Brooklawn borough
NJ Buena borough
NJ Buena Vista township
NJ Burlington city
NJ Burlington County
NJ Burlington township
NJ Butler borough
NJ Byram township
NJ Caldwell Borough township
NJ Camden city
NJ Cape May County
NJ Carlstadt borough
NJ Carneys Point township
NJ Carteret borough
NJ Cedar Grove township
NJ Chatham borough
NJ Chatham township
NJ Cherry Hill township
NJ Chesilhurst borough
NJ Chester township
NJ Chesterfield township
NJ Cinnaminson township
NJ City of Orange township
NJ Clark township
NJ Clayton borough
NJ Clementon borough
NJ Cliffside Park borough
NJ Clifton city
NJ Closter borough
NJ Collingswood borough
NJ Colts Neck township
NJ Commercial township
NJ Cranford township
NJ Cresskill borough
NJ Cumberland County
NJ Deal borough
NJ Delanco township
NJ Delran township
NJ Demarest borough
NJ Denville township
NJ Deptford township
NJ Dover town
NJ Dover township
NJ Dumont borough
NJ Dunellen borough
NJ East Brunswick township
NJ East Greenwich township
NJ East Hanover township
NJ East Newark borough
NJ East Orange city
NJ East Rutherford borough
NJ Eastampton township
NJ Eatontown borough
NJ Edgewater borough
NJ Edgewater Park township
NJ Edison township
NJ Egg Harbor township
NJ Elizabeth city
NJ Elk township
NJ Elmwood Park borough
NJ Emerson borough
NJ Englewood city
NJ Englewood Cliffs borough
NJ Englishtown borough
NJ Essex Fells township
NJ Evesham township
NJ Ewing township
NJ Fair Haven borough
NJ Fair Lawn borough
NJ Fairfield township
NJ Fairview borough
NJ Fanwood borough
NJ Fieldsboro borough
NJ Florence township
NJ Florham Park borough
NJ Fort Lee borough
NJ Franklin Lakes borough
NJ Franklin township
NJ Freehold borough
NJ Freehold township
NJ Galloway township
NJ Garfield city
NJ Garwood borough
NJ Gibbsboro borough
NJ Glassboro borough
NJ Glen Ridge Borough township
NJ Glen Rock borough
NJ Gloucester City city
NJ Gloucester County
NJ Gloucester township
NJ Green Brook township
NJ Greenwich township
NJ Guttenberg town
NJ Hackensack city
NJ Haddon Heights borough
NJ Haddon township
NJ Haddonfield borough
NJ Hainesport township
NJ Haledon borough
NJ Hamilton township
NJ Hanover township
NJ Harding township
NJ Harrington Park borough
NJ Harrison town
NJ Hasbrouck Heights borough
NJ Haworth borough
NJ Hawthorne borough
NJ Hazlet township
NJ Helmetta borough
NJ Highland Park borough
NJ Highlands borough
NJ Hillsborough township
NJ Hillsdale borough
NJ Hillside township
NJ Hi-Nella borough
NJ Hoboken city
NJ Ho-Ho-Kus borough
NJ Holmdel township
NJ Hopatcong borough
NJ Hopewell township
NJ Howell township
NJ Hunterdon County
NJ Interlaken borough
NJ Irvington township
NJ Island Heights borough
NJ Jackson township
NJ Jamesburg borough
NJ Jefferson township
NJ Jersey City city
NJ Keansburg borough
NJ Kearny town
NJ Kenilworth borough
NJ Keyport borough
NJ Kinnelon borough
NJ Lakehurst borough
NJ Lakewood township
NJ Laurel Springs borough
NJ Lavallette borough
NJ Lawnside borough
NJ Lawrence township
NJ Leonia borough
NJ Lincoln Park borough
NJ Linden city
NJ Lindenwold borough
NJ Linwood city
NJ Little Falls township
NJ Little Ferry borough
NJ Little Silver borough
NJ Livingston township
NJ Loch Arbour village
NJ Lodi borough
NJ Long Branch city
NJ Longport borough
NJ Lopatcong township
NJ Lumberton township
NJ Lyndhurst township
NJ Madison borough
NJ Magnolia borough
NJ Mahwah township
NJ Manalapan township
NJ Manasquan borough
NJ Manchester township
NJ Mantoloking borough
NJ Mantua township
NJ Manville borough
NJ Maple Shade township
NJ Maplewood township
NJ Margate City city
NJ Marlboro township
NJ Matawan borough
NJ Maywood borough
NJ Medford Lakes borough
NJ Medford township
NJ Mendham borough
NJ Mendham township
NJ Mercer County
NJ Merchantville borough
NJ Metuchen borough
NJ Middlesex borough
NJ Middlesex County
NJ Middletown township
NJ Midland Park borough
NJ Millburn township
NJ Millstone borough
NJ Milltown borough
NJ Millville city
NJ Mine Hill township
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68823

68824 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
NJ Monmouth Beach borough
NJ Monmouth County
NJ Monroe township
NJ Montclair township
NJ Montvale borough
NJ Montville township
NJ Moonachie borough
NJ Moorestown township
NJ Morris County
NJ Morris Plains borough
NJ Morris township
NJ Morristown town
NJ Mount Arlington borough
NJ Mount Ephraim borough
NJ Mount Holly township
NJ Mount Laurel township
NJ Mount Olive township
NJ Mountain Lakes borough
NJ Mountainside borough
NJ National Park borough
NJ Neptune City borough
NJ Neptune township
NJ Netcong borough
NJ New Brunswick city
NJ New Milford borough
NJ New Providence borough
NJ Newark city
NJ Newfield borough
NJ North Arlington borough
NJ North Bergen township
NJ North Brunswick township
NJ North Caldwell township
NJ North Haledon borough
NJ North Plainfield borough
NJ Northfield city
NJ Northvale borough
NJ Norwood borough
NJ Nutley township
NJ Oakland borough
NJ Oaklyn borough
NJ Ocean City city
NJ Ocean County
NJ Ocean Gate borough
NJ Ocean township
NJ Oceanport borough
NJ Old Bridge township
NJ Old Tappan borough
NJ Oradell borough
NJ Palisades Park borough
NJ Palmyra borough
NJ Paramus borough
NJ Park Ridge borough
NJ Parsippany-Troy Hills township
NJ Passaic city
NJ Passaic County
NJ Passaic township
NJ Paterson city
NJ Paulsboro borough
NJ Pennington borough
NJ Penns Grove borough
NJ Pennsauken township
NJ Pennsville township
NJ Pequannock township
NJ Perth Amboy city
NJ Phillipsburg town
NJ Pine Beach borough
NJ Pine Hill borough
NJ Pine Valley borough
NJ Piscataway township
NJ Pitman borough
NJ Pittsgrove township
NJ Plainfield city
NJ Pleasantville city
NJ Pohatcong township
NJ Point Pleasant Beach borough
NJ Point Pleasant borough
NJ Pompton Lakes borough
NJ Prospect Park borough
NJ Rahway city
NJ Ramsey borough
NJ Randolph township
NJ Raritan borough
NJ Readington township
NJ Red Bank borough
NJ Ridgefield borough
NJ Ridgefield Park village
NJ Ridgewood village
NJ Ringwood borough
NJ River Edge borough
NJ River Vale township
NJ Riverdale borough
NJ Riverside township
NJ Riverton borough
NJ Rochelle Park township
NJ Rockaway borough
NJ Rockaway township
NJ Rockleigh borough
NJ Roseland borough
NJ Roselle borough
NJ Roselle Park borough
NJ Roxbury township
NJ Rumson borough
NJ Runnemede borough
NJ Rutherford borough
NJ Saddle Brook township
NJ Saddle River borough
NJ Salem County
NJ Sayreville borough
NJ Scotch Plains township
NJ Sea Bright borough
NJ Sea Girt borough
NJ Seaside Heights borough
NJ Seaside Park borough
NJ Secaucus town
NJ Shamong township
NJ Shrewsbury borough
NJ Shrewsbury township
NJ Somerdale borough
NJ Somers Point city
NJ Somerset County
NJ Somerville borough
NJ South Amboy city
NJ South Belmar borough
NJ South Bound Brook borough
NJ South Brunswick township
NJ South Hackensack township
NJ South Orange Village township
NJ South Plainfield borough
NJ South River borough
NJ South Toms River borough
NJ Spotswood borough
NJ Spring Lake borough
NJ Spring Lake Heights borough
NJ Springfield township
NJ Stanhope borough
NJ Stratford borough
NJ Summit city
NJ Sussex County
NJ Tabernacle township
NJ Tavistock borough
NJ Teaneck township
NJ Tenafly borough
NJ Teterboro borough
NJ Tinton Falls borough
NJ Totowa borough
NJ Trenton city
NJ Union Beach borough
NJ Union City city
NJ Union township
NJ Upper Saddle River borough
NJ Upper township
NJ Ventnor City city
NJ Verona township
NJ Victory Gardens borough
NJ Vineland city
NJ Voorhees township
NJ Waldwick borough
NJ Wall township
NJ Wallington borough
NJ Wanaque borough
NJ Warren County
NJ Warren township
NJ Washington township
NJ Watchung borough
NJ Waterford township
NJ Wayne township
NJ Weehawken township
NJ Wenonah borough
NJ West Caldwell township
NJ West Deptford township
NJ West Long Branch borough
NJ West New York town
NJ West Orange township
NJ West Paterson borough
NJ Westampton township
NJ Westfield town
NJ Westville borough
NJ Westwood borough
NJ Wharton borough
NJ Willingboro township
NJ Winfield township
NJ Winslow township
NJ Woodbridge township
NJ Woodbury city
NJ Woodbury Heights borough
NJ Woodcliff Lake borough
NJ Woodlynne borough
NJ Wood-Ridge borough
NJ Wyckoff township
NM Bernalillo County
NM Corrales village
NM Dona Ana County
NM Las Cruces city
NM Los Ranchos de Albuquerque village
NM Mesilla town
NM Rio Rancho city
NM Sandoval County
NM Santa Fe city
NM Santa Fe County
NM Sunland Park city
NY Albany city
NY Albany County
NY Amherst town
NY Amityville village
NY Ardsley village
NY Ashland town
NY Atlantic Beach village
NY Babylon town
NY Babylon village
NY Baldwinsville village
NY Ballston town
NY Barker town
NY Baxter Estates village
NY Bayville village
NY Beacon city
NY Bedford town
NY Belle Terre village
NY Bellerose village
NY Bellport village
NY Bethlehem town
NY Big Flats town
NY Binghamton city
NY Binghamton town
NY Blasdell village
NY Boston town
NY Briarcliff Manor village
NY Brighton town
NY Brightwaters village
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
NY Bronxville village
NY Brookhaven town
NY Brookville village
NY Broome County
NY Brunswick town
NY Buchanan village
NY Buffalo city
NY Camillus town
NY Camillus village
NY Carmel town
NY Cayuga Heights village
NY Cedarhurst village
NY Charlton town
NY Cheektowaga town
NY Chemung County
NY Chenango town
NY Chestnut Ridge village
NY Chili town
NY Cicero town
NY Clarence town
NY Clarkstown town
NY Clay town
NY Clayville village
NY Clifton Park town
NY Clinton village
NY Cohoes city
NY Colonie town
NY Colonie village
NY Conklin town
NY Cornwall on Hudson village
NY Cornwall town
NY Cortlandt town
NY Croton-on-Hudson village
NY De Witt town
NY Deerfield town
NY Depew village
NY Dickinson town
NY Dobbs Ferry village
NY Dryden town
NY Dutchess County
NY East Fishkill town
NY East Greenbush town
NY East Hills village
NY East Rochester village
NY East Rockaway village
NY East Syracuse village
NY East Williston village
NY Eastchester town
NY Elma town
NY Elmira city
NY Elmira Heights village
NY Elmira town
NY Elmsford village
NY Endicott village
NY Erie County
NY Evans town
NY Fairport village
NY Farmingdale village
NY Fayetteville village
NY Fenton town
NY Fishkill town
NY Fishkill village
NY Floral Park village
NY Flower Hill village
NY Floyd town
NY Fort Edward town
NY Fort Edward village
NY Frankfort town
NY Freeport village
NY Garden City village
NY Gates town
NY Geddes town
NY Glen Cove city
NY Glens Falls city
NY Glenville town
NY Grand Island town
NY Grand View-on-Hudson village
NY Great Neck Estates village
NY Great Neck Plaza village
NY Great Neck village
NY Greece town
NY Green Island village
NY Greenburgh town
NY Guilderland town
NY Halfmoon town
NY Hamburg town
NY Hamburg village
NY Harrison village
NY Hastings-on-Hudson village
NY Haverstraw town
NY Haverstraw village
NY Hempstead town
NY Hempstead village
NY Henrietta town
NY Herkimer County
NY Hewlett Bay Park village
NY Hewlett Harbor village
NY Hewlett Neck village
NY Hillburn village
NY Horseheads town
NY Horseheads village
NY Hudson Falls village
NY Huntington Bay village
NY Huntington town
NY Hyde Park town
NY Irondequoit town
NY Irvington village
NY Island Park village
NY Islandia village
NY Islip town
NY Ithaca city
NY Ithaca town
NY Johnson City village
NY Kenmore village
NY Kensington village
NY Kent town
NY Kings Point village
NY Kingsbury town
NY Kirkland town
NY Kirkwood town
NY La Grange town
NY Lackawanna city
NY LaFayette town
NY Lake Grove village
NY Lake Success village
NY Lancaster town
NY Lancaster village
NY Lansing town
NY Lansing village
NY Larchmont village
NY Lattingtown village
NY Lawrence village
NY Lee town
NY Lewiston town
NY Lewiston village
NY Lindenhurst village
NY Liverpool village
NY Lloyd Harbor village
NY Lloyd town
NY Long Beach city
NY Lynbrook village
NY Lysander town
NY Malta town
NY Malverne village
NY Mamaroneck town
NY Mamaroneck village
NY Manlius town
NY Manlius village
NY Manorhaven village
NY Marcy town
NY Massapequa Park village
NY Matinecock village
NY Menands village
NY Mill Neck village
NY Mineola village
NY Minoa village
NY Monroe County
NY Montebello village
NY Montgomery town
NY Moreau town
NY Mount Kisco village
NY Mount Pleasant town
NY Mount Vernon city
NY Munsey Park village
NY Muttontown village
NY New Castle town
NY New Hartford town
NY New Hartford village
NY New Hempstead village
NY New Hyde Park village
NY New Rochelle city
NY New Square village
NY New Windsor town
NY New York Mills village
NY Newburgh city
NY Newburgh town
NY Niagara County
NY Niagara Falls city
NY Niagara town
NY Niskayuna town
NY North Castle town
NY North Greenbush town
NY North Hempstead town
NY North Hills village
NY North Syracuse village
NY North Tarrytown village
NY North Tonawanda city
NY Northport village
NY Nyack village
NY Ogden town
NY Old Brookville village
NY Old Westbury village
NY Oneida County
NY Onondaga County
NY Onondaga town
NY Orange County
NY Orangetown town
NY Orchard Park town
NY Orchard Park village
NY Oriskany village
NY Ossining town
NY Ossining village
NY Oswego County
NY Owego town
NY Oyster Bay town
NY Paris town
NY Patchogue village
NY Patterson town
NY Peekskill city
NY Pelham Manor village
NY Pelham town
NY Pelham village
NY Pendleton town
NY Penfield town
NY Perinton town
NY Philipstown town
NY Phoenix village
NY Piermont village
NY Pittsford town
NY Pittsford village
NY Plandome Heights village
NY Plandome Manor village
NY Plandome village
NY Pleasant Valley town
NY Pleasantville village
NY Poestenkill town
NY Pomona village
NY Poospatuck Reservation
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68825

68826 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
NY Poquott village
NY Port Chester village
NY Port Dickinson village
NY Port Jefferson village
NY Port Washington North village
NY Poughkeepsie city
NY Poughkeepsie town
NY Pound Ridge town
NY Putnam County
NY Putnam Valley town
NY Queensbury town
NY Ramapo town
NY Rensselaer city
NY Rensselaer County
NY Riverhead town
NY Rochester city
NY Rockville Centre village
NY Rome city
NY Roslyn Estates village
NY Roslyn Harbor village
NY Roslyn village
NY Rotterdam town
NY Russell Gardens village
NY Rye Brook village
NY Rye city
NY Rye town
NY Saddle Rock village
NY Salina town
NY Sands Point village
NY Saratoga County
NY Scarsdale town
NY Scarsdale village
NY Schaghticoke town
NY Schenectady city
NY Schenectady County
NY Schodack town
NY Schroeppel town
NY Schuyler town
NY Scotia village
NY Sea Cliff village
NY Shoreham village
NY Sloan village
NY Sloatsburg village
NY Smithtown town
NY Solvay village
NY Somers town
NY South Floral Park village
NY South Glens Falls village
NY South Nyack village
NY Southampton town
NY Southport town
NY Spencerport village
NY Spring Valley village
NY Stewart Manor village
NY Stony Point town
NY Suffern village
NY Suffolk County
NY Syracuse city
NY Tarrytown village
NY Thomaston village
NY Tioga County
NY Tompkins County
NY Tonawanda city
NY Tonawanda town
NY Troy city
NY Tuckahoe village
NY Ulster County
NY Union town
NY Upper Brookville village
NY Upper Nyack village
NY Utica city
NY Valley Stream village
NY Van Buren town
NY Vestal town
NY Veteran town
NY Village of the Branch village
NY Wappinger town
NY Wappingers Falls village
NY Warren County
NY Washington County
NY Waterford town
NY Waterford village
NY Watervliet city
NY Webster town
NY Webster village
NY Wesley Hills village
NY West Haverstraw village
NY West Seneca town
NY Westbury village
NY Westchester County
NY Western town
NY Wheatfield town
NY White Plains city
NY Whitesboro village
NY Whitestown town
NY Williamsville village
NY Williston Park village
NY Woodsburgh village
NY Yonkers city
NY Yorktown town
NY Yorkville village
OH Addyston village
OH Allen County
OH Allen township
OH Amberley village
OH Amelia village
OH American township
OH Amherst city
OH Amherst township
OH Anderson township
OH Arlington Heights village
OH Auglaize County
OH Aurora city
OH Austintown township
OH Avon city
OH Avon Lake city
OH Bainbridge township
OH Barberton city
OH Batavia township
OH Bath township
OH Bay Village city
OH Beachwood city
OH Beaver township
OH Beavercreek city
OH Beavercreek township
OH Bedford city
OH Bedford Heights city
OH Bellaire city
OH Bellbrook city
OH Belmont County
OH Belpre city
OH Belpre township
OH Bentleyville village
OH Berea city
OH Bethel township
OH Bexley city
OH Blendon township
OH Blue Ash city
OH Boardman township
OH Brady Lake village
OH Bratenahl village
OH Brecksville city
OH Brice village
OH Bridgeport village
OH Brilliant village
OH Brimfield township
OH Broadview Heights city
OH Brook Park city
OH Brookfield township
OH Brooklyn city
OH Brooklyn Heights village
OH Brookside village
OH Brown township
OH Brownhelm township
OH Brunswick city
OH Brunswick Hills township
OH Butler County
OH Butler township
OH Campbell city
OH Canfield city
OH Canfield township
OH Canton city
OH Canton township
OH Carlisle township
OH Carlisle village
OH Centerville city
OH Chagrin Falls township
OH Chagrin Falls village
OH Champion township
OH Chesapeake village
OH Cheviot city
OH Chippewa township
OH Cincinnati city
OH Clark County
OH Clear Creek township
OH Clermont County
OH Cleveland city
OH Cleveland Heights city
OH Cleves village
OH Clinton township
OH Coal Grove village
OH Coitsville township
OH Colerain township
OH Columbia township
OH Concord township
OH Copley township
OH Coventry township
OH Cridersville village
OH Cross Creek township
OH Cuyahoga County
OH Cuyahoga Falls city
OH Cuyahoga Heights village
OH Deer Park city
OH Deerfield township
OH Delaware County
OH Delhi township
OH Doylestown village
OH Dublin city
OH Duchouquet township
OH East Cleveland city
OH Eastlake city
OH Eaton township
OH Elmwood Place village
OH Elyria city
OH Elyria township
OH Englewood city
OH Erie County
OH Etna township
OH Euclid city
OH Evendale village
OH Fairborn city
OH Fairfax village
OH Fairfield city
OH Fairfield County
OH Fairfield township
OH Fairlawn city
OH Fairport Harbor village
OH Fairview Park city
OH Fayette township
OH Forest Park city
OH Fort Shawnee village
OH Franklin city
OH Franklin County
OH Franklin township
OH Gahanna city
OH Garfield Heights city
OH Geauga County
OH Genoa township
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
OH German township
OH Girard city
OH Glendale village
OH Glenwillow village
OH Golf Manor village
OH Goshen township
OH Grand River village
OH Grandview Heights city
OH Green township
OH Green village
OH Greene County
OH Greenhills village
OH Grove City city
OH Groveport village
OH Hamilton city
OH Hamilton County
OH Hamilton township
OH Hanging Rock village
OH Hanover township
OH Harbor View village
OH Harrison township
OH Hartville village
OH Heath city
OH Highland Heights city
OH Hilliard city
OH Hills and Dales village
OH Hinckley township
OH Holland village
OH Howland township
OH Hubbard city
OH Hubbard township
OH Huber Heights city
OH Hudson township
OH Hudson village
OH Independence city
OH Ironton city
OH Island Creek township
OH Jackson township
OH Jefferson County
OH Jefferson township
OH Jerome township
OH Kent city
OH Kettering city
OH Kirtland city
OH Lake County
OH Lake township
OH Lakeline village
OH Lakemore village
OH Lakewood city
OH Lawrence County
OH Lawrence township
OH Lemon township
OH Lexington village
OH Liberty township
OH Licking County
OH Licking township
OH Lima city
OH Lima township
OH Lincoln Heights city
OH Linndale village
OH Lockland village
OH Lorain city
OH Lorain County
OH Louisville city
OH Loveland city
OH Lowellville village
OH Lucas County
OH Lyndhurst city
OH Macedonia city
OH Mad River township
OH Madeira city
OH Madison township
OH Mahoning County
OH Maineville village
OH Mansfield city
OH Maple Heights city
OH Marble Cliff village
OH Mariemont village
OH Martins Ferry city
OH Mason city
OH Massillon city
OH Maumee city
OH Mayfield Heights city
OH Mayfield village
OH McDonald village
OH Mead township
OH Medina County
OH Mentor city
OH Mentor-on-the-Lake city
OH Meyers Lake village
OH Miami County
OH Miami township
OH Miamisburg city
OH Middleburg Heights city
OH Middletown city
OH Mifflin township
OH Milford city
OH Millbury village
OH Millville village
OH Minerva Park village
OH Mingo Junction city
OH Mogadore village
OH Monclova township
OH Monroe township
OH Monroe village
OH Montgomery city
OH Montgomery County
OH Moorefield township
OH Moraine city
OH Moreland Hills village
OH Mount Healthy city
OH Munroe Falls village
OH New Miami village
OH New Middletown village
OH New Rome village
OH Newark city
OH Newark township
OH Newburgh Heights village
OH Newton township
OH Newtown village
OH Niles city
OH Nimishillen township
OH North Bend village
OH North Canton city
OH North College Hill city
OH North Olmsted city
OH North Randall village
OH North Ridgeville city
OH North Royalton city
OH Northfield Center township
OH Northfield village
OH Northwood city
OH Norton city
OH Norwich township
OH Norwood city
OH Oakwood city
OH Oakwood village
OH Obetz village
OH Ohio township
OH Olmsted Falls city
OH Olmsted township
OH Ontario village
OH Orange township
OH Orange village
OH Oregon city
OH Ottawa County
OH Ottawa Hills village
OH Painesville city
OH Painesville township
OH Palmyra township
OH Parma city
OH Parma Heights city
OH Pease township
OH Pepper Pike city
OH Perry township
OH Perrysburg city
OH Perrysburg city
OH Perrysburg township
OH Pierce township
OH Plain township
OH Pleasant township
OH Poland township
OH Poland village
OH Portage County
OH Powell village
OH Prairie township
OH Proctorville village
OH Pultney township
OH Randolph township
OH Ravenna city
OH Ravenna township
OH Reading city
OH Reminderville village
OH Reynoldsburg city
OH Richfield township
OH Richfield village
OH Richland County
OH Richmond Heights city
OH Riveredge township
OH Riverlea village
OH Riverside village
OH Rocky River city
OH Rome township
OH Ross township
OH Rossford city
OH Russell township
OH Russia township
OH Sagamore Hills township
OH Seven Hills city
OH Shadyside village
OH Shaker Heights city
OH Sharon township
OH Sharonville city
OH Shawnee Hills village
OH Shawnee township
OH Sheffield Lake city
OH Sheffield township
OH Sheffield village
OH Silver Lake village
OH Silverton city
OH Solon city
OH South Amherst village
OH South Euclid city
OH South Point village
OH South Russell village
OH Springboro city
OH Springdale city
OH Springfield city
OH Springfield township
OH St. Bernard city
OH St. Clair township
OH Stark County
OH Steubenville city
OH Steubenville township
OH Stow city
OH Strongsville city
OH Struthers city
OH Suffield township
OH Sugar Bush Knolls village
OH Sugar Creek township
OH Summit County
OH Sycamore township
OH Sylvania city
OH Sylvania township
OH Symmes township
OH Tallmadge city
OH Terrace Park village
OH The Village of Indian Hill city
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68827

68828 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
OH Timberlake village
OH Trenton city
OH Trotwood city
OH Troy township
OH Trumbull County
OH Truro township
OH Turtle Creek township
OH Tuscarawas township
OH Twinsburg city
OH Twinsburg township
OH Union city
OH Union County
OH Union township
OH University Heights city
OH Upper Arlington city
OH Upper township
OH Urbancrest village
OH Valley View village
OH Valleyview village
OH Vandalia city
OH Vermilion city
OH Vermilion township
OH Violet township
OH Wadsworth city
OH Wadsworth township
OH Waite Hill village
OH Walbridge village
OH Walton Hills village
OH Warren city
OH Warren County
OH Warren township
OH Warrensville Heights city
OH Warrensville township
OH Washington County
OH Washington township
OH Wayne County
OH Wayne township
OH Weathersfield township
OH Wells township
OH West Carrollton City city
OH West Milton village
OH Westerville city
OH Westlake city
OH Whitehall city
OH Whitewater township
OH Wickliffe city
OH Willoughby city
OH Willoughby Hills city
OH Willowick city
OH Wintersville village
OH Wood County
OH Woodlawn village
OH Woodmere village
OH Worthington city
OH Wyoming city
OH Youngstown city
OK Arkoma town
OK Bethany city
OK Bixby city
OK Broken Arrow city
OK Canadian County
OK Catoosa city
OK Choctaw city
OK Cleveland County
OK Comanche County
OK Creek County
OK Del City city
OK Edmond city
OK Forest Park town
OK Hall Park town
OK Harrah town
OK Jenks city
OK Jones town
OK Lake Aluma town
OK Lawton city
OK Le Flore County
OK Logan County
OK Midwest City city
OK Moffett town
OK Moore city
OK Mustang city
OK Nichols Hills city
OK Nicoma Park city
OK Norman city
OK Oklahoma County
OK Osage County
OK Pottawatomie County
OK Rogers County
OK Sand Springs city
OK Sequoyah County
OK Smith Village town
OK Spencer city
OK The Village city
OK Tulsa County
OK Valley Brook town
OK Wagoner County
OK Warr Acres city
OK Woodlawn Park town
OK Yukon city
OR Central Point city
OR Columbia County
OR Durham city
OR Jackson County
OR Keizer city
OR King City city
OR Lane County
OR Marion County
OR Maywood Park city
OR Medford city
OR Phoenix city
OR Polk County
OR Rainier city
OR Springfield city
OR Troutdale city
OR Tualatin city
OR Wood Village city
PA Abington township
PA Adamsburg borough
PA Alburtis borough
PA Aldan borough
PA Aleppo township
PA Aliquippa city
PA Allegheny County
PA Allegheny township
PA Allen township
PA Allenport borough
PA Alsace township
PA Altoona city
PA Ambler borough
PA Ambridge borough
PA Amwell township
PA Antis township
PA Antrim township
PA Archbald borough
PA Arnold city
PA Ashley borough
PA Aspinwall borough
PA Aston township
PA Avalon borough
PA Avoca borough
PA Baden borough
PA Baldwin borough
PA Baldwin township
PA Beaver borough
PA Beaver County
PA Beaver Falls city
PA Bell Acres borough
PA Belle Vernon borough
PA Bellevue borough
PA Ben Avon borough
PA Ben Avon Heights borough
PA Bensalem township
PA Berks County
PA Bern township
PA Bethel Park borough
PA Bethel township
PA Bethlehem city
PA Bethlehem township
PA Big Beaver borough
PA Birdsboro borough
PA Birmingham township
PA Blair County
PA Blair township
PA Blakely borough
PA Blawnox borough
PA Boyertown borough
PA Brackenridge borough
PA Braddock borough
PA Braddock Hills borough
PA Bradfordwoods borough
PA Brentwood borough
PA Bridgeport borough
PA Bridgeville borough
PA Bridgewater borough
PA Brighton township
PA Bristol borough
PA Bristol township
PA Brookhaven borough
PA Brownstown borough
PA Brownsville borough
PA Brownsville township
PA Bryn Athyn borough
PA Buckingham township
PA Bucks County
PA California borough
PA Caln township
PA Cambria County
PA Camp Hill borough
PA Canonsburg borough
PA Canton township
PA Carbondale city
PA Carbondale township
PA Carnegie borough
PA Carroll township
PA Castle Shannon borough
PA Catasauqua borough
PA Cecil township
PA Center township
PA Centre County
PA Chalfant borough
PA Chalfont borough
PA Charleroi borough
PA Charlestown township
PA Chartiers township
PA Cheltenham township
PA Chester city
PA Chester County
PA Chester Heights borough
PA Chester township
PA Cheswick borough
PA Chippewa township
PA Churchill borough
PA Clairton city
PA Clarks Green borough
PA Clarks Summit borough
PA Clifton Heights borough
PA Coal Center borough
PA Coatesville city
PA Colebrookdale township
PA College township
PA Collegeville borough
PA Collier township
PA Collingdale borough
PA Columbia borough
PA Colwyn borough
PA Concord township
PA Conemaugh township
PA Conestoga township
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
PA Conewago township
PA Conshohocken borough
PA Conway borough
PA Coplay borough
PA Coraopolis borough
PA Courtdale borough
PA Crafton borough
PA Crescent township
PA Cumberland County
PA Cumru township
PA Daisytown borough
PA Dale borough
PA Dallas borough
PA Dallas township
PA Dallastown borough
PA Darby borough
PA Darby township
PA Daugherty township
PA Dauphin County
PA Delaware County
PA Delmont borough
PA Derry township
PA Dickson City borough
PA Donora borough
PA Dormont borough
PA Douglass township
PA Dover borough
PA Dover township
PA Downingtown borough
PA Doylestown borough
PA Doylestown township
PA Dravosburg borough
PA Duboistown borough
PA Duncansville borough
PA Dunlevy borough
PA Dunmore borough
PA Dupont borough
PA Duquesne city
PA Duryea borough
PA East Allen township
PA East Bradford township
PA East Brandywine township
PA East Caln township
PA East Conemaugh borough
PA East Coventry township
PA East Deer township
PA East Fallowfield township
PA East Goshen township
PA East Hempfield township
PA East Lampeter township
PA East Lansdowne borough
PA East McKeesport borough
PA East Norriton township
PA East Pennsboro township
PA East Petersburg borough
PA East Pikeland township
PA East Pittsburgh borough
PA East Rochester borough
PA East Taylor township
PA East Vincent township
PA East Washington borough
PA East Whiteland township
PA Easton city
PA Easttown township
PA Eastvale borough
PA Economy borough
PA Eddystone borough
PA Edgewood borough
PA Edgeworth borough
PA Edgmont township
PA Edwardsville borough
PA Elco borough
PA Elizabeth borough
PA Elizabeth township
PA Ellport borough
PA Ellwood City borough
PA Emmaus borough
PA Emsworth borough
PA Erie city
PA Erie County
PA Etna borough
PA Exeter borough
PA Exeter township
PA Export borough
PA Fairfield township
PA Fairview township
PA Fallowfield township
PA Falls township
PA Fallston borough
PA Farrell city
PA Fayette City borough
PA Fayette County
PA Fell township
PA Ferguson township
PA Ferndale borough
PA Findlay township
PA Finleyville borough
PA Folcroft borough
PA Forest Hills borough
PA Forks township
PA Forty Fort borough
PA Forward township
PA Fountain Hill borough
PA Fox Chapel borough
PA Franconia township
PA Franklin borough
PA Franklin County
PA Franklin Park borough
PA Franklin township
PA Frankstown township
PA Frazer township
PA Freedom borough
PA Freemansburg borough
PA Geistown borough
PA Glassport borough
PA Glendon borough
PA Glenfield borough
PA Glenolden borough
PA Green Tree borough
PA Greensburg city
PA Hallam borough
PA Hampden township
PA Hampton township
PA Hanover township
PA Harborcreek township
PA Harmar township
PA Harmony township
PA Harris township
PA Harrisburg city
PA Harrison township
PA Harveys Lake borough
PA Hatboro borough
PA Hatfield borough
PA Hatfield township
PA Haverford township
PA Haysville borough
PA Heidelberg borough
PA Hellam township
PA Hellertown borough
PA Hempfield township
PA Hepburn township
PA Hermitage city
PA Highspire borough
PA Hilltown township
PA Hollidaysburg borough
PA Homestead borough
PA Homewood borough
PA Hopewell township
PA Horsham township
PA Houston borough
PA Hughestown borough
PA Hulmeville borough
PA Hummelstown borough
PA Hunker borough
PA Indiana township
PA Ingram borough
PA Irwin borough
PA Ivyland borough
PA Jackson township
PA Jacobus borough
PA Jeannette city
PA Jefferson borough
PA Jenkins township
PA Jenkintown borough
PA Jermyn borough
PA Jessup borough
PA Johnstown city
PA Juniata township
PA Kenhorst borough
PA Kennedy township
PA Kilbuck township
PA Kingston borough
PA Kingston township
PA Koppel borough
PA Lackawanna County
PA Laflin borough
PA Lancaster city
PA Lancaster County
PA Lancaster township
PA Langhorne borough
PA Langhorne Manor borough
PA Lansdale borough
PA Lansdowne borough
PA Larksville borough
PA Laurel Run borough
PA Laureldale borough
PA Lawrence County
PA Lawrence Park township
PA Lebanon County
PA Leesport borough
PA Leet township
PA Leetsdale borough
PA Lehigh County
PA Lehman township
PA Lemoyne borough
PA Liberty borough
PA Limerick township
PA Lincoln borough
PA Lititz borough
PA Logan township
PA Loganville borough
PA London Britain township
PA Londonderry township
PA Lorain borough
PA Lower Allen township
PA Lower Alsace township
PA Lower Burrell city
PA Lower Chichester township
PA Lower Frederick township
PA Lower Gwynedd township
PA Lower Heidelberg township
PA Lower Macungie township
PA Lower Makefield township
PA Lower Merion township
PA Lower Moreland township
PA Lower Nazareth township
PA Lower Paxton township
PA Lower Pottsgrove township
PA Lower Providence township
PA Lower Salford township
PA Lower Saucon township
PA Lower Southampton township
PA Lower Swatara township
PA Lower Yoder township
PA Loyalsock township
PA Luzerne borough
PA Luzerne County
PA Luzerne township
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68829

68830 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
PA Lycoming County
PA Lycoming township
PA Macungie borough
PA Madison borough
PA Maidencreek township
PA Malvern borough
PA Manchester township
PA Manheim township
PA Manor borough
PA Manor township
PA Marcus Hook borough
PA Marple township
PA Marshall township
PA Marysville borough
PA Mayfield borough
PA McCandless township
PA McKean township
PA McKees Rocks borough
PA McKeesport city
PA Mechanicsburg borough
PA Media borough
PA Mercer County
PA Middle Taylor township
PA Middletown borough
PA Middletown township
PA Millbourne borough
PA Millcreek township
PA Millersville borough
PA Millvale borough
PA Modena borough
PA Mohnton borough
PA Monaca borough
PA Monessen city
PA Monongahela city
PA Monroe township
PA Montgomery County
PA Montgomery township
PA Montoursville borough
PA Moon township
PA Moosic borough
PA Morrisville borough
PA Morton borough
PA Mount Lebanon township
PA Mount Oliver borough
PA Mount Penn borough
PA Mountville borough
PA Muhlenberg township
PA Munhall borough
PA Municipality of Monroeville borough
PA Municipality of Murrysville borough
PA Nanticoke city
PA Narberth borough
PA Nether Providence township
PA Neville township
PA New Brighton borough
PA New Britain borough
PA New Britain township
PA New Cumberland borough
PA New Eagle borough
PA New Galilee borough
PA New Garden township
PA New Hanover township
PA New Kensington city
PA New Sewickley township
PA New Stanton borough
PA Newell borough
PA Newport township
PA Newton township
PA Newtown borough
PA Newtown township
PA Norristown borough
PA North Belle Vernon borough
PA North Braddock borough
PA North Catasauqua borough
PA North Charleroi borough
PA North Coventry township
PA North Franklin township
PA North Huntingdon township
PA North Irwin borough
PA North Londonderry township
PA North Sewickley township
PA North Strabane township
PA North Versailles township
PA North Wales borough
PA North Whitehall township
PA North York borough
PA Northampton borough
PA Northampton County
PA Northampton township
PA Norwood borough
PA Oakmont borough
PA O’Hara township
PA Ohio township
PA Old Forge borough
PA Old Lycoming township
PA Olyphant borough
PA Ontelaunee township
PA Osborne borough
PA Paint borough
PA Paint township
PA Palmer township
PA Palmyra borough
PA Parkside borough
PA Patterson Heights borough
PA Patterson township
PA Patton township
PA Paxtang borough
PA Penbrook borough
PA Penn borough
PA Penn Hills township
PA Penn township
PA Penndel borough
PA Pennsbury Village borough
PA Pequea township
PA Perkiomen township
PA Perry County
PA Perry township
PA Peters township
PA Phoenixville borough
PA Pine township
PA Pitcairn borough
PA Pittsburgh city
PA Pittston city
PA Pittston township
PA Plains township
PA Pleasant Hills borough
PA Plum borough
PA Plymouth borough
PA Plymouth township
PA Port Vue borough
PA Potter township
PA Pottstown borough
PA Pringle borough
PA Prospect Park borough
PA Pulaski township
PA Radnor township
PA Rankin borough
PA Ransom township
PA Reading city
PA Red Lion borough
PA Reserve township
PA Richland township
PA Ridley Park borough
PA Ridley township
PA Robinson township
PA Rochester borough
PA Rochester township
PA Rockledge borough
PA Roscoe borough
PA Rose Valley borough
PA Ross township
PA Rosslyn Farms borough
PA Rostraver township
PA Royalton borough
PA Royersford borough
PA Rutledge borough
PA Salem township
PA Salisbury township
PA Scalp Level borough
PA Schuylkill township
PA Schwenksville borough
PA Scott township
PA Scranton city
PA Sewickley borough
PA Sewickley Heights borough
PA Sewickley Hills borough
PA Sewickley township
PA Shaler township
PA Sharon city
PA Sharon Hill borough
PA Sharpsburg borough
PA Sharpsville borough
PA Shenango township
PA Shillington borough
PA Shiremanstown borough
PA Silver Spring township
PA Sinking Spring borough
PA Skippack township
PA Somerset County
PA Souderton borough
PA South Abington township
PA South Coatesville borough
PA South Fayette township
PA South Greensburg borough
PA South Hanover township
PA South Heidelberg township
PA South Heights borough
PA South Huntingdon township
PA South Park township
PA South Pymatuning township
PA South Strabane township
PA South Whitehall township
PA South Williamsport borough
PA Southmont borough
PA Southwest Greensburg borough
PA Speers borough
PA Spring City borough
PA Spring Garden township
PA Spring township
PA Springdale borough
PA Springdale township
PA Springettsbury township
PA Springfield township
PA St. Lawrence borough
PA State College borough
PA Steelton borough
PA Stockdale borough
PA Stonycreek township
PA Stowe township
PA Sugar Notch borough
PA Summit township
PA Susquehanna township
PA Sutersville borough
PA Swarthmore borough
PA Swatara township
PA Swissvale borough
PA Swoyersville borough
PA Tarentum borough
PA Taylor borough
PA Telford borough
PA Temple borough
PA Thornburg borough
PA Thornbury township
PA Throop borough
PA Tinicum township
PA Towamencin township
PA Trafford borough
PA Trainer borough
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
PA Trappe borough
PA Tredyffrin township
PA Tullytown borough
PA Turtle Creek borough
PA Union township
PA Upland borough
PA Upper Allen township
PA Upper Chichester township
PA Upper Darby township
PA Upper Dublin township
PA Upper Gwynedd township
PA Upper Leacock township
PA Upper Macungie township
PA Upper Makefield township
PA Upper Merion township
PA Upper Milford township
PA Upper Moreland township
PA Upper Pottsgrove township
PA Upper Providence township
PA Upper Saucon township
PA Upper Southampton township
PA Upper St. Clair township
PA Upper Yoder township
PA Uwchlan township
PA Valley township
PA Vanport township
PA Verona borough
PA Versailles borough
PA Wall borough
PA Warminster township
PA Warrington township
PA Warrior Run borough
PA Warwick township
PA Washington city
PA Washington County
PA Washington township
PA Wayne township
PA Wernersville borough
PA Wesleyville borough
PA West Bradford township
PA West Brownsville borough
PA West Chester borough
PA West Conshohocken borough
PA West Deer township
PA West Earl township
PA West Easton borough
PA West Elizabeth borough
PA West Fairview borough
PA West Goshen township
PA West Hanover township
PA West Hempfield township
PA West Homestead borough
PA West Lampeter township
PA West Lawn borough
PA West Manchester township
PA West Mayfield borough
PA West Middlesex borough
PA West Mifflin borough
PA West Newton borough
PA West Norriton township
PA West Pikeland township
PA West Pittston borough
PA West Pottsgrove township
PA West Reading borough
PA West Taylor township
PA West View borough
PA West Whiteland township
PA West Wyoming borough
PA West York borough
PA Westmont borough
PA Westmoreland County
PA Westtown township
PA Wheatland borough
PA Whitaker borough
PA White Oak borough
PA White township
PA Whitehall township
PA Whitemarsh township
PA Whitpain township
PA Wilkes-Barre city
PA Wilkes-Barre township
PA Wilkins township
PA Wilkinsburg borough
PA Williams township
PA Williamsport city
PA Willistown township
PA Wilmerding borough
PA Wilson borough
PA Windber borough
PA Windsor borough
PA Windsor township
PA Worcester township
PA Wormleysburg borough
PA Wrightsville borough
PA Wyoming borough
PA Wyomissing borough
PA Wyomissing Hills borough
PA Yardley borough
PA Yatesville borough
PA Yeadon borough
PA Yoe borough
PA York city
PA York County
PA York township
PA Youngwood borough
PR Aibonita
PR Anasco
PR Aquada
PR Aquadilla
PR Aquas Buenas
PR Arecibo
PR Bayamon
PR Cabo Rojo
PR Caguas
PR Camuy
PR Canovanas
PR Catano
PR Cayey
PR Cidra
PR Dorado
PR Guaynabo
PR Gurabo
PR Hatillo
PR Hormigueros
PR Humacao
PR Juncos
PR Las Piedras
PR Loiza
PR Manati
PR Mayaguez
PR Moca
PR Naguabo
PR Naranjito
PR Penuelas
PR Ponce
PR Rio Grande
PR San German
PR San Lorenzo
PR Toa Alta
PR Toa Baja
PR Trujillo Alto
PR Vega Alta
PR Vega Baja
PR Yabucao
RI Barrington town
RI Bristol town
RI Burrillville town
RI Central Falls city
RI Coventry town
RI Cranston city
RI Cumberland town
RI East Greenwich town
RI East Providence city
RI Glocester town
RI Jamestown town
RI Johnston town
RI Lincoln town
RI Middletown town
RI Newport city
RI Newport County
RI North Kingstown town
RI North Providence town
RI North Smithfield town
RI Pawtucket city
RI Portsmouth town
RI Providence city
RI Providence County
RI Scituate town
RI Smithfield town
RI Tiverton town
RI Warren town
RI Warwick city
RI Washington County
RI West Greenwich town
RI West Warwick town
RI Woonsocket city
SC Aiken city
SC Aiken County
SC Anderson city
SC Anderson County
SC Arcadia Lakes town
SC Berkeley County
SC Burnettown town
SC Cayce city
SC Charleston city
SC Charleston County
SC City View town
SC Columbia city
SC Cowpens town
SC Darlington County
SC Dorchester County
SC Edgefield County
SC Florence city
SC Florence County
SC Folly Beach city
SC Forest Acres city
SC Fort Mill town
SC Georgetown County
SC Goose Creek city
SC Hanahan city
SC Horry County
SC Irmo town
SC Isle of Palms city
SC Lexington County
SC Lincolnville town
SC Mount Pleasant town
SC Myrtle Beach city
SC North Augusta city
SC North Charleston city
SC Pickens County
SC Pineridge town
SC Quinby town
SC Rock Hill city
SC South Congaree town
SC Spartanburg city
SC Spartanburg County
SC Springdale town
SC Sullivan’s Island town
SC Summerville town
SC Sumter city
SC Sumter County
SC Surfside Beach town
SC West Columbia city
SC York County
SD Big Sioux township
SD Central Pennington unorg.
SD Lincoln County
SD Mapleton township
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68832 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
SD Minnehaha County
SD North Sioux City city
SD Pennington County
SD Rapid City city
SD Split Rock township
SD Union County
SD Wayne township
TN Alcoa city
TN Anderson County
TN Bartlett town
TN Belle Meade city
TN Berry Hill city
TN Blount County
TN Brentwood city
TN Bristol city
TN Carter County
TN Church Hill town
TN Clarksville city
TN Collegedale city
TN Davidson County
TN East Ridge city
TN Elizabethton city
TN Farragut town
TN Forest Hills city
TN Germantown city
TN Goodlettsville city
TN Hamilton County
TN Hawkins County
TN Hendersonville city
TN Jackson city
TN Johnson City city
TN Jonesborough town
TN Kingsport city
TN Knox County
TN Lakesite city
TN Lakewood city
TN Lookout Mountain town
TN Loudon County
TN Madison County
TN Maryville city
TN Montgomery County
TN Mount Carmel town
TN Mount Juliet city
TN Oak Hill city
TN Red Bank city
TN Ridgeside city
TN Rockford city
TN Shelby County
TN Signal Mountain town
TN Soddy-Daisy city
TN Sullivan County
TN Sumner County
TN Washington County
TN Williamson County
TN Wilson County
TX Addison city
TX Alamo city
TX Alamo Heights city
TX Allen city
TX Archer County
TX Azle city
TX Balch Springs city
TX Balcones Heights city
TX Bayou Vista village
TX Baytown city
TX Bedford city
TX Bell County
TX Bellaire city
TX Bellmead city
TX Belton city
TX Benbrook city
TX Beverly Hills city
TX Bexar County
TX Blue Mound city
TX Bowie County
TX Brazoria County
TX Brazos County
TX Brookside Village city
TX Brownsville city
TX Bryan city
TX Buckingham town
TX Bunker Hill Village city
TX Cameron County
TX Carrollton city
TX Castle Hills city
TX Cedar Hill city
TX Cedar Park city
TX Chambers County
TX Cibolo city
TX Clear Lake Shores city
TX Clint town
TX Cockrell Hill city
TX College Station city
TX Colleyville city
TX Collin County
TX Comal County
TX Combes town
TX Converse city
TX Copperas Cove city
TX Corinth town
TX Coryell County
TX Crowley city
TX Dallas County
TX Dalworthington Gardens city
TX Deer Park city
TX Denison city
TX Denton city
TX Denton County
TX DeSoto city
TX Dickinson city
TX Donna city
TX Double Oak town
TX Duncanville city
TX Ector County
TX Edgecliff village
TX Edinburg city
TX El Lago city
TX El Paso County
TX Ellis County
TX Euless city
TX Everman city
TX Farmers Branch city
TX Flower Mound town
TX Forest Hill city
TX Fort Bend County
TX Friendswood city
TX Galena Park city
TX Galveston city
TX Galveston County
TX Grand Prairie city
TX Grapevine city
TX Grayson County
TX Gregg County
TX Groves city
TX Guadalupe County
TX Haltom City city
TX Hardin County
TX Harker Heights city
TX Harlingen city
TX Harrison County
TX Hedwig Village city
TX Hewitt city
TX Hickory Creek town
TX Hidalgo County
TX Highland Park town
TX Highland Village city
TX Hill Country Village city
TX Hilshire Village city
TX Hitchcock city
TX Hollywood Park town
TX Howe town
TX Humble city
TX Hunters Creek Village city
TX Hurst city
TX Hutchins city
TX Impact town
TX Jacinto City city
TX Jefferson County
TX Jersey Village city
TX Johnson County
TX Jones County
TX Katy city
TX Kaufman County
TX Keller city
TX Kemah city
TX Kennedale city
TX Killeen city
TX Kirby city
TX Kleberg County
TX La Marque city
TX La Porte city
TX Lacy-Lakeview city
TX Lake Dallas city
TX Lake Worth city
TX Lakeside City town
TX Lakeside town
TX Lampasas County
TX Lancaster city
TX League City city
TX Leander city
TX Leon Valley city
TX Lewisville city
TX Live Oak city
TX Longview city
TX Lubbock County
TX Lumberton city
TX Martin County
TX McAllen city
TX McLennan County
TX Meadows city
TX Midland city
TX Midland County
TX Mission city
TX Missouri City city
TX Montgomery County
TX Morgan’s Point city
TX Nash city
TX Nassau Bay city
TX Nederland city
TX Nolanville city
TX North Richland Hills city
TX Northcrest town
TX Nueces County
TX Odessa city
TX Olmos Park city
TX Palm Valley town
TX Palmview city
TX Pantego town
TX Parker County
TX Pearland city
TX Pflugerville city
TX Pharr city
TX Piney Point Village city
TX Port Arthur city
TX Port Neches city
TX Portland city
TX Potter County
TX Primera town
TX Randall County
TX Richardson city
TX Richland Hills city
TX River Oaks city
TX Robinson city
TX Rockwall city
TX Rockwall County
TX Rollingwood city
TX Rose Hill Acres city
TX Rowlett city
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
TX Sachse city
TX Saginaw city
TX San Angelo city
TX San Benito city
TX San Juan city
TX San Patricio County
TX Sansom Park city
TX Santa Fe city
TX Schertz city
TX Seabrook city
TX Seagoville city
TX Selma city
TX Shavano Park city
TX Sherman city
TX Shoreacres city
TX Smith County
TX Socorro town
TX South Houston city
TX Southside Place city
TX Spring Valley city
TX Stafford town
TX Sugar Land city
TX Sunset Valley city
TX Tarrant County
TX Taylor County
TX Taylor Lake Village city
TX Temple city
TX Terrell Hills city
TX Texarkana city
TX Texas City city
TX Tom Green County
TX Travis County
TX Tye town
TX Tyler city
TX Universal City city
TX University Park city
TX Victoria city
TX Victoria County
TX Wake Village city
TX Waller County
TX Watauga city
TX Webb County
TX Webster city
TX Weslaco city
TX West Lake Hills city
TX West University Place city
TX Westover Hills town
TX Westworth village
TX White Oak city
TX White Settlement city
TX Wichita County
TX Wichita Falls city
TX Williamson County
TX Wilmer city
TX Windcrest city
TX Woodway city
UT American Fork city
UT Bluffdale city
UT Bountiful city
UT Cache County
UT Cedar Hills town
UT Centerville city
UT Clearfield city
UT Clinton city
UT Davis County
UT Draper city
UT Farmington city
UT Farr West city
UT Fruit Heights city
UT Harrisville city
UT Highland city
UT Hyde Park city
UT Kaysville city
UT Layton city
UT Lehi city
UT Lindon city
UT Logan city
UT Mapleton city
UT Midvale city
UT Millville city
UT Murray city
UT North Logan city
UT North Ogden city
UT North Salt Lake city
UT Ogden city
UT Orem city
UT Pleasant Grove city
UT Pleasant View city
UT Providence city
UT Provo city
UT River Heights city
UT Riverdale city
UT Riverton city
UT Roy city
UT Sandy city
UT Smithfield city
UT South Jordan city
UT South Ogden city
UT South Salt Lake city
UT South Weber city
UT Springville city
UT Sunset city
UT Syracuse city
UT Uintah town
UT Utah County
UT Washington Terrace city
UT Weber County
UT West Bountiful city
UT West Jordan city
UT West Point city
UT West Valley City city
UT Woods Cross city
VA Albemarle County
VA Alexandria city
VA Amherst County
VA Bedford County
VA Botetourt County
VA Bristol city
VA Campbell County
VA Charlottesville city
VA Colonial Heights city
VA Danville city
VA Dinwiddie County
VA Fairfax city
VA Falls Church city
VA Fredericksburg city
VA Gate City town
VA Gloucester County
VA Hanover County
VA Herndon town
VA Hopewell city
VA James City County
VA Loudoun County
VA Lynchburg city
VA Manassas city
VA Manassas Park city
VA Occoquan town
VA Petersburg city
VA Pittsylvania County
VA Poquoson city
VA Prince George County
VA Richmond city
VA Roanoke city
VA Roanoke County
VA Salem city
VA Scott County
VA Spotsylvania County
VA Stafford County
VA Suffolk city
VA Vienna town
VA Vinton town
VA Washington County
VA Weber City town
VA Williamsburg city
VA York County
VT Burlington city
VT Chittenden County
VT Colchester town
VT Essex Junction village
VT Essex town
VT Shelburne town
VT South Burlington city
VT Williston town
VT Winooski city
WA Algona city
WA Auburn city
WA Beaux Arts Village town
WA Bellevue city
WA Bellingham city
WA Benton County
WA Bonney Lake city
WA Bothell city
WA Bremerton city
WA Brier city
WA Clyde Hill town
WA Cowlitz County
WA Des Moines city
WA DuPont city
WA Edmonds city
WA Everett city
WA Fife city
WA Fircrest town
WA Franklin County
WA Gig Harbor city
WA Hunts Point town
WA Issaquah city
WA Kelso city
WA Kennewick city
WA Kent city
WA Kirkland city
WA Kitsap County
WA Lacey city
WA Lake Forest Park city
WA Longview city
WA Lynnwood city
WA Marysville city
WA Medina city
WA Mercer Island city
WA Mill Creek city
WA Millwood town
WA Milton city
WA Mountlake Terrace city
WA Mukilteo city
WA Normandy Park city
WA Olympia city
WA Pacific city
WA Pasco city
WA Port Orchard city
WA Puyallup city
WA Redmond city
WA Renton city
WA Richland city
WA Ruston town
WA Selah city
WA Steilacoom town
WA Sumner city
WA Thurston County
WA Tukwila city
WA Tumwater city
WA Union Gap city
WA Vancouver city
WA West Richland city
WA Whatcom County
WA Woodway city
WA Yakima city
WA Yakima County
WA Yarrow Point town
WI Algoma town
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68834 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
WI Allouez village
WI Altoona city
WI Appleton city
WI Ashwaubenon village
WI Bayside village
WI Bellevue town
WI Beloit city
WI Beloit town
WI Big Bend village
WI Black Wolf town
WI Blooming Grove town
WI Brookfield city
WI Brookfield town
WI Brown County
WI Brown Deer village
WI Brunswick town
WI Buchanan town
WI Burke town
WI Butler village
WI Caledonia town
WI Calumet County
WI Campbell town
WI Cedarburg city
WI Cedarburg town
WI Chippewa County
WI Chippewa Falls city
WI Clayton town
WI Combined Locks village
WI Cudahy city
WI Dane County
WI De Pere city
WI De Pere town
WI Delafield town
WI Douglas County
WI Dunn town
WI Eagle Point town
WI Eau Claire city
WI Eau Claire County
WI Elm Grove village
WI Elmwood Park village
WI Fitchburg city
WI Fox Point village
WI Franklin city
WI Germantown town
WI Germantown village
WI Glendale city
WI Grafton town
WI Grafton village
WI Grand Chute town
WI Green Bay city
WI Greendale village
WI Greenfield city
WI Greenville town
WI Hales Corners village
WI Hallie town
WI Harmony town
WI Harrison town
WI Hobart town
WI Holmen village
WI Howard village
WI Janesville city
WI Janesville town
WI Kaukauna city
WI Kenosha city
WI Kenosha County
WI Kimberly village
WI Kohler village
WI La Crosse city
WI La Crosse County
WI La Prairie town
WI Lafayette town
WI Lannon village
WI Lima town
WI Lisbon town
WI Little Chute village
WI Madison town
WI Maple Bluff village
WI Marathon County
WI McFarland village
WI Medary town
WI Menasha city
WI Menasha town
WI Menomonee Falls village
WI Mequon city
WI Middleton city
WI Middleton town
WI Monona city
WI Mount Pleasant town
WI Muskego city
WI Neenah city
WI Neenah town
WI Nekimi town
WI New Berlin city
WI North Bay village
WI Norway town
WI Oak Creek city
WI Onalaska city
WI Onalaska town
WI Oshkosh city
WI Oshkosh town
WI Outagamie County
WI Ozaukee County
WI Pewaukee town
WI Pewaukee village
WI Pleasant Prairie town
WI Pleasant Prairie village
WI Racine city
WI Racine County
WI Rib Mountain town
WI River Hills village
WI Rock County
WI Rock town
WI Rothschild village
WI Salem town
WI Schofield city
WI Scott town
WI Sheboygan city
WI Sheboygan County
WI Sheboygan Falls city
WI Sheboygan Falls town
WI Sheboygan town
WI Shelby town
WI Shorewood Hills village
WI Shorewood village
WI Somers town
WI South Milwaukee city
WI St. Francis city
WI Stettin town
WI Sturtevant village
WI Superior city
WI Superior village
WI Sussex village
WI Thiensville village
WI Turtle town
WI Union town
WI Vandenbroek town
WI Vernon town
WI Washington County
WI Washington town
WI Waukesha city
WI Waukesha County
WI Waukesha town
WI Wausau city
WI Wauwatosa city
WI West Allis city
WI West Milwaukee village
WI Weston town
WI Westport town
WI Wheaton town
WI Whitefish Bay village
WI Wilson town
WI Wind Point village
WI Winnebago County
WV Bancroft town
WV Barboursville village
WV Belle town
WV Benwood city
WV Berkeley County
WV Bethlehem village
WV Brooke County
WV Cabell County
WV Cedar Grove town
WV Ceredo city
WV Charleston city
WV Chesapeake town
WV Clearview village
WV Dunbar city
WV East Bank town
WV Follansbee city
WV Glasgow town
WV Glen Dale city
WV Hancock County
WV Huntington city
WV Hurricane city
WV Kanawha County
WV Kenova city
WV Marmet city
WV Marshall County
WV McMechen city
WV Mineral County
WV Moundsville city
WV Nitro city
WV North Hills town
WV Ohio County
WV Parkersburg city
WV Poca town
WV Putnam County
WV Ridgeley town
WV South Charleston city
WV St. Albans city
WV Triadelphia town
WV Vienna city
WV Wayne County
WV Weirton city
WV Wheeling city
WV Wood County
WY Casper city
WY Cheyenne city
WY Evansville town
WY Laramie County
WY Mills town
WY Natrona County
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
Appendix 7 of Preamble—
Governmental Entities (Located Outside
of an Urbanized Area) That Must Be
Examined By the NPDES Permitting
Authority for Potential Designation
Under § 123.35(b)(2)
(All listed entities have a population of at
least 10,000 and a population density of at
least 1,000. A listed entity would only be
potentially designated if it operates a small
MS4. See § 122.26(b)(16) for the definition of
a small MS4.)
(This list does not include all operators of
small MS4s that may be designated by the
NPDES permitting authority. Operators of
small MS4s in areas with populations below
10,000 and densities below 1,000 may also be
designated but examination of them is not
required. Also, entities such as military
bases, large hospitals, prison complexes,
universities, sewer districts, and highway
departments that operate a small MS4 in an
area listed here, or in an area otherwise
designated by the NPDES permitting
authority, may be designated and become
subject to permitting regulations.) (Source:
1990 Census of Population and Housing, U.S.
Bureau of the Census. This list is subject to
change with the Decennial Census)
AL Daphne city
AL Jacksonville city
AL Selma city
AR Arkadelphia city
AR Benton city
AR Blytheville city
AR Conway city
AR El Dorado city
AR Hot Springs city
AR Magnolia city
AR Rogers city
AR Searcy city
AR Stuttgart city
AZ Douglas city
CA Arcata city
CA Arroyo Grande city
CA Atwater city
CA Auburn city
CA Banning city
CA Brawley city
CA Calexico city
CA Clearlake city
CA Corcoran city
CA Delano city
CA Desert Hot Springs city
CA Dinuba city
CA Dixon city
CA El Centro city
CA El Paso de Robles (Paso Robles) city
CA Eureka city
CA Fillmore city
CA Gilroy city
CA Grover City city
CA Hanford city
CA Hollister city
CA Lemoore city
CA Los Banos city
CA Madera city
CA Manteca city
CA Oakdale city
CA Oroville city
CA Paradise town
CA Petaluma city
CA Porterville city
CA Red Bluff city
CA Reedley city
CA Ridgecrest city
CA Sanger city
CA Santa Paula city
CA Selma city
CA South Lake Tahoe city
CA Temecula city
CA Tracy city
CA Tulare city
CA Turlock city
CA Ukiah city
CA Wasco city
CA Woodland city
CO Canon City city
CO Durango city
CO Lafayette city
CO Louisville city
CO Loveland city
CO Sterling city
FL Bartow city
FL Belle Glade city
FL De Land city
FL Eustis city
FL Haines City city
FL Key West city
FL Leesburg city
FL Palatka city
FL Plant City city
FL St. Augustine city
FL St. Cloud city
GA Americus city
GA Carrollton city
GA Cordele city
GA Dalton city
GA Dublin city
GA Griffin city
GA Hinesville city
GA Moultrie city
GA Newnan city
GA Statesboro city
GA Thomasville city
GA Tifton city
GA Valdosta city
GA Waycross city
IA Ames city
IA Ankeny city
IA Boone city
IA Burlington city
IA Fort Dodge city
IA Fort Madison city
IA Indianola city
IA Keokuk city
IA Marshalltown city
IA Mason City city
IA Muscatine city
IA Newton city
IA Oskaloosa city
IA Ottumwa city
IA Spencer city
ID Caldwell city
ID Coeur d’Alene city
ID Lewiston city
ID Moscow city
ID Nampa city
ID Rexburg city
ID Twin Falls city
IL Belvidere city
IL Canton city
IL Carbondale city
IL Centralia city
IL Charleston city
IL Danville city
IL De Kalb city
IL Dixon city
IL Effingham city
IL Freeport city
IL Galesburg city
IL Jacksonville city
IL Macomb city
IL Mattoon city
IL Mount Vernon city
IL Ottawa city
IL Pontiac city
IL Quincy city
IL Rantoul village
IL Sterling city
IL Streator city
IL Taylorville city
IL Woodstock city
IN Bedford city
IN Columbus city
IN Crawfordsville city
IN Frankfort city
IN Franklin city
IN Greenfield city
IN Huntington city
IN Jasper city
IN La Porte city
IN Lebanon city
IN Logansport city
IN Madison city
IN Marion city
IN Martinsville city
IN Michigan City city
IN New Castle city
IN Noblesville city
IN Peru city
IN Plainfield town
IN Richmond city
IN Seymour city
IN Shelbyville city
IN Valparaiso city
IN Vincennes city
IN Wabash city
IN Warsaw city
IN Washington city
KS Arkansas City city
KS Atchison city
KS Coffeyville city
KS Derby city
KS Dodge City city
KS El Dorado city
KS Emporia city
KS Garden City city
KS Great Bend city
KS Hays city
KS Hutchinson city
KS Junction City city
KS Leavenworth city
KS Liberal city
KS Manhattan city
KS McPherson city
KS Newton city
KS Ottawa city
KS Parsons city
KS Pittsburg city
KS Salina city
KS Winfield city
KY Bowling Green city
KY Danville city
KY Frankfort city
KY Georgetown city
KY Glasgow city
KY Hopkinsville city
KY Madisonville city
KY Middlesborough city
KY Murray city
KY Nicholasville city
KY Paducah city
KY Radcliff city
KY Richmond city
KY Somerset city
KY Winchester city
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68836 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
LA Abbeville city
LA Bastrop city
LA Bogalusa city
LA Crowley city
LA Eunice city
LA Hammond city
LA Jennings city
LA Minden city
LA Morgan City city
LA Natchitoches city
LA New Iberia city
LA Opelousas city
LA Ruston city
LA Thibodaux city
MA Amherst town
MA Clinton town
MA Milford town
MA Newburyport city
MD Aberdeen town
MD Cambridge city
MD Salisbury city
MD Westminster city
ME Waterville city
MI Adrian city
MI Albion city
MI Alpena city
MI Big Rapids city
MI Cadillac city
MI Escanaba city
MI Grand Haven city
MI Marquette city
MI Midland city
MI Monroe city
MI Mount Pleasant city
MI Owosso city
MI Sturgis city
MI Traverse City city
MN Albert Lea city
MN Austin city
MN Bemidji city
MN Brainerd city
MN Faribault city
MN Fergus Falls city
MN Hastings city
MN Hutchinson city
MN Mankato city
MN Marshall city
MN New Ulm city
MN North Mankato city
MN Northfield city
MN Owatonna city
MN Stillwater city
MN Willmar city
MN Winona city
MO Cape Girardeau city
MO Farmington city
MO Hannibal city
MO Jefferson City city
MO Kennett city
MO Kirksville city
MO Marshall city
MO Maryville city
MO Poplar Bluff city
MO Rolla city
MO Sedalia city
MO Sikeston city
MO Warrensburg city
MO Washington city
MS Brookhaven city
MS Canton city
MS Clarksdale city
MS Cleveland city
MS Columbus city
MS Greenville city
MS Greenwood city
MS Grenada city
MS Indianola city
MS Laurel city
MS McComb city
MS Meridian city
MS Natchez city
MS Starkville city
MS Vicksburg city
MS Yazoo City city
MT Bozeman city
MT Havre city
MT Helena city
MT Kalispell city
NC Albemarle city
NC Asheboro city
NC Boone town
NC Eden city
NC Elizabeth City city
NC Havelock city
NC Henderson city
NC Kernersville town
NC Kinston city
NC Laurinburg city
NC Lenoir city
NC Lexington city
NC Lumberton city
NC Monroe city
NC New Bern city
NC Reidsville city
NC Roanoke Rapids city
NC Salisbury city
NC Sanford city
NC Shelby city
NC Statesville city
NC Tarboro town
NC Wilson city
ND Dickinson city
ND Jamestown city
ND Minot city
ND Williston city
NE Beatrice city
NE Columbus city
NE Fremont city
NE Grand Island city
NE Hastings city
NE Kearney city
NE Norfolk city
NE North Platte city
NE Scottsbluff city
NJ East Windsor township
NJ Plainsboro township
NJ Bridgeton city
NJ Princeton borough
NM Alamogordo city
NM Artesia city
NM Clovis city
NM Deming city
NM Farmington city
NM Gallup city
NM Hobbs city
NM Las Vegas city
NM Portales city
NM Roswell city
NM Silver City town
NV Elko city
NY Amsterdam city
NY Auburn city
NY Batavia city
NY Canandaigua city
NY Corning city
NY Cortland city
NY Dunkirk city
NY Fredonia village
NY Fulton city
NY Geneva city
NY Gloversville city
NY Jamestown city
NY Kingston city
NY Lockport city
NY Massena village
NY Middletown city
NY Ogdensburg city
NY Olean city
NY Oneonta city
NY Oswego city
NY Plattsburgh city
NY Potsdam village
NY Watertown city
OH Alliance city
OH Ashland city
OH Ashtabula city
OH Athens city
OH Bellefontaine city
OH Bowling Green city
OH Bucyrus city
OH Cambridge city
OH Chillicothe city
OH Circleville city
OH Coshocton city
OH Defiance city
OH Delaware city
OH Dover city
OH East Liverpool city
OH Findlay city
OH Fostoria city
OH Fremont city
OH Galion city
OH Greenville city
OH Lancaster city
OH Lebanon city
OH Marietta city
OH Marion city
OH Medina city
OH Mount Vernon city
OH New Philadelphia city
OH Norwalk city
OH Oxford city
OH Piqua city
OH Portsmouth city
OH Salem city
OH Sandusky city
OH Sidney city
OH Tiffin city
OH Troy city
OH Urbana city
OH Washington city
OH Wilmington city
OH Wooster city
OH Xenia city
OH Zanesville city
OK Ada city
OK Altus city
OK Bartlesville city
OK Chickasha city
OK Claremore city
OK McAlester city
OK Miami city
OK Muskogee city
OK Okmulgee city
OK Owasso city
OK Ponca City city
OK Stillwater city
OK Tahlequah city
OK Weatherford city
OR Albany city
OR Ashland city
OR Astoria city
OR Bend city
OR City of the Dalles city
OR Coos Bay city
OR Corvallis city
OR Grants Pass city
OR Hermiston city
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
OR Klamath Falls city
OR La Grande city
OR Lebanon city
OR McMinnville city
OR Newberg city
OR Pendleton city
OR Roseburg city
OR Woodburn city
PA Berwick borough
PA Bloomsburg town
PA Butler city
PA Carlisle borough
PA Chambersburg borough
PA Ephrata borough
PA Hanover borough
PA Hazleton city
PA Indiana borough
PA Lebanon city
PA Meadville city
PA New Castle city
PA Oil City city
PA Pottsville city
PA Sunbury city
PA Uniontown city
PA Warren city
RI Narragansett town
SC Clemson city
SC Easley city
SC Gaffney city
SC Greenwood city
SC Newberry town
SC Orangeburg city
SD Aberdeen city
SD Brookings city
SD Huron city
SD Mitchell city
SD Vermillion city
SD Watertown city
SD Yankton city
TN Brownsville city
TN Cleveland city
TN Collierville town
TN Cookeville city
TN Dyersburg city
TN Greeneville town
TN Lawrenceburg city
TN McMinnville city
TN Millington city
TN Morristown city
TN Murfreesboro city
TN Shelbyville city
TN Springfield city
TN Union City city
TX Alice city
TX Alvin city
TX Andrews city
TX Angleton city
TX Bay City city
TX Beeville city
TX Big Spring city
TX Borger city
TX Brenham city
TX Brownwood city
TX Burkburnett city
TX Canyon city
TX Cleburne city
TX Conroe city
TX Coppell city
TX Corsicana city
TX Del Rio city
TX Dumas city
TX Eagle Pass city
TX El Campo city
TX Gainesville city
TX Gatesville city
TX Georgetown city
TX Henderson city
TX Hereford city
TX Huntsville city
TX Jacksonville city
TX Kerrville city
TX Kingsville city
TX Lake Jackson city
TX Lamesa city
TX Levelland city
TX Lufkin city
TX Mercedes city
TX Mineral Wells city
TX Mount Pleasant city
TX Nacogdoches city
TX New Braunfels city
TX Palestine city
TX Pampa city
TX Pecos city
TX Plainview city
TX Port Lavaca city
TX Robstown city
TX Rosenberg city
TX Round Rock city
TX San Marcos city
TX Seguin city
TX Snyder city
TX Stephenville city
TX Sweetwater city
TX Taylor city
TX The Colony city
TX Uvalde city
TX Vernon city
TX Vidor city
UT Brigham City city
UT Cedar City city
UT Spanish Fork city
UT Tooele city
VA Blacksburg town
VA Christiansburg town
VA Front Royal town
VA Harrisonburg city
VA Leesburg town
VA Martinsville city
VA Radford city
VA Staunton city
VA Waynesboro city
VA Winchester city
VT Rutland city
WA Aberdeen city
WA Anacortes city
WA Centralia city
WA Ellensburg city
WA Moses Lake city
WA Mount Vernon city
68837
WA Oak Harbor city
WA Port Angeles city
WA Pullman city
WA Sunnyside city
WA Walla Walla city
WA Wenatchee city
WI Beaver Dam city
WI Fond du Lac city
WI Fort Atkinson city
WI Manitowoc city
WI Marinette city
WI Marshfield city
WI Menomonie city
WI Monroe city
WI Oconomowoc city
WI Stevens Point city
WI Sun Prairie city
WI Two Rivers city
WI Watertown city
WI West Bend city
WI Whitewater city
WI Wisconsin Rapids city
WV Beckley city
WV Bluefield city
WV Clarksburg city
WV Fairmont city
WV Martinsburg city
WV Morgantown city
WY Evanston city
WY Gillette city
WY Green River city
WY Laramie city
WY Rock Springs city
WY Sheridan city
For the reasons set forth in the
preamble, chapter I of title 40 of the
Code of Federal Regulations is amended
as follows:
PART 9—OMB APPROVALS UNDER
THE PAPERWORK REDUCTION ACT
1. The authority citation for part 9
continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136–136y;
15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671;
21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318,
1321, 1326, 1330, 1342, 1344, 1345 (d) and
(e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
1971–1975 Comp. p. 973; 42 U.S.C. 241,
242b, 243, 246, 300f, 300g, 300g–1, 300g–2,
300g–3, 300g–4, 300g–5, 300g–6, 300j–1,
300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq.,
6901–6992k, 7401–7671q, 7542, 9601–9657,
11023, 11048.
2. In § 9.1 the table is amended by
adding entries in numerical order under
the indicated heading to read as follows:
§ 9.1 OMB approvals under the Paperwork
Reduction Act.
* * * * *
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68838 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
40 CFR citation
* * * * * * *
EPA Administered Permit Programs: The National Pollutant Discharge Elimination System
OMB control
No.
* * * * * * *
122.26(g) .............................................................................................................................................................................................. 2040–0211
* * * * * * *
State Permit Requirements
* * * * * * *
123.35(b) .............................................................................................................................................................................................. 2040–0211
* * * * * * *
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 122
continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq.
2. Revise § 122.21(c)(1) to read as
follows:
§ 122.21 Application for a permit
(applicable to State programs, see § 123.25).
* * * * *
(c) Time to apply. (1) Any person
proposing a new discharge, shall submit
an application at least 180 days before
the date on which the discharge is to
commence, unless permission for a later
date has been granted by the Director.
Facilities proposing a new discharge of
storm water associated with industrial
activity shall submit an application 180
days before that facility commences
industrial activity which may result in
a discharge of storm water associated
with that industrial activity. Facilities
described under § 122.26(b)(14)(x) or
(b)(15)(i) shall submit applications at
least 90 days before the date on which
construction is to commence. Different
submittal dates may be required under
the terms of applicable general permits.
Persons proposing a new discharge are
encouraged to submit their applications
well in advance of the 90 or 180 day
requirements to avoid delay. See also
paragraph (k) of this section and
§ 122.26(c)(1)(i)(G) and (c)(1)(ii).
* * * * *
3. Amend § 122.26 as follows:
a. Revise paragraphs (a)(9), (b)(4)(i),
(b)(7)(i), (b)(14) introductory text,
(b)(14)(x), (b)(14)(xi);
b. Redesignate paragraph (b)(15) as
paragraph (b)(20) and add new
paragraphs (b)(15) through (b)(19);
c. Revise the heading for paragraph
(c), the first sentence of paragraph (c)(1)
introductory text, the first sentence of
paragraph (c)(1)(ii) introductory text,
paragraphs (e) heading and introductory
text, (e)(1), (e)(5) introductory text, and
(e)(5)(i);
d. Add paragraphs (e)(8) and (e)(9);
and e. Revise paragraphs (f)(4), (f)(5), and
(g). The additions and revisions read as
follows:
§ 122.26 Storm water discharges
(applicable to State NPDES programs, see
§ 123.25).
(a) * * *
(9)(i) On and after October 1, 1994, for
discharges composed entirely of storm
water, that are not required by
paragraph (a)(1) of this section to obtain
a permit, operators shall be required to
obtain a NPDES permit only if:
(A) The discharge is from a small MS4
required to be regulated pursuant to
§ 122.32;
(B) The discharge is a storm water
discharge associated with small
construction activity pursuant to
paragraph (b)(15) of this section;
(C) The Director, or in States with
approved NPDES programs either the
Director or the EPA Regional
Administrator, determines that storm
water controls are needed for the
discharge based on wasteload
allocations that are part of ‘‘total
maximum daily loads’’ (TMDLs) that
address the pollutant(s) of concern; or
(D) The Director, or in States with
approved NPDES programs either the
Director or the EPA Regional
Administrator, determines that the
discharge, or category of discharges
within a geographic area, contributes to
a violation of a water quality standard
or is a significant contributor of
pollutants to waters of the United
States.
(ii) Operators of small MS4s
designated pursuant to paragraphs
(a)(9)(i)(A), (a)(9)(i)(C), and (a)(9)(i)(D) of
this section shall seek coverage under
an NPDES permit in accordance with
§§ 122.33 through 122.35. Operators of
non-municipal sources designated
pursuant to paragraphs (a)(9)(i)(B),
(a)(9)(i)(C), and (a)(9)(i)(D) of this
section shall seek coverage under an
NPDES permit in accordance with
paragraph (c)(1) of this section.
(iii) Operators of storm water
discharges designated pursuant to
paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) of
this section shall apply to the Director
for a permit within 180 days of receipt
of notice, unless permission for a later
date is granted by the Director (see
§ 124.52(c) of this chapter).
(b) * * *
(4) * * *
(i) Located in an incorporated place
with a population of 250,000 or more as
determined by the 1990 Decennial
Census by the Bureau of the Census
(Appendix F of this part); or
* * * * *
(7) * * *
(i) Located in an incorporated place
with a population of 100,000 or more
but less than 250,000, as determined by
the 1990 Decennial Census by the
Bureau of the Census (Appendix G of
this part); or
* * * * *
(14) Storm water discharge associated
with industrial activity means the
discharge from any conveyance that is
used for collecting and conveying storm
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
water and that is directly related to
manufacturing, processing or raw
materials storage areas at an industrial
plant. The term does not include
discharges from facilities or activities
excluded from the NPDES program
under this part 122. For the categories
of industries identified in this section,
the term includes, but is not limited to,
storm water discharges from industrial
plant yards; immediate access roads and
rail lines used or traveled by carriers of
raw materials, manufactured products,
waste material, or by-products used or
created by the facility; material handling
sites; refuse sites; sites used for the
application or disposal of process waste
waters (as defined at part 401 of this
chapter); sites used for the storage and
maintenance of material handling
equipment; sites used for residual
treatment, storage, or disposal; shipping
and receiving areas; manufacturing
buildings; storage areas (including tank
farms) for raw materials, and
intermediate and final products; and
areas where industrial activity has taken
place in the past and significant
materials remain and are exposed to
storm water. For the purposes of this
paragraph, material handling activities
include storage, loading and unloading,
transportation, or conveyance of any
raw material, intermediate product,
final product, by-product or waste
product. The term excludes areas
located on plant lands separate from the
plant’s industrial activities, such as
office buildings and accompanying
parking lots as long as the drainage from
the excluded areas is not mixed with
storm water drained from the above
described areas. Industrial facilities
(including industrial facilities that are
federally, State, or municipally owned
or operated that meet the description of
the facilities listed in paragraphs
(b)(14)(i) through (xi) of this section)
include those facilities designated under
the provisions of paragraph (a)(1)(v) of
this section. The following categories of
facilities are considered to be engaging
in ‘‘industrial activity’’ for purposes of
paragraph (b)(14):
* * * * *
(x) Construction activity including
clearing, grading and excavation, except
operations that result in the disturbance
of less than five acres of total land area.
Construction activity also includes the
disturbance of less than five acres of
total land area that is a part of a larger
common plan of development or sale if
the larger common plan will ultimately
disturb five acres or more;
(xi) Facilities under Standard
Industrial Classifications 20, 21, 22, 23,
2434, 25, 265, 267, 27, 283, 285, 30, 31
(except 311), 323, 34 (except 3441), 35,
36, 37 (except 373), 38, 39, and 4221–
25;
(15) Storm water discharge associated
with small construction activity means
the discharge of storm water from:
(i) Construction activities including
clearing, grading, and excavating that
result in land disturbance of equal to or
greater than one acre and less than five
acres. Small construction activity also
includes the disturbance of less than
one acre of total land area that is part
of a larger common plan of development
or sale if the larger common plan will
ultimately disturb equal to or greater
than one and less than five acres. Small
construction activity does not include
routine maintenance that is performed
to maintain the original line and grade,
hydraulic capacity, or original purpose
of the facility. The Director may waive
the otherwise applicable requirements
in a general permit for a storm water
discharge from construction activities
that disturb less than five acres where:
(A) The value of the rainfall erosivity
factor (‘‘R’’ in the Revised Universal Soil
Loss Equation) is less than five during
the period of construction activity. The
rainfall erosivity factor is determined in
accordance with Chapter 2 of
Agriculture Handbook Number 703,
Predicting Soil Erosion by Water: A
Guide to Conservation Planning With
the Revised Universal Soil Loss
Equation (RUSLE), pages 21–64, dated
January 1997. The Director of the
Federal Register approves this
incorporation by reference in
accordance with 5 U.S.C 552(a) and 1
CFR part 51. Copies may be obtained
68839
from EPA’s Water Resource Center, Mail
Code RC4100, 401 M St. S.W.,
Washington, DC 20460. A copy is also
available for inspection at the U.S. EPA
Water Docket , 401 M Street S.W.,
Washington, DC. 20460, or the Office of
the Federal Register, 800 N. Capitol
Street N.W. Suite 700, Washington, DC.
An operator must certify to the Director
that the construction activity will take
place during a period when the value of
the rainfall erosivity factor is less than
five; or
(B) Storm water controls are not
needed based on a ‘‘total maximum
daily load’’ (TMDL) approved or
established by EPA that addresses the
pollutant(s) of concern or, for nonimpaired
waters that do not require
TMDLs, an equivalent analysis that
determines allocations for small
construction sites for the pollutant(s) of
concern or that determines that such
allocations are not needed to protect
water quality based on consideration of
existing in-stream concentrations,
expected growth in pollutant
contributions from all sources, and a
margin of safety. For the purpose of this
paragraph, the pollutant(s) of concern
include sediment or a parameter that
addresses sediment (such as total
suspended solids, turbidity or siltation)
and any other pollutant that has been
identified as a cause of impairment of
any water body that will receive a
discharge from the construction activity.
The operator must certify to the Director
that the construction activity will take
place, and storm water discharges will
occur, within the drainage area
addressed by the TMDL or equivalent
analysis.
(ii) Any other construction activity
designated by the Director, or in States
with approved NPDES programs either
the Director or the EPA Regional
Administrator, based on the potential
for contribution to a violation of a water
quality standard or for significant
contribution of pollutants to waters of
the United States.
EXHIBIT 1 TO § 122.26(B)(15).—SUMMARY OF COVERAGE OF ‘‘STORM WATER DISCHARGES ASSOCIATED WITH SMALL
CONSTRUCTION ACTIVITY’’ UNDER THE NPDES STORM WATER PROGRAM
Automatic Designation: Required Nationwide
Coverage.
Potential Designation: Optional Evaluation and
Designation by the NPDES Permitting Authority
or EPA Regional Administrator..
• Construction activities that result in a land disturbance of equal to or greater than one acre
and less than five acres.
• Construction activities disturbing less than one acre if part of a larger common plan of development
or sale with a planned disturbance of equal to or greater than one acre and less
than five acres. (see § 122.26(b)(15)(i).)
• Construction activities that result in a land disturbance of less than one acre based on the
potential for contribution to a violation of a water quality standard or for significant contribution
of pollutants. (see § 122.26(b)(15)(ii).)
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68840 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
EXHIBIT 1 TO § 122.26(B)(15).—SUMMARY OF COVERAGE OF ‘‘STORM WATER DISCHARGES ASSOCIATED WITH SMALL
CONSTRUCTION ACTIVITY’’ UNDER THE NPDES STORM WATER PROGRAM—Continued
Potential Waiver: Waiver from Requirements as
Determined by the NPDES Permitting Authority..
(16) Small municipal separate storm
sewer system means all separate storm
sewers that are:
(i) Owned or operated by the United
States, a State, city, town, borough,
county, parish, district, association, or
other public body (created by or
pursuant to State law) having
jurisdiction over disposal of sewage,
industrial wastes, storm water, or other
wastes, including special districts under
State law such as a sewer district, flood
control district or drainage district, or
similar entity, or an Indian tribe or an
authorized Indian tribal organization, or
a designated and approved management
agency under section 208 of the CWA
that discharges to waters of the United
States.
(ii) Not defined as ‘‘large’’ or
‘‘medium’’ municipal separate storm
sewer systems pursuant to paragraphs
(b)(4) and (b)(7) of this section, or
designated under paragraph (a)(1)(v) of
this section.
(iii) This term includes systems
similar to separate storm sewer systems
in municipalities, such as systems at
military bases, large hospital or prison
complexes, and highways and other
thoroughfares. The term does not
include separate storm sewers in very
discrete areas, such as individual
buildings.
(17) Small MS4 means a small
municipal separate storm sewer system.
(18) Municipal separate storm sewer
system means all separate storm sewers
that are defined as ‘‘large’’ or ‘‘medium’’
or ‘‘small’’ municipal separate storm
sewer systems pursuant to paragraphs
(b)(4), (b)(7), and (b)(16) of this section,
or designated under paragraph (a)(1)(v)
of this section.
(19) MS4 means a municipal separate
storm sewer system.
* * * * *
(c) Application requirements for storm
water discharges associated with
industrial activity and storm water
discharges associated with small
construction activity—(1) Individual
application. Dischargers of storm water
associated with industrial activity and
with small construction activity are
required to apply for an individual
permit or seek coverage under a
promulgated storm water general
permit. * * *
* * * * *
Any automatically designated construction activity where the operator certifies: (1) A rainfall
erosivity factor of less than five, or (2) That the activity will occur within an area where controls
are not needed based on a TMDL or, for non-impaired waters that do not require a
TMDL, an equivalent analysis for the pollutant(s) of concern. (see § 122.26(b)(15)(i).)
(ii) An operator of an existing or new
storm water discharge that is associated
with industrial activity solely under
paragraph (b)(14)(x) of this section or is
associated with small construction
activity solely under paragraph (b)(15)
of this section, is exempt from the
requirements of § 122.21(g) and
paragraph (c)(1)(i) of this section. * * *
* * * * *
(e) Application deadlines. Any
operator of a point source required to
obtain a permit under this section that
does not have an effective NPDES
permit authorizing discharges from its
storm water outfalls shall submit an
application in accordance with the
following deadlines:
(1) Storm water discharges associated
with industrial activity. (i) Except as
provided in paragraph (e)(1)(ii) of this
section, for any storm water discharge
associated with industrial activity
identified in paragraphs (b)(14)(i)
through (xi) of this section, that is not
part of a group application as described
in paragraph (c)(2) of this section or that
is not authorized by a storm water
general permit, a permit application
made pursuant to paragraph (c) of this
section must be submitted to the
Director by October 1, 1992;
(ii) For any storm water discharge
associated with industrial activity from
a facility that is owned or operated by
a municipality with a population of less
than 100,000 that is not authorized by
a general or individual permit, other
than an airport, powerplant, or
uncontrolled sanitary landfill, the
permit application must be submitted to
the Director by March 10, 2003.
* * * * *
(5) A permit application shall be
submitted to the Director within 180
days of notice, unless permission for a
later date is granted by the Director (see
§ 124.52(c) of this chapter), for:
(i) A storm water discharge that the
Director, or in States with approved
NPDES programs, either the Director or
the EPA Regional Administrator,
determines that the discharge
contributes to a violation of a water
quality standard or is a significant
contributor of pollutants to waters of the
United States (see paragraphs (a)(1)(v)
and (b)(15)(ii) of this section);
* * * * *
(8) For any storm water discharge
associated with small construction
activity identified in paragraph (b)(15)(i)
of this section, see § 122.21(c)(1).
Discharges from these sources require
permit authorization by March 10, 2003,
unless designated for coverage before
then.
(9) For any discharge from a regulated
small MS4, the permit application made
under § 122.33 must be submitted to the
Director by:
(i) March 10, 2003 if designated under
§ 122.32(a)(1) unless your MS4 serves a
jurisdiction with a population under
10,000 and the NPDES permitting
authority has established a phasing
schedule under § 123.35(d)(3) (see
§ 122.33(c)(1)); or
(ii) Within 180 days of notice, unless
the NPDES permitting authority grants a
later date, if designated under
§ 122.32(a)(2) (see § 122.33(c)(2)).
(f) * * *
(4) Any person may petition the
Director for the designation of a large,
medium, or small municipal separate
storm sewer system as defined by
paragraph (b)(4)(iv), (b)(7)(iv), or (b)(16)
of this section.
(5) The Director shall make a final
determination on any petition received
under this section within 90 days after
receiving the petition with the
exception of petitions to designate a
small MS4 in which case the Director
shall make a final determination on the
petition within 180 days after its
receipt.
(g) Conditional exclusion for ‘‘no
exposure’’ of industrial activities and
materials to storm water. Discharges
composed entirely of storm water are
not storm water discharges associated
with industrial activity if there is ‘‘no
exposure’’ of industrial materials and
activities to rain, snow, snowmelt and/
or runoff, and the discharger satisfies
the conditions in paragraphs (g)(1)
through (g)(4) of this section. ‘‘No
exposure’’ means that all industrial
materials and activities are protected by
a storm resistant shelter to prevent
exposure to rain, snow, snowmelt, and/
or runoff. Industrial materials or
activities include, but are not limited to,
material handling equipment or
activities, industrial machinery, raw
materials, intermediate products, byproducts,
final products, or waste
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
products. Material handling activities
include the storage, loading and
unloading, transportation, or
conveyance of any raw material,
intermediate product, final product or
waste product.
(1) Qualification. To qualify for this
exclusion, the operator of the discharge
must:
(i) Provide a storm resistant shelter to
protect industrial materials and
activities from exposure to rain, snow,
snow melt, and runoff;
(ii) Complete and sign (according to
§ 122.22) a certification that there are no
discharges of storm water contaminated
by exposure to industrial materials and
activities from the entire facility, except
as provided in paragraph (g)(2) of this
section;
(iii) Submit the signed certification to
the NPDES permitting authority once
every five years;
(iv) Allow the Director to inspect the
facility to determine compliance with
the ‘‘no exposure’’ conditions;
(v) Allow the Director to make any
‘‘no exposure’’ inspection reports
available to the public upon request;
and
(vi) For facilities that discharge
through an MS4, upon request, submit
a copy of the certification of ‘‘no
exposure’’ to the MS4 operator, as well
as allow inspection and public reporting
by the MS4 operator.
(2) Industrial materials and activities
not requiring storm resistant shelter. To
qualify for this exclusion, storm
resistant shelter is not required for:
(i) Drums, barrels, tanks, and similar
containers that are tightly sealed,
provided those containers are not
deteriorated and do not leak (‘‘Sealed’’
means banded or otherwise secured and
without operational taps or valves);
(ii) Adequately maintained vehicles
used in material handling; and
(iii) Final products, other than
products that would be mobilized in
storm water discharge (e.g., rock salt).
(3) Limitations. (i) Storm water
discharges from construction activities
identified in paragraphs (b)(14)(x) and
(b)(15) are not eligible for this
conditional exclusion.
(ii) This conditional exclusion from
the requirement for an NPDES permit is
available on a facility-wide basis only,
not for individual outfalls. If a facility
has some discharges of storm water that
would otherwise be ‘‘no exposure’’
discharges, individual permit
requirements should be adjusted
accordingly.
(iii) If circumstances change and
industrial materials or activities become
exposed to rain, snow, snow melt, and/
or runoff, the conditions for this
exclusion no longer apply. In such
cases, the discharge becomes subject to
enforcement for un-permitted discharge.
Any conditionally exempt discharger
who anticipates changes in
circumstances should apply for and
obtain permit authorization prior to the
change of circumstances.
(iv) Notwithstanding the provisions of
this paragraph, the NPDES permitting
authority retains the authority to require
permit authorization (and deny this
exclusion) upon making a determination
that the discharge causes, has a
reasonable potential to cause, or
contributes to an instream excursion
above an applicable water quality
standard, including designated uses.
(4) Certification. The no exposure
certification must require the
submission of the following
information, at a minimum, to aid the
NPDES permitting authority in
determining if the facility qualifies for
the no exposure exclusion:
(i) The legal name, address and phone
number of the discharger (see
§ 122.21(b));
(ii) The facility name and address, the
county name and the latitude and
longitude where the facility is located;
(iii) The certification must indicate
that none of the following materials or
activities are, or will be in the
foreseeable future, exposed to
precipitation:
(A) Using, storing or cleaning
industrial machinery or equipment, and
areas where residuals from using,
storing or cleaning industrial machinery
or equipment remain and are exposed to
storm water;
(B) Materials or residuals on the
ground or in storm water inlets from
spills/leaks;
(C) Materials or products from past
industrial activity;
(D) Material handling equipment
(except adequately maintained
vehicles);
(E) Materials or products during
loading/unloading or transporting
activities;
(F) Materials or products stored
outdoors (except final products
intended for outside use, e.g., new cars,
where exposure to storm water does not
result in the discharge of pollutants);
(G) Materials contained in open,
deteriorated or leaking storage drums,
barrels, tanks, and similar containers;
(H) Materials or products handled/
stored on roads or railways owned or
maintained by the discharger;
(I) Waste material (except waste in
covered, non-leaking containers, e.g.,
dumpsters);
68841
(J) Application or disposal of process
wastewater (unless otherwise
permitted); and
(K) Particulate matter or visible
deposits of residuals from roof stacks/
vents not otherwise regulated, i.e.,
under an air quality control permit, and
evident in the storm water outflow;
(iv) All ‘‘no exposure’’ certifications
must include the following certification
statement, and be signed in accordance
with the signatory requirements of
§ 122.22: ‘‘I certify under penalty of law
that I have read and understand the
eligibility requirements for claiming a
condition of ‘‘no exposure’’ and
obtaining an exclusion from NPDES
storm water permitting; and that there
are no discharges of storm water
contaminated by exposure to industrial
activities or materials from the
industrial facility identified in this
document (except as allowed under
paragraph (g)(2)) of this section. I
understand that I am obligated to submit
a no exposure certification form once
every five years to the NPDES
permitting authority and, if requested,
to the operator of the local MS4 into
which this facility discharges (where
applicable). I understand that I must
allow the NPDES permitting authority,
or MS4 operator where the discharge is
into the local MS4, to perform
inspections to confirm the condition of
no exposure and to make such
inspection reports publicly available
upon request. I understand that I must
obtain coverage under an NPDES permit
prior to any point source discharge of
storm water from the facility. I certify
under penalty of law that this document
and all attachments were prepared
under my direction or supervision in
accordance with a system designed to
assure that qualified personnel properly
gathered and evaluated the information
submitted. Based upon my inquiry of
the person or persons who manage the
system, or those persons directly
involved in gathering the information,
the information submitted is to the best
of my knowledge and belief true,
accurate and complete. I am aware there
are significant penalties for submitting
false information, including the
possibility of fine and imprisonment for
knowing violations.’’
4. Revise § 122.28(b)(2)(v) to read as
follows:
§ 122.28 General permits (applicable to
State NPDES programs, see § 123.25).
* * * * *
(b) * * *
(2) * * *
(v) Discharges other than discharges
from publicly owned treatment works,
combined sewer overflows, municipal
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68842 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
separate storm sewer systems, primary
industrial facilities, and storm water
discharges associated with industrial
activity, may, at the discretion of the
Director, be authorized to discharge
under a general permit without
submitting a notice of intent where the
Director finds that a notice of intent
requirement would be inappropriate. In
making such a finding, the Director
shall consider: the type of discharge; the
expected nature of the discharge; the
potential for toxic and conventional
pollutants in the discharges; the
expected volume of the discharges;
other means of identifying discharges
covered by the permit; and the
estimated number of discharges to be
covered by the permit. The Director
shall provide in the public notice of the
general permit the reasons for not
requiring a notice of intent.
* * * * *
5. Add §§ 122.30 through 122.37 to
subpart B to read as follows:
§ 122.30 What are the objectives of the
storm water regulations for small MS4s?
(a) Sections 122.30 through 122.37 are
written in a ‘‘readable regulation’’
format that includes both rule
requirements and EPA guidance that is
not legally binding. EPA has clearly
distinguished its recommended
guidance from the rule requirements by
putting the guidance in a separate
paragraph headed by the word
‘‘guidance’’.
(b) Under the statutory mandate in
section 402(p)(6) of the Clean Water Act,
the purpose of this portion of the storm
water program is to designate additional
sources that need to be regulated to
protect water quality and to establish a
comprehensive storm water program to
regulate these sources. (Because the
storm water program is part of the
National Pollutant Discharge
Elimination System (NPDES) Program,
you should also refer to § 122.1 which
addresses the broader purpose of the
NPDES program.)
(c) Storm water runoff continues to
harm the nation’s waters. Runoff from
lands modified by human activities can
harm surface water resources in several
ways including by changing natural
hydrologic patterns and by elevating
pollutant concentrations and loadings.
Storm water runoff may contain or
mobilize high levels of contaminants,
such as sediment, suspended solids,
nutrients, heavy metals, pathogens,
toxins, oxygen-demanding substances,
and floatables.
(d) EPA strongly encourages
partnerships and the watershed
approach as the management framework
for efficiently, effectively, and
consistently protecting and restoring
aquatic ecosystems and protecting
public health.
§ 122.31 As a Tribe, what is my role under
the NPDES storm water program?
As a Tribe you may:
(a) Be authorized to operate the
NPDES program including the storm
water program, after EPA determines
that you are eligible for treatment in the
same manner as a State under §§ 123.31
through 123.34 of this chapter. (If you
do not have an authorized NPDES
program, EPA implements the program
for discharges on your reservation as
well as other Indian country, generally.);
(b) Be classified as an owner of a
regulated small MS4, as defined in
§ 122.32. (Designation of your Tribe as
an owner of a small MS4 for purposes
of this part is an approach that is
consistent with EPA’s 1984 Indian
Policy of operating on a government-togovernment
basis with EPA looking to
Tribes as the lead governmental
authorities to address environmental
issues on their reservations as
appropriate. If you operate a separate
storm sewer system that meets the
definition of a regulated small MS4, you
are subject to the requirements under
§§ 122.33 through 122.35. If you are not
designated as a regulated small MS4,
you may ask EPA to designate you as
such for the purposes of this part.); or
(c) Be a discharger of storm water
associated with industrial activity or
small construction activity under
§§ 122.26(b)(14) or (b)(15), in which
case you must meet the applicable
requirements. Within Indian country,
the NPDES permitting authority is
generally EPA, unless you are
authorized to administer the NPDES
program.
§ 122.32 As an operator of a small MS4,
am I regulated under the NPDES storm
water program?
(a) Unless you qualify for a waiver
under paragraph (c) of this section, you
are regulated if you operate a small
MS4, including but not limited to
systems operated by federal, State,
Tribal, and local governments,
including State departments of
transportation; and:
(1) Your small MS4 is located in an
urbanized area as determined by the
latest Decennial Census by the Bureau
of the Census. (If your small MS4 is not
located entirely within an urbanized
area, only the portion that is within the
urbanized area is regulated); or
(2) You are designated by the NPDES
permitting authority, including where
the designation is pursuant to
§§ 123.35(b)(3) and (b)(4) of this chapter,
or is based upon a petition under
§ 122.26(f).
(b) You may be the subject of a
petition to the NPDES permitting
authority to require an NPDES permit
for your discharge of storm water. If the
NPDES permitting authority determines
that you need a permit, you are required
to comply with §§ 122.33 through
122.35.
(c) The NPDES permitting authority
may waive the requirements otherwise
applicable to you if you meet the criteria
of paragraph (d) or (e) of this section. If
you receive a waiver under this section,
you may subsequently be required to
seek coverage under an NPDES permit
in accordance with § 122.33(a) if
circumstances change. (See also
§ 123.35(b) of this chapter.)
(d) The NPDES permitting authority
may waive permit coverage if your MS4
serves a population of less than 1,000
within the urbanized area and you meet
the following criteria:
(1) Your system is not contributing
substantially to the pollutant loadings of
a physically interconnected MS4 that is
regulated by the NPDES storm water
program (see § 123.35(b)(4) of this
chapter); and
(2) If you discharge any pollutant(s)
that have been identified as a cause of
impairment of any water body to which
you discharge, storm water controls are
not needed based on wasteload
allocations that are part of an EPA
approved or established ‘‘total
maximum daily load’’ (TMDL) that
addresses the pollutant(s) of concern.
(e) The NPDES permitting authority
may waive permit coverage if your MS4
serves a population under 10,000 and
you meet the following criteria:
(1) The permitting authority has
evaluated all waters of the U.S.,
including small streams, tributaries,
lakes, and ponds, that receive a
discharge from your MS4;
(2) For all such waters, the permitting
authority has determined that storm
water controls are not needed based on
wasteload allocations that are part of an
EPA approved or established TMDL that
addresses the pollutant(s) of concern or,
if a TMDL has not been developed or
approved, an equivalent analysis that
determines sources and allocations for
the pollutant(s) of concern;
(3) For the purpose of this paragraph
(e), the pollutant(s) of concern include
biochemical oxygen demand (BOD),
sediment or a parameter that addresses
sediment (such as total suspended
solids, turbidity or siltation), pathogens,
oil and grease, and any pollutant that
has been identified as a cause of
impairment of any water body that will
receive a discharge from your MS4; and
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
(4) The permitting authority has
determined that future discharges from
your MS4 do not have the potential to
result in exceedances of water quality
standards, including impairment of
designated uses, or other significant
water quality impacts, including habitat
and biological impacts.
§ 122.33 If I am an operator of a regulated
small MS4, how do I apply for an NPDES
permit and when do I have to apply?
(a) If you operate a regulated small
MS4 under § 122.32, you must seek
coverage under a NPDES permit issued
by your NPDES permitting authority. If
you are located in an NPDES authorized
State, Tribe, or Territory, then that State,
Tribe, or Territory is your NPDES
permitting authority. Otherwise, your
NPDES permitting authority is the EPA
Regional Office.
(b) You must seek authorization to
discharge under a general or individual
NPDES permit, as follows:
(1) If your NPDES permitting
authority has issued a general permit
applicable to your discharge and you are
seeking coverage under the general
permit, you must submit a Notice of
Intent (NOI) that includes the
information on your best management
practices and measurable goals required
by § 122.34(d). You may file your own
NOI, or you and other municipalities or
governmental entities may jointly
submit an NOI. If you want to share
responsibilities for meeting the
minimum measures with other
municipalities or governmental entities,
you must submit an NOI that describes
which minimum measures you will
implement and identify the entities that
will implement the other minimum
measures within the area served by your
MS4. The general permit will explain
any other steps necessary to obtain
permit authorization.
(2)(i) If you are seeking authorization
to discharge under an individual permit
and wish to implement a program under
§ 122.34, you must submit an
application to your NPDES permitting
authority that includes the information
required under §§ 122.21(f) and
122.34(d), an estimate of square mileage
served by your small MS4, and any
additional information that your NPDES
permitting authority requests. A storm
sewer map that satisfies the requirement
of § 122.34(b)(3)(i) will satisfy the map
requirement in § 122.21(f)(7).
(ii) If you are seeking authorization to
discharge under an individual permit
and wish to implement a program that
is different from the program under
§ 122.34, you will need to comply with
the permit application requirements of
§ 122.26(d). You must submit both Parts
of the application requirements in
§§ 122.26(d)(1) and (2) by March 10,
2003. You do not need to submit the
information required by
§§ 122.26(d)(1)(ii) and (d)(2) regarding
your legal authority, unless you intend
for the permit writer to take such
information into account when
developing your other permit
conditions.
(iii) If allowed by your NPDES
permitting authority, you and another
regulated entity may jointly apply under
either paragraph (b)(2)(i) or (b)(2)(ii) of
this section to be co-permittees under an
individual permit.
(3) If your small MS4 is in the same
urbanized area as a medium or large
MS4 with an NPDES storm water permit
and that other MS4 is willing to have
you participate in its storm water
program, you and the other MS4 may
jointly seek a modification of the other
MS4 permit to include you as a limited
co-permittee. As a limited co-permittee,
you will be responsible for compliance
with the permit’s conditions applicable
to your jurisdiction. If you choose this
option you will need to comply with the
permit application requirements of
§ 122.26, rather than the requirements of
§ 122.34. You do not need to comply
with the specific application
requirements of § 122.26(d)(1)(iii) and
(iv) and (d)(2)(iii) (discharge
characterization). You may satisfy the
requirements in § 122.26 (d)(1)(v) and
(d)(2)(iv) (identification of a
management program) by referring to
the other MS4’s storm water
management program.
(4) Guidance: In referencing an MS4’s
storm water management program, you
should briefly describe how the existing
plan will address discharges from your
small MS4 or would need to be
supplemented in order to adequately
address your discharges. You should
also explain your role in coordinating
storm water pollutant control activities
in your MS4, and detail the resources
available to you to accomplish the plan.
(c) If you operate a regulated small
MS4:
(1) Designated under § 122.32(a)(1),
you must apply for coverage under an
NPDES permit, or apply for a
modification of an existing NPDES
permit under paragraph (b)(3) of this
section by March 10, 2003, unless your
MS4 serves a jurisdiction with a
population under 10,000 and the
NPDES permitting authority has
established a phasing schedule under
§ 123.35(d)(3) of this chapter.
(2) Designated under § 122.32(a)(2),
you must apply for coverage under an
NPDES permit, or apply for a
modification of an existing NPDES
68843
permit under paragraph (b)(3) of this
section, within 180 days of notice,
unless the NPDES permitting authority
grants a later date.
§ 122.34 As an operator of a regulated
small MS4, what will my NPDES MS4 storm
water permit require?
(a) Your NPDES MS4 permit will
require at a minimum that you develop,
implement, and enforce a storm water
management program designed to
reduce the discharge of pollutants from
your MS4 to the maximum extent
practicable (MEP), to protect water
quality, and to satisfy the appropriate
water quality requirements of the Clean
Water Act. Your storm water
management program must include the
minimum control measures described in
paragraph (b) of this section unless you
apply for a permit under § 122.26(d).
For purposes of this section, narrative
effluent limitations requiring
implementation of best management
practices (BMPs) are generally the most
appropriate form of effluent limitations
when designed to satisfy technology
requirements (including reductions of
pollutants to the maximum extent
practicable) and to protect water quality.
Implementation of best management
practices consistent with the provisions
of the storm water management program
required pursuant to this section and
the provisions of the permit required
pursuant to § 122.33 constitutes
compliance with the standard of
reducing pollutants to the ‘‘maximum
extent practicable.’’ Your NPDES
permitting authority will specify a time
period of up to 5 years from the date of
permit issuance for you to develop and
implement your program.
(b) Minimum control measures—(1)
Public education and outreach on storm
water impacts. (i) You must implement
a public education program to distribute
educational materials to the community
or conduct equivalent outreach
activities about the impacts of storm
water discharges on water bodies and
the steps that the public can take to
reduce pollutants in storm water runoff.
(ii) Guidance: You may use storm
water educational materials provided by
your State, Tribe, EPA, environmental,
public interest or trade organizations, or
other MS4s. The public education
program should inform individuals and
households about the steps they can
take to reduce storm water pollution,
such as ensuring proper septic system
maintenance, ensuring the proper use
and disposal of landscape and garden
chemicals including fertilizers and
pesticides, protecting and restoring
riparian vegetation, and properly
disposing of used motor oil or
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68844 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
household hazardous wastes. EPA
recommends that the program inform
individuals and groups how to become
involved in local stream and beach
restoration activities as well as activities
that are coordinated by youth service
and conservation corps or other citizen
groups. EPA recommends that the
public education program be tailored,
using a mix of locally appropriate
strategies, to target specific audiences
and communities. Examples of
strategies include distributing brochures
or fact sheets, sponsoring speaking
engagements before community groups,
providing public service
announcements, implementing
educational programs targeted at school
age children, and conducting
community-based projects such as storm
drain stenciling, and watershed and
beach cleanups. In addition, EPA
recommends that some of the materials
or outreach programs be directed toward
targeted groups of commercial,
industrial, and institutional entities
likely to have significant storm water
impacts. For example, providing
information to restaurants on the impact
of grease clogging storm drains and to
garages on the impact of oil discharges.
You are encouraged to tailor your
outreach program to address the
viewpoints and concerns of all
communities, particularly minority and
disadvantaged communities, as well as
any special concerns relating to
children.
(2) Public involvement/participation.
(i) You must, at a minimum, comply
with State, Tribal and local public
notice requirements when
implementing a public involvement/
participation program.
(ii) Guidance: EPA recommends that
the public be included in developing,
implementing, and reviewing your
storm water management program and
that the public participation process
should make efforts to reach out and
engage all economic and ethnic groups.
Opportunities for members of the public
to participate in program development
and implementation include serving as
citizen representatives on a local storm
water management panel, attending
public hearings, working as citizen
volunteers to educate other individuals
about the program, assisting in program
coordination with other pre-existing
programs, or participating in volunteer
monitoring efforts. (Citizens should
obtain approval where necessary for
lawful access to monitoring sites.)
(3) Illicit discharge detection and
elimination. (i) You must develop,
implement and enforce a program to
detect and eliminate illicit discharges
(as defined at § 122.26(b)(2)) into your
small MS4.
(ii) You must:
(A) Develop, if not already completed,
a storm sewer system map, showing the
location of all outfalls and the names
and location of all waters of the United
States that receive discharges from those
outfalls;
(B) To the extent allowable under
State, Tribal or local law, effectively
prohibit, through ordinance, or other
regulatory mechanism, non-storm water
discharges into your storm sewer system
and implement appropriate enforcement
procedures and actions;
(C) Develop and implement a plan to
detect and address non-storm water
discharges, including illegal dumping,
to your system; and
(D) Inform public employees,
businesses, and the general public of
hazards associated with illegal
discharges and improper disposal of
waste.
(iii) You need address the following
categories of non-storm water discharges
or flows (i.e., illicit discharges) only if
you identify them as significant
contributors of pollutants to your small
MS4: water line flushing, landscape
irrigation, diverted stream flows, rising
ground waters, uncontaminated ground
water infiltration (as defined at 40 CFR
35.2005(20)), uncontaminated pumped
ground water, discharges from potable
water sources, foundation drains, air
conditioning condensation, irrigation
water, springs, water from crawl space
pumps, footing drains, lawn watering,
individual residential car washing,
flows from riparian habitats and
wetlands, dechlorinated swimming pool
discharges, and street wash water
(discharges or flows from fire fighting
activities are excluded from the effective
prohibition against non-storm water and
need only be addressed where they are
identified as significant sources of
pollutants to waters of the United
States).
(iv) Guidance: EPA recommends that
the plan to detect and address illicit
discharges include the following four
components: procedures for locating
priority areas likely to have illicit
discharges; procedures for tracing the
source of an illicit discharge; procedures
for removing the source of the
discharge; and procedures for program
evaluation and assessment. EPA
recommends visually screening outfalls
during dry weather and conducting field
tests of selected pollutants as part of the
procedures for locating priority areas.
Illicit discharge education actions may
include storm drain stenciling, a
program to promote, publicize, and
facilitate public reporting of illicit
connections or discharges, and
distribution of outreach materials.
(4) Construction site storm water
runoff control. (i) You must develop,
implement, and enforce a program to
reduce pollutants in any storm water
runoff to your small MS4 from
construction activities that result in a
land disturbance of greater than or equal
to one acre. Reduction of storm water
discharges from construction activity
disturbing less than one acre must be
included in your program if that
construction activity is part of a larger
common plan of development or sale
that would disturb one acre or more. If
the NPDES permitting authority waives
requirements for storm water discharges
associated with small construction
activity in accordance with
§ 122.26(b)(15)(i), you are not required
to develop, implement, and/or enforce a
program to reduce pollutant discharges
from such sites.
(ii) Your program must include the
development and implementation of, at
a minimum:
(A) An ordinance or other regulatory
mechanism to require erosion and
sediment controls, as well as sanctions
to ensure compliance, to the extent
allowable under State, Tribal, or local
law;
(B) Requirements for construction site
operators to implement appropriate
erosion and sediment control best
management practices;
(C) Requirements for construction site
operators to control waste such as
discarded building materials, concrete
truck washout, chemicals, litter, and
sanitary waste at the construction site
that may cause adverse impacts to water
quality;
(D) Procedures for site plan review
which incorporate consideration of
potential water quality impacts;
(E) Procedures for receipt and
consideration of information submitted
by the public, and
(F) Procedures for site inspection and
enforcement of control measures.
(iii) Guidance: Examples of sanctions
to ensure compliance include nonmonetary
penalties, fines, bonding
requirements and/or permit denials for
non-compliance. EPA recommends that
procedures for site plan review include
the review of individual preconstruction
site plans to ensure
consistency with local sediment and
erosion control requirements.
Procedures for site inspections and
enforcement of control measures could
include steps to identify priority sites
for inspection and enforcement based
on the nature of the construction
activity, topography, and the
characteristics of soils and receiving
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
water quality. You are encouraged to
provide appropriate educational and
training measures for construction site
operators. You may wish to require a
storm water pollution prevention plan
for construction sites within your
jurisdiction that discharge into your
system. See § 122.44(s) (NPDES
permitting authorities’ option to
incorporate qualifying State, Tribal and
local erosion and sediment control
programs into NPDES permits for storm
water discharges from construction
sites). Also see § 122.35(b) (The NPDES
permitting authority may recognize that
another government entity, including
the permitting authority, may be
responsible for implementing one or
more of the minimum measures on your
behalf.)
(5) Post-construction storm water
management in new development and
redevelopment.
(i) You must develop, implement, and
enforce a program to address storm
water runoff from new development and
redevelopment projects that disturb
greater than or equal to one acre,
including projects less than one acre
that are part of a larger common plan of
development or sale, that discharge into
your small MS4. Your program must
ensure that controls are in place that
would prevent or minimize water
quality impacts.
(ii) You must:
(A) Develop and implement strategies
which include a combination of
structural and/or non-structural best
management practices (BMPs)
appropriate for your community;
(B) Use an ordinance or other
regulatory mechanism to address postconstruction
runoff from new
development and redevelopment
projects to the extent allowable under
State, Tribal or local law; and
(C) Ensure adequate long-term
operation and maintenance of BMPs.
(iii) Guidance: If water quality
impacts are considered from the
beginning stages of a project, new
development and potentially
redevelopment provide more
opportunities for water quality
protection. EPA recommends that the
BMPs chosen: be appropriate for the
local community; minimize water
quality impacts; and attempt to
maintain pre-development runoff
conditions. In choosing appropriate
BMPs, EPA encourages you to
participate in locally-based watershed
planning efforts which attempt to
involve a diverse group of stakeholders
including interested citizens. When
developing a program that is consistent
with this measure’s intent, EPA
recommends that you adopt a planning
process that identifies the
municipality’s program goals (e.g.,
minimize water quality impacts
resulting from post-construction runoff
from new development and
redevelopment), implementation
strategies (e.g., adopt a combination of
structural and/or non-structural BMPs),
operation and maintenance policies and
procedures, and enforcement
procedures. In developing your
program, you should consider assessing
existing ordinances, policies, programs
and studies that address storm water
runoff quality. In addition to assessing
these existing documents and programs,
you should provide opportunities to the
public to participate in the development
of the program. Non-structural BMPs are
preventative actions that involve
management and source controls such
as: policies and ordinances that provide
requirements and standards to direct
growth to identified areas, protect
sensitive areas such as wetlands and
riparian areas, maintain and/or increase
open space (including a dedicated
funding source for open space
acquisition), provide buffers along
sensitive water bodies, minimize
impervious surfaces, and minimize
disturbance of soils and vegetation;
policies or ordinances that encourage
infill development in higher density
urban areas, and areas with existing
infrastructure; education programs for
developers and the public about project
designs that minimize water quality
impacts; and measures such as
minimization of percent impervious
area after development and
minimization of directly connected
impervious areas. Structural BMPs
include: storage practices such as wet
ponds and extended-detention outlet
structures; filtration practices such as
grassed swales, sand filters and filter
strips; and infiltration practices such as
infiltration basins and infiltration
trenches. EPA recommends that you
ensure the appropriate implementation
of the structural BMPs by considering
some or all of the following: preconstruction
review of BMP designs;
inspections during construction to
verify BMPs are built as designed; postconstruction
inspection and
maintenance of BMPs; and penalty
provisions for the noncompliance with
design, construction or operation and
maintenance. Storm water technologies
are constantly being improved, and EPA
recommends that your requirements be
responsive to these changes,
developments or improvements in
control technologies.
(6) Pollution prevention/good
housekeeping for municipal operations.
68845
(i) You must develop and implement an
operation and maintenance program
that includes a training component and
has the ultimate goal of preventing or
reducing pollutant runoff from
municipal operations. Using training
materials that are available from EPA,
your State, Tribe, or other organizations,
your program must include employee
training to prevent and reduce storm
water pollution from activities such as
park and open space maintenance, fleet
and building maintenance, new
construction and land disturbances, and
storm water system maintenance.
(ii) Guidance: EPA recommends that,
at a minimum, you consider the
following in developing your program:
maintenance activities, maintenance
schedules, and long-term inspection
procedures for structural and nonstructural
storm water controls to
reduce floatables and other pollutants
discharged from your separate storm
sewers; controls for reducing or
eliminating the discharge of pollutants
from streets, roads, highways, municipal
parking lots, maintenance and storage
yards, fleet or maintenance shops with
outdoor storage areas, salt/sand storage
locations and snow disposal areas
operated by you, and waste transfer
stations; procedures for properly
disposing of waste removed from the
separate storm sewers and areas listed
above (such as dredge spoil,
accumulated sediments, floatables, and
other debris); and ways to ensure that
new flood management projects assess
the impacts on water quality and
examine existing projects for
incorporating additional water quality
protection devices or practices.
Operation and maintenance should be
an integral component of all storm water
management programs. This measure is
intended to improve the efficiency of
these programs and require new
programs where necessary. Properly
developed and implemented operation
and maintenance programs reduce the
risk of water quality problems.
(c) If an existing qualifying local
program requires you to implement one
or more of the minimum control
measures of paragraph (b) of this
section, the NPDES permitting authority
may include conditions in your NPDES
permit that direct you to follow that
qualifying program’s requirements
rather than the requirements of
paragraph (b) of this section. A
qualifying local program is a local, State
or Tribal municipal storm water
management program that imposes, at a
minimum, the relevant requirements of
paragraph (b) of this section.
(d)(1) In your permit application
(either a notice of intent for coverage
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68846 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
under a general permit or an individual
permit application), you must identify
and submit to your NPDES permitting
authority the following information:
(i) The best management practices
(BMPs) that you or another entity will
implement for each of the storm water
minimum control measures at
paragraphs (b)(1) through (b)(6) of this
section;
(ii) The measurable goals for each of
the BMPs including, as appropriate, the
months and years in which you will
undertake required actions, including
interim milestones and the frequency of
the action; and
(iii) The person or persons
responsible for implementing or
coordinating your storm water
management program.
(2) If you obtain coverage under a
general permit, you are not required to
meet any measurable goal(s) identified
in your notice of intent in order to
demonstrate compliance with the
minimum control measures in
paragraphs (b)(3) through (b)(6) of this
section unless, prior to submitting your
NOI, EPA or your State or Tribe has
provided or issued a menu of BMPs that
addresses each such minimum measure.
Even if no regulatory authority issues
the menu of BMPs, however, you still
must comply with other requirements of
the general permit, including good faith
implementation of BMPs designed to
comply with the minimum measures.
(3) Guidance: Either EPA or your State
or Tribal permitting authority will
provide a menu of BMPs. You may
choose BMPs from the menu or select
others that satisfy the minimum control
measures.
(e)(1) You must comply with any
more stringent effluent limitations in
your permit, including permit
requirements that modify, or are in
addition to, the minimum control
measures based on an approved total
maximum daily load (TMDL) or
equivalent analysis. The permitting
authority may include such more
stringent limitations based on a TMDL
or equivalent analysis that determines
such limitations are needed to protect
water quality.
(2) Guidance: EPA strongly
recommends that until the evaluation of
the storm water program in § 122.37, no
additional requirements beyond the
minimum control measures be imposed
on regulated small MS4s without the
agreement of the operator of the affected
small MS4, except where an approved
TMDL or equivalent analysis provides
adequate information to develop more
specific measures to protect water
quality.
(f) You must comply with other
applicable NPDES permit requirements,
standards and conditions established in
the individual or general permit,
developed consistent with the
provisions of §§ 122.41 through 122.49,
as appropriate.
(g) Evaluation and assessment—(1)
Evaluation. You must evaluate program
compliance, the appropriateness of your
identified best management practices,
and progress towards achieving your
identified measurable goals.
Note to Paragraph (g)(1): The NPDES
permitting authority may determine
monitoring requirements for you in
accordance with State/Tribal monitoring
plans appropriate to your watershed.
Participation in a group monitoring program
is encouraged.
(2) Recordkeeping. You must keep
records required by the NPDES permit
for at least 3 years. You must submit
your records to the NPDES permitting
authority only when specifically asked
to do so. You must make your records,
including a description of your storm
water management program, available to
the public at reasonable times during
regular business hours (see § 122.7 for
confidentiality provision). (You may
assess a reasonable charge for copying.
You may require a member of the public
to provide advance notice.)
(3) Reporting. Unless you are relying
on another entity to satisfy your NPDES
permit obligations under § 122.35(a),
you must submit annual reports to the
NPDES permitting authority for your
first permit term. For subsequent permit
terms, you must submit reports in year
two and four unless the NPDES
permitting authority requires more
frequent reports. Your report must
include:
(i) The status of compliance with
permit conditions, an assessment of the
appropriateness of your identified best
management practices and progress
towards achieving your identified
measurable goals for each of the
minimum control measures;
(ii) Results of information collected
and analyzed, including monitoring
data, if any, during the reporting period;
(iii) A summary of the storm water
activities you plan to undertake during
the next reporting cycle;
(iv) A change in any identified best
management practices or measurable
goals for any of the minimum control
measures; and
(v) Notice that you are relying on
another governmental entity to satisfy
some of your permit obligations (if
applicable).
§ 122.35 As an operator of a regulated
small MS4, may I share the responsibility to
implement the minimum control measures
with other entities?
(a) You may rely on another entity to
satisfy your NPDES permit obligations
to implement a minimum control
measure if:
(1) The other entity, in fact,
implements the control measure;
(2) The particular control measure, or
component thereof, is at least as
stringent as the corresponding NPDES
permit requirement; and
(3) The other entity agrees to
implement the control measure on your
behalf. In the reports you must submit
under § 122.34(g)(3), you must also
specify that you rely on another entity
to satisfy some of your permit
obligations. If you are relying on another
governmental entity regulated under
section 122 to satisfy all of your permit
obligations, including your obligation to
file periodic reports required by
§ 122.34(g)(3), you must note that fact in
your NOI, but you are not required to
file the periodic reports. You remain
responsible for compliance with your
permit obligations if the other entity
fails to implement the control measure
(or component thereof). Therefore, EPA
encourages you to enter into a legally
binding agreement with that entity if
you want to minimize any uncertainty
about compliance with your permit.
(b) In some cases, the NPDES
permitting authority may recognize,
either in your individual NPDES permit
or in an NPDES general permit, that
another governmental entity is
responsible under an NPDES permit for
implementing one or more of the
minimum control measures for your
small MS4 or that the permitting
authority itself is responsible. Where the
permitting authority does so, you are
not required to include such minimum
control measure(s) in your storm water
management program. (For example, if a
State or Tribe is subject to an NPDES
permit that requires it to administer a
program to control construction site
runoff at the State or Tribal level and
that program satisfies all of the
requirements of § 122.34(b)(4), you
could avoid responsibility for the
construction measure, but would be
responsible for the remaining minimum
control measures.) Your permit may be
reopened and modified to include the
requirement to implement a minimum
control measure if the entity fails to
implement it.
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
§ 122.36 As an operator of a regulated
small MS4, what happens if I don’t comply
with the application or permit requirements
in §§ 122.33 through 122.35?
NPDES permits are federally
enforceable. Violators may be subject to
the enforcement actions and penalties
described in Clean Water Act sections
309 (b), (c), and (g) and 505, or under
applicable State, Tribal, or local law.
Compliance with a permit issued
pursuant to section 402 of the Clean
Water Act is deemed compliance, for
purposes of sections 309 and 505, with
sections 301, 302, 306, 307, and 403,
except any standard imposed under
section 307 for toxic pollutants
injurious to human health. If you are
covered as a co-permittee under an
individual permit or under a general
permit by means of a joint Notice of
Intent you remain subject to the
enforcement actions and penalties for
the failure to comply with the terms of
the permit in your jurisdiction except as
set forth in § 122.35(b).
§ 122.37 Will the small MS4 storm water
program regulations at §§ 122.32 through
122.36 and § 123.35 of this chapter change
in the future?
EPA will evaluate the small MS4
regulations at §§ 122.32 through 122.36
and § 123.35 of this chapter after
December 10, 2012 and make any
necessary revisions. (EPA intends to
conduct an enhanced research effort and
compile a comprehensive evaluation of
the NPDES MS4 storm water program.
EPA will re-evaluate the regulations
based on data from the NPDES MS4
storm water program, from research on
receiving water impacts from storm
water, and the effectiveness of best
management practices (BMPs), as well
as other relevant information sources.)
6. In § 122.44, redesignate paragraphs
(k)(2) and (k)(3) as paragraphs (k)(3) and
(k)(4), remove the comma at the end of
newly redesignated paragraph (k)(3) and
add a semicolon in its place, and add
new paragraphs (k)(2) and (s) to read as
follows:
§ 122.44 Establishing limitations,
standards, and other permit conditions
(applicable to State NPDES programs, see
§ 123.25).
* * * * *
(k) * * *
(2) Authorized under section 402(p) of
CWA for the control of storm water
discharges;
* * * * *
(s) Qualifying State, Tribal, or local
programs. (1) For storm water
discharges associated with small
construction activity identified in
§ 122.26(b)(15), the Director may
include permit conditions that
incorporate qualifying State, Tribal, or
local erosion and sediment control
program requirements by reference.
Where a qualifying State, Tribal, or local
program does not include one or more
of the elements in this paragraph (s)(1),
then the Director must include those
elements as conditions in the permit. A
qualifying State, Tribal, or local erosion
and sediment control program is one
that includes:
(i) Requirements for construction site
operators to implement appropriate
erosion and sediment control best
management practices;
(ii) Requirements for construction site
operators to control waste such as
discarded building materials, concrete
truck washout, chemicals, litter, and
sanitary waste at the construction site
that may cause adverse impacts to water
quality;
(iii) Requirements for construction
site operators to develop and implement
a storm water pollution prevention plan.
(A storm water pollution prevention
plan includes site descriptions,
descriptions of appropriate control
measures, copies of approved State,
Tribal or local requirements,
maintenance procedures, inspection
procedures, and identification of nonstorm
water discharges); and
(iv) Requirements to submit a site
plan for review that incorporates
consideration of potential water quality
impacts.
(2) For storm water discharges from
construction activity identified in
§ 122.26(b)(14)(x), the Director may
include permit conditions that
incorporate qualifying State, Tribal, or
local erosion and sediment control
program requirements by reference. A
qualifying State, Tribal or local erosion
and sediment control program is one
that includes the elements listed in
paragraph (s)(1) of this section and any
additional requirements necessary to
achieve the applicable technology-based
standards of ‘‘best available technology’’
and ‘‘best conventional technology’’
based on the best professional judgment
of the permit writer.
7. Add § 122.62(a)(14) to read as
follows:
§ 122.62 Modification or revocation and
reissuance of permits (applicable to State
programs, see § 123.25).
* * * * *
(a) * * *
(14) For a small MS4, to include an
effluent limitation requiring
implementation of a minimum control
measure or measures as specified in
§ 122.34(b) when:
(i) The permit does not include such
measure(s) based upon the
68847
determination that another entity was
responsible for implementation of the
requirement(s); and
(ii) The other entity fails to implement
measure(s) that satisfy the
requirement(s).
* * * * *
8. Revise Appendices F, G, H, and I
to Part 122 to read as follows:
APPENDIX F TO PART 122.—INCOR-
PORATED PLACES WITH POPU-
LATIONS GREATER THAN 250,000
ACCORDING TO THE 1990 DECEN-
NIAL CENSUS BY THE BUREAU OF
THE CENSUS
State Incorporated Place
Alabama .................... Birmingham.
Arizona ...................... Phoenix.
Tucson.
California ................... Long Beach.
Los Angeles.
Oakland.
Sacramento.
San Diego.
San Francisco.
San Jose.
Colorado .................... Denver.
District of Columbia
Florida Jacksonville.
Miami.
Tampa.
Georgia. .................... Atlanta.
Illinois ........................ Chicago.
Indiana ...................... Indianapolis.
Kansas ...................... Wichita.
Kentucky ................... Louisville.
Louisiana ................... New Orleans.
Maryland ................... Baltimore.
Massachusetts .......... Boston.
Michigan .................... Detroit.
Minnesota .................. Minneapolis.
St. Paul.
Missouri ..................... Kansas City.
St. Louis.
Nebraska ................... Omaha.
New Jersey ............... Newark.
New Mexico .............. Albuquerque.
New York .................. Buffalo.
Bronx Borough.
Brooklyn Borough.
Manhattan Borough.
Queens Borough.
Staten Island Borough.
North Carolina ........... Charlotte.
Ohio ........................... Cincinnati.
Cleveland.
Columbus.
Toledo.
Oklahoma .................. Oklahoma City.
Tulsa.
Oregon ...................... Portland.
Pennsylvania ............. Philadelphia.
Pittsburgh.
Tennessee ................ Memphis.
Nashville/Davidson.
Texas ........................ Austin.
Dallas.
El Paso.
Fort Worth.
Houston.
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68848 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
APPENDIX F TO PART 122.—INCOR-
PORATED PLACES WITH POPU-
LATIONS GREATER THAN 250,000
ACCORDING TO THE 1990 DECEN-
NIAL CENSUS BY THE BUREAU OF
THE CENSUS—Continued
State Incorporated Place
San Antonio.
Virginia ...................... Norfolk.
Virginia Beach.
Washington ............... Seattle.
Wisconsin .................. Milwaukee.
APPENDIX G TO PART 122.—INCOR-
PORATED PLACES WITH POPU-
LATIONS GREATER THAN 100,000
BUT LESS THAN 250,000 ACCORD-
ING TO THE 1990 DECENNIAL CEN-
SUS BY THE BUREAU OF THE CEN-
SUS
State Incorporated place
Alabama .................... Huntsville.
Mobile.
Montgomery.
Alaska ....................... Anchorage.
Arizona ...................... Mesa.
Tempe.
Arkansas ................... Little Rock.
California ................... Anaheim.
Bakersfield.
Berkeley.
Chula Vista.
Concord.
El Monte.
Escondido.
Fremont.
Fresno.
Fullerton.
Garden Grove.
Glendale.
Hayward.
Huntington Beach.
Inglewood.
Irvine.
Modesto.
Moreno Valley.
Oceanside.
Ontario.
Orange.
Colorado .................... Aurora.
APPENDIX G TO PART 122.—INCOR-
PORATED PLACES WITH POPU-
LATIONS GREATER THAN 100,000
BUT LESS THAN 250,000 ACCORD-
ING TO THE 1990 DECENNIAL CEN-
SUS BY THE BUREAU OF THE CEN-
SUS—Continued
State Incorporated place
Colorado Springs.
Lakewood.
Pueblo.
Connecticut ............... Bridgeport.
Hartford.
New Haven.
Stamford.
Waterbury.
Florida ....................... Fort Lauderdale.
Hialeah.
Hollywood.
Orlando.
St. Petersburg.
Tallahassee.
Georgia ..................... Columbus.
Macon.
Savannah.
Idaho ......................... Boise City.
Illinois ........................ Peoria.
Rockford.
Indiana ...................... Evansville.
Fort Wayne.
Gary.
South Bend.
Iowa ........................... Cedar Rapids.
Davenport.
Des Moines.
Kansas ...................... Kansas City.
Topeka.
Kentucky ................... Lexington-Fayette.
Louisiana ................... Baton Rouge.
Shreveport.
Massachusetts .......... Springfield.
Worcester.
Michigan .................... Ann Arbor.
Flint.
Grand Rapids.
Lansing.
Livonia.
Sterling Heights.
Warren.
Mississippi ................. Jackson.
Missouri ..................... Independence.
Springfield.
Nebraska ................... Lincoln.
Nevada ...................... Las Vegas.
Reno.
APPENDIX G TO PART 122.—INCOR-
PORATED PLACES WITH POPU-
LATIONS GREATER THAN 100,000
BUT LESS THAN 250,000 ACCORD-
ING TO THE 1990 DECENNIAL CEN-
SUS BY THE BUREAU OF THE CEN-
SUS—Continued
State Incorporated place
New Jersey ............... Elizabeth.
Jersey City.
Paterson.
New York .................. Albany.
Rochester.
Syracuse.
Yonkers.
North Carolina ........... Durham.
Greensboro.
Raleigh.
Winston-Salem.
Ohio ........................... Akron.
Dayton.
Youngstown.
Oregon ...................... Eugene.
Pennsylvania ............. Allentown.
Erie.
Rhode Island ............. Providence.
South Carolina .......... Columbia.
Tennessee ................ Chattanooga.
Knoxville.
Texas ........................ Abilene.
Amarillo.
Arlington.
Beaumont.
Corpus Christi.
Garland.
Irving.
Laredo.
Lubbock.
Mesquite.
Pasadena.
Plano.
Waco.
Utah ........................... Salt Lake City.
Virginia ...................... Alexandria.
Chesapeake.
Hampton.
Newport News.
Portsmouth.
Richmond.
Roanoke.
Washington ............... Spokane.
Tacoma.
Wisconsin .................. Madison.
APPENDIX H TO PART 122.—COUNTIES WITH UNINCORPORATED URBANIZED AREAS WITH A POPULATION OF 250,000 OR
MORE ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUS
State County
Unincorporated urbanizedpopulation
California .................................................................................. Los Angeles ............................................................................. 886,780
Sacramento ............................................................................. 594,889
San Diego ................................................................................ 250,414
Delaware .................................................................................. New Castle .............................................................................. 296,996
Florida ...................................................................................... Dade ........................................................................................ 1,014,504
Georgia .................................................................................... DeKalb ..................................................................................... 448,686
Hawaii ...................................................................................... Honolulu 1 ................................................................................ 114,506
Maryland .................................................................................. Anne Arundel ........................................................................... 344,654
Baltimore ................................................................................. 627,593
Montgomery ............................................................................. 599,028
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
68849
APPENDIX H TO PART 122.—COUNTIES WITH UNINCORPORATED URBANIZED AREAS WITH A POPULATION OF 250,000 OR
MORE ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUS—Continued
State County
Unincorporated urbanizedpopulation
Prince George’s ....................................................................... 494,369
Texas ....................................................................................... Harris ....................................................................................... 729,206
Utah ......................................................................................... Salt Lake ................................................................................. 270,989
Virginia ..................................................................................... Fairfax ...................................................................................... 760,730
Washington .............................................................................. King ......................................................................................... 520,468
1 County was previously listed in this appendix; however, population dropped to below 250,000 in the 1990 Census.
APPENDIX I TO PART 122.—COUNTIES WITH UNINCORPORATED URBANIZED AREAS GREATER THAN 100,000 BUT LESS
THAN 250,000 ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUS
State County
Unincorporated urbanizedpopulation
Alabama ................................................................................... Jefferson .................................................................................. 78,608
Arizona ..................................................................................... Pima ........................................................................................ 162,202
California .................................................................................. Alameda .................................................................................. 115,082
Contra Costa ........................................................................... 131,082
Kern ......................................................................................... 128,503
Orange ..................................................................................... 223,081
Riverside .................................................................................. 166,509
San Bernardino ....................................................................... 162,202
Colorado .................................................................................. Arapahoe ................................................................................. 103,248
Florida ...................................................................................... Broward ................................................................................... 142,329
Escambia ................................................................................. 167,463
Hillsborough ............................................................................. 398,593
Lee ........................................................................................... 102,337
Manatee ................................................................................... 123,828
Orange ..................................................................................... 378,611
Palm Beach ............................................................................. 360,553
Pasco ....................................................................................... 148,907
Pinellas .................................................................................... 255,772
Polk .......................................................................................... 121,528
Sarasota .................................................................................. 172,600
Seminole .................................................................................. 127,873
Georgia .................................................................................... Clayton .................................................................................... 133,237
Cobb ........................................................................................ 322,595
Fulton ....................................................................................... 127,776
Gwinnett .................................................................................. 237,305
Richmond ................................................................................ 126,476
Kentucky .................................................................................. Jefferson .................................................................................. 239,430
Louisiana .................................................................................. East Baton Rouge ................................................................... 102,539
Parish ...................................................................................... 331,307
Jefferson Parish ...................................................................... ..............................
Maryland .................................................................................. Howard .................................................................................... 157,972
North Carolina .......................................................................... Cumberland ............................................................................. 146,827
Nevada ..................................................................................... Clark ........................................................................................ 327,618
Oregon ..................................................................................... Multnomah 1 ............................................................................. 52,923
Washington .............................................................................. 116,687
South Carolina ......................................................................... Greenville ................................................................................ 147,464
Richland ................................................................................... 130,589
Virginia ..................................................................................... Arlington .................................................................................. 170,936
Chesterfield ............................................................................. 174,488
Henrico .................................................................................... 201,367
Prince William .......................................................................... 157,131
Washington .............................................................................. Pierce ...................................................................................... 258,530
Snohomish ............................................................................... 157,218
1 County was previously listed in this appendix; however, population dropped to below 100,000 in the 1990 Census.
PART 123—STATE PROGRAM
REQUIREMENTS
1. The authority citation for part 123
continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq.
2. Amend § 123.25 by removing the
word ‘‘and’’ at the end of paragraph
(a)(37), by removing the period at the
end of paragraph (a)(38) and adding a
semicolon in its place, and by adding
paragraphs (a)(39) through (a)(45) to
read as follows:
§ 123.25 Requirements for permitting.
(a) * * *
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68850 Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
(39) § 122.30 (What are the objectives
of the storm water regulations for small
MS4s?);
(40) § 122.31 (For Indian Tribes only)
(As a Tribe, what is my role under the
NPDES storm water program?);
(41) § 122.32 (As an operator of a
small MS4, am I regulated under the
NPDES storm water program?);
(42) § 122.33 (If I am an operator of a
regulated small MS4, how do I apply for
an NPDES permit? When do I have to
apply?);
(43) § 122.34 (As an operator of a
regulated small MS4, what will my
NPDES MS4 storm water permit
require?);
(44) § 122.35 (As an operator of a
regulated small MS4, may I share the
responsibility to implement the
minimum control measures with other
entities?); and
(45) § 122.36 (As an operator of a
regulated small MS4, what happens if I
don’t comply with the application or
permit requirements in §§ 122.33
through 122.35?).
* * * * *
3. Add § 123.35 to subpart B to read
as follows:
§ 123.35 As the NPDES Permitting
Authority for regulated small MS4s, what is
my role?
(a) You must comply with the
requirements for all NPDES permitting
authorities under Parts 122, 123, 124,
and 125 of this chapter. (This section is
meant only to supplement those
requirements and discuss specific issues
related to the small MS4 storm water
program.)
(b) You must develop a process, as
well as criteria, to designate small MS4s
other than those described in
§ 122.32(a)(1) of this chapter, as
regulated small MS4s to be covered
under the NPDES storm water discharge
control program. This process must
include the authority to designate a
small MS4 waived under paragraph (d)
of this section if circumstances change.
EPA may make designations under this
section if a State or Tribe fails to comply
with the requirements listed in this
paragraph. In making designations of
small MS4s, you must:
(1)(i) Develop criteria to evaluate
whether a storm water discharge results
in or has the potential to result in
exceedances of water quality standards,
including impairment of designated
uses, or other significant water quality
impacts, including habitat and
biological impacts.
(ii) Guidance: For determining other
significant water quality impacts, EPA
recommends a balanced consideration
of the following designation criteria on
a watershed or other local basis:
discharge to sensitive waters, high
growth or growth potential, high
population density, contiguity to an
urbanized area, significant contributor
of pollutants to waters of the United
States, and ineffective protection of
water quality by other programs;
(2) Apply such criteria, at a minimum,
to any small MS4 located outside of an
urbanized area serving a jurisdiction
with a population density of at least
1,000 people per square mile and a
population of at least 10,000;
(3) Designate any small MS4 that
meets your criteria by December 9,
2002. You may wait until December 8,
2004 to apply the designation criteria on
a watershed basis if you have developed
a comprehensive watershed plan. You
may apply these criteria to make
additional designations at any time, as
appropriate; and
(4) Designate any small MS4 that
contributes substantially to the
pollutant loadings of a physically
interconnected municipal separate
storm sewer that is regulated by the
NPDES storm water program.
(c) You must make a final
determination within 180 days from
receipt of a petition under § 122.26(f) of
this chapter (or analogous State or
Tribal law). If you do not do so within
that time period, EPA may make a
determination on the petition.
(d) You must issue permits consistent
with §§ 122.32 through 122.35 of this
chapter to all regulated small MS4s. You
may waive or phase in the requirements
otherwise applicable to regulated small
MS4s, as defined in § 122.32(a)(1) of this
chapter, under the following
circumstances:
(1) You may waive permit coverage
for each small MS4s in jurisdictions
with a population under 1,000 within
the urbanized area where all of the
following criteria have been met:
(i) Its discharges are not contributing
substantially to the pollutant loadings of
a physically interconnected regulated
MS4 (see paragraph (b)(4) of this
section); and
(ii) If the small MS4 discharges any
pollutant(s) that have been identified as
a cause of impairment of any water body
to which it discharges, storm water
controls are not needed based on
wasteload allocations that are part of an
EPA approved or established ‘‘total
maximum daily load’’ (TMDL) that
address the pollutant(s) of concern.
(2) You may waive permit coverage
for each small MS4 in jurisdictions with
a population under 10,000 where all of
the following criteria have been met:
(i) You have evaluated all waters of
the U.S., including small streams,
tributaries, lakes, and ponds, that
receive a discharge from the MS4
eligible for such a waiver.
(ii) For all such waters, you have
determined that storm water controls
are not needed based on wasteload
allocations that are part of an EPA
approved or established TMDL that
addresses the pollutant(s) of concern or,
if a TMDL has not been developed or
approved, an equivalent analysis that
determines sources and allocations for
the pollutant(s) of concern.
(iii) For the purpose of paragraph
(d)(2)(ii) of this section, the pollutant(s)
of concern include biochemical oxygen
demand (BOD), sediment or a parameter
that addresses sediment (such as total
suspended solids, turbidity or siltation),
pathogens, oil and grease, and any
pollutant that has been identified as a
cause of impairment of any water body
that will receive a discharge from the
MS4.
(iv) You have determined that current
and future discharges from the MS4 do
not have the potential to result in
exceedances of water quality standards,
including impairment of designated
uses, or other significant water quality
impacts, including habitat and
biological impacts.
(v) Guidance: To help determine other
significant water quality impacts, EPA
recommends a balanced consideration
of the following criteria on a watershed
or other local basis: discharge to
sensitive waters, high growth or growth
potential, high population or
commercial density, significant
contributor of pollutants to waters of the
United States, and ineffective protection
of water quality by other programs.
(3) You may phase in permit coverage
for small MS4s serving jurisdictions
with a population under 10,000 on a
schedule consistent with a State
watershed permitting approach. Under
this approach, you must develop and
implement a schedule to phase in
permit coverage for approximately 20
percent annually of all small MS4s that
qualify for such phased-in coverage.
Under this option, all regulated small
MS4s are required to have coverage
under an NPDES permit by no later than
March 8, 2007. Your schedule for
phasing in permit coverage for small
MS4s must be approved by the Regional
Administrator no later than December
10, 2001.
(4) If you choose to phase in permit
coverage for small MS4s in jurisdictions
with a population under 10,000, in
accordance with paragraph (d)(3) of this
section, you may also provide waivers
in accordance with paragraphs (d)(1)
and (d)(2) of this section pursuant to
your approved schedule.
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Federal Register / Vol. 64, No. 235 / Wednesday, December 8, 1999 / Rules and Regulations
(5) If you do not have an approved
schedule for phasing in permit coverage,
you must make a determination whether
to issue an NPDES permit or allow a
waiver in accordance with paragraph
(d)(1) or (d)(2) of this section, for each
eligible MS4 by December 9, 2002.
(6) You must periodically review any
waivers granted in accordance with
paragraph (d)(2) of this section to
determine whether any of the
information required for granting the
waiver has changed. At a minimum, you
must conduct such a review once every
five years. In addition, you must
consider any petition to review any
waiver when the petitioner provides
evidence that the information required
for granting the waiver has substantially
changed.
(e) You must specify a time period of
up to 5 years from the date of permit
issuance for operators of regulated small
MS4s to fully develop and implement
their storm water program.
(f) You must include the requirements
in §§ 122.33 through 122.35 of this
chapter in any permit issued for
regulated small MS4s or develop permit
limits based on a permit application
submitted by a regulated small MS4.
(You may include conditions in a
regulated small MS4 NPDES permit that
direct the MS4 to follow an existing
qualifying local program’s requirements,
as a way of complying with some or all
of the requirements in § 122.34(b) of this
chapter. See § 122.34(c) of this chapter.
Qualifying local, State or Tribal program
requirements must impose, at a
minimum, the relevant requirements of
§ 122.34(b) of this chapter.)
(g) If you issue a general permit to
authorize storm water discharges from
small MS4s, you must make available a
menu of BMPs to assist regulated small
MS4s in the design and implementation
of municipal storm water management
programs to implement the minimum
measures specified in § 122.34(b) of this
chapter. EPA plans to develop a menu
of BMPs that will apply in each State or
Tribe that has not developed its own
menu. Regardless of whether a menu of
BMPs has been developed by EPA, EPA
encourages State and Tribal permitting
authorities to develop a menu of BMPs
that is appropriate for local conditions.
EPA also intends to provide guidance
on developing BMPs and measurable
goals and modify, update, and
supplement such guidance based on the
assessments of the NPDES MS4 storm
water program and research to be
conducted over the next thirteen years.
(h)(1) You must incorporate any
additional measures necessary to ensure
effective implementation of your State
or Tribal storm water program for
regulated small MS4s.
(2) Guidance: EPA recommends
consideration of the following:
(i) You are encouraged to use a
general permit for regulated small MS4s;
(ii) To the extent that your State or
Tribe administers a dedicated funding
source, you should play an active role
in providing financial assistance to
operators of regulated small MS4s;
(iii) You should support local
programs by providing technical and
programmatic assistance, conducting
research projects, performing watershed
monitoring, and providing adequate
legal authority at the local level;
(iv) You are encouraged to coordinate
and utilize the data collected under
several programs including water
quality management programs, TMDL
programs, and water quality monitoring
programs;
(v) Where appropriate, you may
recognize existing responsibilities
among governmental entities for the
control measures in an NPDES small
MS4 permit (see § 122.35(b) of this
chapter); and
68851
(vi) You are encouraged to provide a
brief (e.g., two page) reporting format to
facilitate compiling and analyzing data
from submitted reports under
§ 122.34(g)(3) of this chapter. EPA
intends to develop a model form for this
purpose.
PART 124—PROCEDURES FOR
DECISIONMAKING
1. The authority citation for part 124
continues to read as follows:
Authority: Resource Conservation and
Recovery Act, 42 U.S.C. 6901 et seq.; Safe
Drinking Water Act, 42 U.S.C. 300(f) et seq.;
Clean Water Act, 33 U.S.C. 1251 et seq.;
Clean Air Act, 42 U.S.C. 7401 et seq.
2. Revise § 124.52(c) to read as
follows:
§ 124.52 Permits required on a case-bycase
basis.
* * * * *
(c) Prior to a case-by-case
determination that an individual permit
is required for a storm water discharge
under this section (see § 122.26(a)(1)(v),
(c)(1)(v), and (a)(9)(iii) of this chapter),
the Regional Administrator may require
the discharger to submit a permit
application or other information
regarding the discharge under section
308 of the CWA. In requiring such
information, the Regional Administrator
shall notify the discharger in writing
and shall send an application form with
the notice. The discharger must apply
for a permit within 180 days of notice,
unless permission for a later date is
granted by the Regional Administrator.
The question whether the initial
designation was proper will remain
open for consideration during the public
comment period under § 124.11 or
§ 124.118 and in any subsequent
hearing.
[FR Doc. 99–29181 Filed 12–7–99; 8:45 am]
BILLING CODE 6560–50–P
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HIGHWAY TRAFFIC NOISE ANALYSIS
AND ABATEMENT POLICY AND
GUIDANCE
by
U.S. Department of Transportation
Federal Highway Administration
Office of Environment and Planning
Noise and Air Quality Branch
Washington, D.C.
June 1995

Table of Contents
LEGISLATION .......................................................................... 1
Land Use Planning and Control ........................................................ 1
Source Control ..................................................................... 2
Highway Project Noise Mitigation ...................................................... 2
NOISE FUNDAMENTALS ................................................................. 3
FHWA NOISE REGULATIONS ............................................................. 5
772.1: PURPOSE .................................................................. 5
772.3: NOISE STANDARDS ......................................................... 5
772.5: DEFINITIONS ............................................................... 5
772.7: APPLICABILITY: ............................................................ 8
772.9: ANALYSIS OF TRAFFIC NOISE IMPACTS AND ABATEMENT MEASURES
........................................................................... 9
772.11: NOISE ABATEMENT .................................................. 10
772.13: FEDERAL PARTICIPATION ............................................. 12
772.15: INFORMATION FOR LOCAL OFFICIALS .................................. 14
772.17: TRAFFIC NOISE PREDICTION .......................................... 15
772.19. CONSTRUCTION NOISE ............................................... 16
HIGHWAY TRAFFIC NOISE ANALYSIS AND DOCUMENTATION .............................. 19
Definition of Impact Criteria and Identification of Noise-Sensitive Land Uses .................... 19
Determination of Existing Noise Levels ................................................. 20
Prediction of Future Traffic Noise Levels ................................................ 21
Identification of Traffic Noise Impacts .................................................. 22
Identification and Consideration of Abatement ............................................ 22
Construction Noise Analysis ......................................................... 24
Coordination with Local Government Officials ........................................... 24
HIGHWAY TRAFFIC NOISE ABATEMENT ................................................. 25
Noise Barriers .................................................................... 25
Technical Considerations and Barrier Effectiveness .................................. 25
Public Perception ............................................................ 28
Design Considerations ........................................................ 28
Flexibility in Decisionmaking ................................................... 30
Vegetation ....................................................................... 30
Traffic Management ................................................................ 30
Building Insulation ................................................................ 31
Buffer Zones ..................................................................... 31
Pavement ........................................................................ 31
ADDITIONAL INFORMATION ............................................................ 32
Appropriate Level of Highway Traffic Noise Analysis for CE, EA/FONSI, and EIS ................ 32
Noise Analysis for Highway Lane Addition Projects ........................................ 38
Traffic Noise Analysis for Proposed Projects Involving Interchanges, Ramps, or "Lane Widenings" .... 40
Reasonableness and Feasibility of Noise Abatement ........................................ 41
Type II Projects for Highway Traffic Noise Abatement ...................................... 55
"Date of Public Knowledge" .......................................................... 64
Highway Traffic-Induced Vibration .................................................... 64
Written State Noise Policies .......................................................... 65
INDEX ............................................................................... 66

List of Tables
Table 1: Maximum Noise Emission Levels as Required by EPA for Newly
Manufactured Trucks with GVWR Over 4,525 Kilograms .............................. 2
Table 2: Maximum Noise Emission Levels as Required by EPA for In-Use
Medium and Heavy Trucks with GVWR Over 4,525 Kilograms
Engaged in Interstate Commerce ................................................. 2
Table 3: Decibel Changes, Loudness, and Energy Loss ........................................ 4
Table 4: Rules for Combining Sound Levels by "Decibel Addition" .............................. 4
Table 5: Noise Abatement Criteria (NAC)
Hourly A-Weighted Sound Level in Decibels (dBA)* .................................. 7
Table 6: Criteria Used by States to Define "Substantial" ....................................... 8
Table 7: Building Noise Reduction Factors ................................................ 10
Table 8: Relationship Between Decibel, Energy, and Loudness ................................. 11
Table 9: Example of Abatement Information for an EIS ...................................... 24
Table 10: Barrier Attenuation ........................................................... 26
Table 11: Type II Noise Barrier Construction By State
By Total Barrier Length (1970-1992) ............................................. 57

List of Figures
Figure 1: Reference Energy Mean Emission Levels .......................................... 18
Figure 2: Noise Barrier Examples ....................................................... 27
Figure 3: Noise Barrier Shadow Zone .................................................... 27
Figure 4: Vegetation ................................................................. 30
Figure 5: Buffer Zones ................................................................ 31

INTRODUCTION
Studies have shown that some of the most pervasive sources of noise in our environment today are those associated
with transportation. Traffic noise tends to be a dominant noise source in our urban as well as rural environment. In
response to the problems associated with traffic noise, the United States Code of Federal Regulations Part 772
(23 CFR 772), "Procedures for Abatement of Highway Traffic Noise and Construction Noise," establishes
standards for mitigating highway traffic noise.
The purpose of this document is to provide Federal Highway Administration (FHWA) policies and guidance for the
analysis and abatement of highway traffic noise. A 3½-day training course, sponsored by the National Highway
Institute, is available for instructing FHWA field and State highway agency (SHA) staffs in the details of the
policies and the technical procedures required for analyzing and abating traffic noise impacts.
LEGISLATION
Effective control of the undesirable effects of highway traffic noise requires that (1) land use near highways be
controlled, (2) vehicles themselves be quieted, and (3) mitigation of noise be undertaken on individual
highway projects.
The first component is traditionally an area of local responsibility. The other components are the joint responsibility
of private industry and of Federal, State, and local governments.
Land Use Planning and Control
The Federal Government has essentially no authority to regulate land use planning or the land development process.
The FHWA and other Federal agencies encourage State and local governments to practice land use planning and
control in the vicinity of highways. The FHWA advocates that local governments use their power to regulate land
development in such a way that noise-sensitive land uses are either prohibited from being located adjacent to a
highway, or that the developments are planned, designed, and constructed in such a way that noise impacts are
minimized.
Some State and local governments have enacted legislative statutes for land use planning and control. As an
example, the State of California has legislation on highway noise and compatible land use development. This State
legislation requires local governments to consider the adverse environmental effects of noise in their land
development process. In addition, the law gives local governments broad powers to pass ordinances relating to the
use of land, including among other things, the location, size, and use of buildings and open space. Wisconsin has a
State law which requires formal adoption of a local resolution supporting the construction of a proposed noise
barrier and documenting the existence of local land use controls to prevent the future need for noise barriers
adjacent to freeways and expressways.
Although some other States and local governments have similar laws, the entire issue of land use is extremely
complicated with a vast array of competing considerations entering into any actual land use control decisions. For
this reason, it is nearly impossible to measure the progress of using land use to control the effects of noise.
1

Source Control
The Noise Control Act of 1972 gives the Federal Environmental Protection Agency (EPA) the authority to establish
noise regulations to control major sources of noise, including transportation vehicles and construction equipment.
In addition, this legislation requires EPA to issue noise emission standards for motor vehicles used in Interstate
commerce (vehicles used to transport commodities across State boundaries) and requires the FHWA Office of
Motor Carrier Safety (OMCS) to enforce these noise emission standards.
The EPA has established regulations which set emission level standards for newly manufactured medium and heavy
trucks that have a gross vehicle weight rating (GVWR) of more than 4,525 kilograms and are capable of operating
on a highway or street. Table 1 shows the maximum noise emission levels allowed by the EPA noise regulations for
these vehicles.
Table 1: Maximum Noise Emission Levels as Required by EPA for Newly Manufactured Trucks
with GVWR Over 4,525 Kilograms
Effective Date January 1, 1988
Maximum Noise Level 15 Meters from Centerline of Travel
Using the Society of Automotive Engineers, Inc. (SAE), test
procedure for acceleration under 56 kph
2
80 dBA
For existing (in-use) medium and heavy trucks with a GVWR of more than 4,525 kilograms, the Federal
government has authority to regulate the noise emission levels only for those that are engaged in interstate
commerce. Regulation of all other in-use vehicles must be done by State or local governments. The EPA emission
level standards for in-use medium and heavy trucks engaged in interstate commerce are shown in Table 2 and are
enforced by the FHWA OMCS.
Table 2: Maximum Noise Emission Levels as Required by EPA for In-Use Medium and Heavy Trucks
with GVWR Over 4,525 Kilograms Engaged in Interstate Commerce
Effective Date Speed Maximum Noise Level 15 Meters from Centerline of Travel
January 8, 1986 < 56 kph 83 dBA
January 8, 1986 > 56 kph 87 dBA
January 8, 1986 Stationary 85 dBA
Highway Project Noise Mitigation
The National Environmental Policy Act (NEPA) of 1969 provides broad authority and responsibility for evaluating
and mitigating adverse environmental effects including highway traffic noise. The NEPA directs the Federal
government to use all practical means and measures to promote the general welfare and foster a healthy
environment.
A more important Federal legislation which specifically involves abatement of highway traffic noise is the
Federal-Aid Highway Act of 1970. This law mandates FHWA to develop noise standards for mitigating highway
traffic noise.

The law requires promulgation of traffic noise-level criteria for various land use activities. The law further provides
that FHWA not approve the plans and specifications for a federally aided highway project unless the project
includes adequate noise abatement measures to comply with the standards. The FHWA has developed and
implemented regulations for the mitigation of highway traffic noise in federally-aided highway projects.
The FHWA regulations for mitigation of highway traffic noise in the planning and design of federally aided
highways are contained in 23 CFR 772. The regulations require the following during the planning and design of a
highway project: (1) identification of traffic noise impacts; (2) examination of potential mitigation measures; (3)
the incorporation of reasonable and feasible noise mitigation measures into the highway project; and (4)
coordination with local officials to provide helpful information on compatible land use planning and control. The
regulations contain noise abatement criteria which represent the upper limit of acceptable highway traffic noise for
different types of land uses and human activities. The regulations do not require that the abatement criteria be met
in every instance. Rather, they require that every reasonable and feasible effort be made to provide noise mitigation
when the criteria are approached or exceeded. Compliance with the noise regulations is a prerequisite for the
granting of Federal-aid highway funds for construction or reconstruction of a highway.
NOISE FUNDAMENTALS
As we all know, sound is created when an object moves; the rustling of leaves as the wind blows, the air passing
through our vocal chords, the almost invisible movement of the speakers on a stereo. The movements cause
vibrations of the molecules in air to move in waves like ripples on water. When the vibrations reach our ears, we
hear what we call sound.
Noise is defined as unwanted sound. Sound is produced by the vibration of sound pressure waves in the air. Sound
pressure levels are used to measure the intensity of sound and are described in terms of decibels. The decibel (dB)
is a logarithmic unit which expresses the ratio of the sound pressure level being measured to a standard reference
level. Sound is composed of various frequencies, but the human ear does not respond to all frequencies.
Frequencies to which the human ear does not respond must be filtered out when measuring highway noise levels.
Sound-level meters are usually equipped with weighting circuits which filter out selected frequencies. It has been
found that the A-scale on a sound-level meter best approximates the frequency response of the human ear. Sound
pressure levels measured on the A-scale of a sound meter are abbreviated dBA.
In addition to noise varying in frequency, noise intensity fluctuates with time. In the past few years, there has been
a definite trend toward the use of the equivalent (energy-average) sound level as the descriptor of environmental
noise in the U.S. The equivalent sound level is the steady- state, A-weighted sound level which contains the same
amount of acoustic energy as the actual time-varying, A-weighted sound level over a specified period of time. If the
time period is l hour, the descriptor is the hourly equivalent sound level, L eq(h), which is widely used by SHAs as a
descriptor of traffic noise. An additional descriptor, which is sometimes used, is the L 10. This is simply the
A-weighted sound level that is exceeded 10 percent of the time.
A few general relationships may be helpful at this time in understanding sound generation and propagation. First, as
already mentioned above, decibels are logarithmic units. Consequently, sound levels cannot be added by ordinary
arithmetic means. A chart for decibel addition is shown in Table 1. From this table it can be seen that the sound
pressure level from two equal sources is 3 dB greater than the sound pressure level of just one source. Therefore,
two trucks producing 90 dB each will combine to produce 93 dB, not 180 dB. In other words, a doubling of the
noise source produces only a 3 dB increase in the sound pressure level. Studies have shown that this increase is
barely detectable by the human ear.
3

Sound Level
Change
Table 3: Decibel Changes, Loudness, and Energy Loss
Relative Loudness Acoustic Energy Loss
0 dBA Reference 0
-3 dBA Barely Perceptible Change 50%
-5 dBA Readily Perceptible Change 67%
-10 dBA Half as Loud 90%
-20 dBA 1/4 as Loud 99%
-30 dBA 1/8 as Loud 99.9%
Table 4: Rules for Combining Sound Levels by "Decibel Addition"
For noise levels known or desired to an accuracy or +l decibel (acceptable for traffic noise
analyses):
When two decibel values differ by Add the following amount to the higher value
0 or l dB 3 dB
2 or 3 dB 2 dB
4 to 9 dB 1 dB
10 dB or more 0 dB
Secondly, an increase or decrease of 10 dB in the sound pressure level will be perceived by an observer to be a
doubling or halving of the sound. For example, a sound at 70 dB will sound twice as loud as a sound at 60 dB.
Finally, sound intensity decreases in proportion with the square of the distance from the source. Generally, sound
levels for a point source will decrease by 6 dBA for each doubling of distance. Sound levels for a highway line
source vary differently with distance, because sound pressure waves are propagated all along the line and overlap at
the point of measurement. A long, closely spaced continuous line of vehicles along a roadway becomes a line
source and produces a 3 dBA decrease in sound level for each doubling of distance. However, experimental
evidence has shown that where sound from a highway propagates close to "soft" ground (e.g., plowed farmland,
grass, crops, etc.), the most suitable dropoff rate to use is not 3 dBA but rather 4.5 dBA per distance doubling. This
4.5 dBA dropoff rate is usually used in traffic noise analyses.
For the purpose of highway traffic noise analyses, motor vehicles fall into one of three categories: (l) automobiles -
vehicles with two axles and four wheels, (2) medium trucks - vehicles with two axles and six wheels, and (3) heavy
trucks - vehicles with three or more axles. The emission levels of all three vehicle types increase as a function of
the logarithm of their speed.
4

The level of highway traffic noise depends on three things: (l) the volume of the traffic, (2) the speed of the traffic,
and (3) the number of trucks in the flow of the traffic. Generally, the loudness of traffic noise is increased by
heavier traffic volumes, higher speeds, and greater numbers of trucks. Vehicle noise is a combination of the noises
produced by the engine, exhaust, and tires. The loudness of traffic noise can also be increased by defective mufflers
or other faulty equipment on vehicles. Any condition (such as a steep incline) that causes heavy laboring of motor
vehicle engines will also increase traffic noise levels. In addition, there are other, more complicated factors that
affect the loudness of traffic noise. For example, as a person moves away from a highway, traffic noise levels are
reduced by distance, terrain, vegetation, and natural and manmade obstacles. Traffic noise is not usually a serious
problem for people who live more than 150 meters from heavily traveled freeways or more than 30 to 60 meters
from lightly traveled roads.
FHWA NOISE REGULATIONS
The current FHWA procedures for highway traffic noise analysis and abatement are contained in 23 CFR 772,
"Procedures for Abatement of Highway Traffic Noise and Construction Noise." These procedures specify the
requirements that SHAs must meet when using Federal-aid funds for highway projects.
This discussion will address those requirements and point out the most important issues related to the requirements.
Each paragraph of 23 CFR 772 will be presented in boldface type and followed by a discussion of that paragraph.
Some parts are self-explanatory and need only a sentence or two of discussion. Other, more complicated paragraphs
will have greater discussion.
772.1: PURPOSE. To provide procedures for noise studies and noise abatement measures to help
protect the public health and welfare, to supply noise abatement criteria, and to establish
requirements for information to be given to local officials for use in the planning and design of
highways approved pursuant to Title 23, United States Code (U.S.C.).
The protection of the public's health and welfare is an important responsibility that FHWA helps to accomplish
during the planning and design of a highway project. The U.S. Congress has directed that this be done when the
1970 Federal-Aid Highway Act was passed. Concerned citizens and States encouraged Congress to provide this
protection.
772.3: NOISE STANDARDS. The highway traffic noise prediction requirements, noise analyses,
noise abatement criteria, and requirements for informing local officials in this directive
constitute the noise standards mandated by 23 U.S.C. 109(i). All highway projects which are
developed in conformance with this directive shall be deemed to be in conformance with the
Federal Highway Administration (FHWA) noise standards.
This paragraph makes the whole 23 CFR 772 the FHWA noise standard. The standard is required by 23 U.S.C.
109(i). Some people mistake the noise abatement criteria for the FHWA standard. Early on, FHWA did not want to
be restricted to specific noise levels that may not be achieved in most highway projects. So, a standard was
developed that would best serve the public in terms of protection and reasonable cost.
772.5: DEFINITIONS
a. Design Year - the future year used to estimate the probable traffic volume for which a
highway is designed. A time, 10 to 20 years, from the start of construction is usually
used.
5

. Existing Noise Levels - the noise, resulting from the natural and mechanical
sources and human activity, considered to be usually present in a particular
area.
c. L 10 - the sound level that is exceeded 10 percent of the time (the 90th percentile)
for the period under consideration.
d. L 10(h) - the hourly value of L 10.
e. L eq - the equivalent steady-state sound level which in a stated period of time
contains the same acoustic energy as a time-varying sound level during the same
period.
f. L eq(h) - the hourly value of L eq.
g. Traffic Noise Impacts - impacts which occur when the predicted traffic noise
levels approach or exceed the noise abatement criteria (Table 5), or when the
predicted traffic noise levels substantially exceed the existing noise levels.
h. Type I Projects - a proposed Federal or Federal-aid highway project for the
construction of a highway on new location or the physical alteration of an
existing highway which significantly changes either the horizontal or vertical
alignment or increases the number of through-traffic lanes.
i. Type II Projects - a proposed Federal or Federal-aid highway for noise
abatement on an existing highway.
Most of these definitions are self-explanatory. However, the definition for "Traffic Noise Impacts" warrants further
attention. A traffic noise impact occurs when the predicted levels approach or exceed the noise abatement criteria
(NAC) or when predicted traffic noise levels substantially exceed the existing noise level, even though the predicted
levels may not exceed the NAC. This definition reflects the FHWA position that traffic noise impacts can occur
under either of two separate conditions: (1) when noise levels are unacceptably high (absolute level); or (2) when a
proposed highway project will substantially increase the existing noise environment (substantial increase). In order
to adequately assess the noise impact of a proposed project, both criteria must be analyzed. While the FHWA noise
regulations do not define "approach or exceed, all SHAs must establish a definition of "approach" that is at least 1
dBA less than the NAC for use in identifying traffic noise impacts in traffic noise analyses.
6

Table 5: Noise Abatement Criteria (NAC)
Hourly A-Weighted Sound Level in Decibels (dBA)*
Activity
Category
A 57
(Exterior)
B 67
(Exterior)
C 72
(Exterior)
L eq(h) L 10(h) Description of Activity Category
60
(Exterior)
70
(Exterior)
75
(Exterior)
D -- -- Undeveloped lands.
E 52
(Interior)
55
(Interior)
* Either L eq(h) or L 10(h) (but not both) may be used on a project.
Lands on which serenity and quiet are of extraordinary significance
and serve an important public need and where the preservation of
those qualities is essential if the area is to continue to serve its
intended purpose.
Picnic areas, recreation areas, playgrounds, active sports areas,
parks, residences, motels, hotels, schools, churches, libraries, and
hospitals.
Developed lands, properties, or activities not included in Categories
A or B above.
Residences, motels, hotels, public meeting rooms, schools,
churches, libraries, hospitals, and auditoriums.
NOTE: These sound levels are only to be used to determine impact. These are the absolute levels where
abatement must be considered. Noise abatement should be designed to achieve a substantial noise
reduction - not the noise abatement criteria.
In developing the NAC contained in the noise regulations, the FHWA attempted to strike a balance between that
which is most desirable and that which is feasible. Factors such as technical feasibility, the unique characteristics of
highway-generated noise, cost, overall public interest, and other agency objectives were important elements in the
process of setting a standard. Establishing values for the NAC was approached by attempting to balance the control
of future increases in highway noise levels and the economic, physical, and aesthetic considerations related to noise
abatement measures. Numerous approaches were considered in establishing the criteria, including (1) hearing
impairment, (2) annoyance, sleep, and task interference or disturbance, and (3) interference with speech
communication. The first deals in terms of very loud noises seldom encountered for a highway project beyond the
roadway proper. The second approach was desirable in principle but was insufficiently researched to be useful in
practice. However, the third approach - speech interference - was usefully applied to the problem of highway traffic
noise. Thus, it should be remembered that the NAC are based upon noise levels associated with interference of
speech communication and that the NAC are a compromise between noise levels that are desirable and those that are
achievable. FHWA believes that our regulations provide a well-balanced approach to the problem of
highway-traffic-generated noise.
The NAC are not magical numbers. Traffic noise impacts can occur below the NAC. The NAC should not be
viewed as Federal standards or desirable noise levels; they should not be used as design goals for noise barrier
construction. All of the regulations contained in 23 CFR 772 constitute the standards mandated by the Federal-Aid
Highway Act of 1970. Noise abatement should be designed to achieve a substantial noise reduction, which SHAs
have defined in practice to be in the range of 5-10 dBA. The NAC should only be used as absolute values which,
when approached or exceeded, require the consideration of traffic noise abatement measures.
The 23 CFR 772 purposefully provides the SHAs with flexibility to establish their own definition of "substantial
increase." A 10 dBA increase in noise levels is a doubling of the perceived loudness. A 15 dBA increase in noise
levels represents more than a doubling of the loudness. Factors such as available resources, the public's attitudes
7

toward highway traffic noise, and the absolute noise levels may influence a State's definition. The FHWA will
accept a well-reasoned definition that is uniformly and consistently applied. Several SHA definitions have evolved
and are shown in Table 6.
Table 6: Criteria Used by States to Define "Substantial"
Criteria 1 0-5
5-15
>15
Criteria 2 10
Criteria 3 0-5
5-10
10-15
>15
Increase (dB) Subjective Descriptor
8
Little increase
Some increase
Substantial increase
Little increase
Substantial increase
No increase
Minor increase
Moderate increase
Substantial increase
The use of subjective descriptors to describe traffic noise impacts is not required. Traffic noise impacts occur based
upon the definition contained in 23 CFR 772. This definition does not contain subjective descriptors. If impacts
are identified, noise abatement measures must be considered and implemented if found to be reasonable and
feasible. When analyzing the reasonableness of abatement, SHAs should consider the relationship between the
absolute noise levels and the extent of the increase over existing noise levels for a given situation. A small increase
at a higher absolute level (e.g., 70 dBA to 75 dBA) can be more important and justify greater consideration than a
similar increase at a lower absolute level (e.g, 50 dBA to 55 dBA). Likewise, a large increase at a lower absolute
level (e.g., 40 dBA to 55 dBA) can be less important and justify less consideration than a similar increase at a
higher absolute level (e.g., 55 dBA to 70 dBA).
772.7: APPLICABILITY:
a. Type I Projects. This directive applies to all Type I projects unless it is specifically
indicated that a section applies only to Type II projects.
b. Type II Projects. The development and implementation of Type II projects are
not mandatory requirements of
23 U.S.C. 109(i) and are, therefore, not required by this directive. When Type II
projects are proposed for Federal-aid highway participation at the option of the
highway agency, the provisions of paragraphs 6, 8, and 11 of this directive shall
apply.
The regulation applies to all Type I and Type II projects. The implementation of a Type II program is optional and
not mandatory.

772.9: ANALYSIS OF TRAFFIC NOISE IMPACTS AND ABATEMENT MEASURES
a. The hi ghway agency shall determine and analyze expected traffic noise impacts
and alternative noise abatement measures to mitigate these impacts, giving
weight to the benefits and cost of abatement, and to the overall social, economic
and environmental effects.
b. The traffic noise analysis shall include the following for each alternative under
detailed study:
(1) identification of existing activities, developed lands, and
undeveloped lands for which development is planned, designed
and programmed, which may be affected by noise from the
highway;
(2) prediction of traffic noise levels;
(3) determination of existing noise levels;
(4) determination of traffic noise impacts; and
(5) examination and evaluation of alternative noise abatement
measures for reducing or eliminating the noise impacts.
c. Highway agencies proposing to use Federal-aid highway funds for Type II
projects shall perform a noise analysis of sufficient scope to provide information
needed to make the determination required by paragraph 772.13a of
this directive.
Paragraph 772.9a is the major requirement for doing noise analyses on all
Type I projects. However, this requirement includes the evaluation of noise reduction benefits, abatement cost, and
social, economic, and environmental (SEE) effects. This evaluation requires a balancing by the SHA of benefits
versus disbenefits. This can be a difficult task because very little guidance exists on this topic. Noise reduction
benefits and abatement cost will be discussed in detail in paragraph 772.11. The process of balancing noise
abatement and the SEE effects of the mitigation is strongly influenced by the public involvement process. The
people who live next to the highway project can best evaluate if the abatement benefits will outweigh the SEE
effects. The SHAs should not do this evaluation without public involvement. It is also important to remember that
noise abatement consideration should be an inherent project consideration that is not handled separately but is
incorporated and considered in the total project development decision.
Paragraph 772.9b lists the minimum requirements needed to adequately evaluate the impacts and abatement for each
alternative under detailed study for the proposed highway project. The analysis should present the noise impacts
and evaluation of alternative abatement measures in a comparative format. In this way, the potential noise impacts
and likely abatement measures associated with the various alternatives, including the "no-build" alternative, are
clearly defined. Detailed procedures on how to do the analysis exists in the text of the National Highway Institute
noise training course, "Fundamentals and Abatement of Highway Traffic Noise."
Paragraph 772.9b(1) requires the identification of existing activities and developed lands. This identification
includes not only the type (e.g., residential, commercial), but the number or extent of activities. This quantification
is often overlooked in the analysis. The extent of the noise impact on the people living near the highway project
cannot be evaluated correctly without the quantification of the existing activities.
9

Paragraph 772.9b(1) also requires noise analysis for undeveloped lands for which development is "planned,
designed, and programmed." The terms "... planned, designed, and programmed ..." mean that: 1) a definite
commitment has been made to develop the property in question, and 2) there is also official knowledge (such as
through a public agency) that such development has been "planned, designed, and programmed." A definite
commitment means that a developer has shown a definite interest to develop the land within a reasonable period of
time and has reached a point where he can no longer practically change his plans.
The exact date for determining when undeveloped land is "... planned, designed, and programmed ..." for
development is not specified in 23 CFR 772. Each SHA and accompanying FHWA Division Office should
establish a mutually acceptable specific date that is appropriate for the development process in their respective State.
One specific date that has evolved is the date of issuance of a building permit. Other dates used by States include
the date of final approval of the development plan and the date of recording of the plat plan. Any of these dates are
in conformance with FHWA policy.
772.11: NOISE ABATEMENT
a. In determining and abating traffic noise impacts, primary consideration is to be
given to exterior areas. Abatement will usually be necessary only where
frequent human use occurs and a lowered noise level would be of benefit.
b. In those situations where there are no exterior activities to be affected by the
traffic noise, or where the exterior activities are far from or physically shielded
from the roadway in a manner that prevents an impact on exterior activities, the
interior criterion shall be used as the basis of determining noise impacts.
In most situations, if the exterior area can be protected, the interior will also be protected. The selection of the
exterior area where "frequent human use occurs" is very important. This requires a site visit to determine whether
people are using the entire exterior area or only a small portion, like a patio or porch. Some States choose the
right-of-way line (a point farthest away from a house) to be on the conservative side when doing the noise impact
analysis. Interior use applies mostly to hospitals and schools.
Interior noise level predictions may be computed by subtracting from the predicted exterior levels the noise
reduction factors for the building in question. If field measurements of these noise reduction factors are obtained or
the factors are calculated from detailed acoustical analyses, the measured or calculated reduction factors should be
used. In the absence of such calculations or field measurements, the noise reduction factors may be obtained from
the following table:
Table 7: Building Noise Reduction Factors
Noise Reduction Due to Exterior of the
Building Type Window Condition Structure
All Open 10 dB
Light Frame Ordinary Sash (closed) 20 dB
Storm Windows 25 dB
Masonry Single Glazed 25 dB
Masonry Double Glazed 35 dB
NOTE: The windows shall be considered open unless there is firm knowledge that the windows are in fact
kept closed almost every day of the year.
10

c. If a noise impact is identified, the abatement measures listed in paragraph
772.13c of this directive must be considered.
This self-explanatory paragraph requires consideration of noise abatement when noise impacts occur. As noted in
paragraph 772.5g, noise impacts occur when noise levels approach or exceed the noise abatement criteria or when
predicted levels substantially exceed existing levels. Consequently, this paragraph requires consideration of noise
abatement for both of these types of noise impacts.
d. When noise abatement measures are being considered, every reasonable effort
shall be made to obtain substantial noise reductions.
Abatement must provide at least a 5 dBA reduction in highway traffic noise levels in order to provide noticeable and
effective attenuation. When noise abatement is proposed, it is recommended that an attempt be made to achieve the
greatest reduction possible. SHAs have generally defined substantial reduction to be in the range of 5-10 dBA.
This paragraph does not say to reduce to the noise abatement criteria; it says "substantial noise reductions."
Consequently, a projected noise level of L eq 69 for a Category B activity (see Table 5) should not be abated merely
to the noise abatement criterion of L eq 67, but rather a substantial reduction should be obtained (at least 5 dBA).
The choice of what minimum reduction to strive for is certainly a subjective one and is probably related to data
found in technical literature, such as the following table.
Table 8: Relationship Between Decibel, Energy, and Loudness
A-Level Down Remove % of Energy Divide Loudness by
3 dBA 50 1.2
6 dBA 75 1.5
10 dBA 90 2
20 dBA 99 4
A reduction of 10 dBA (say 75 dBA to 65 dBA) will be perceived by the public as a halving of the loudness. This
is an easily recognizable change. 5 dBA and 7 dBA changes can also be recognized, but to a lesser degree. Two
points should be kept in mind: (1) any reduction will improve the noise environment in such areas as annoyance,
speech interference, task interference, etc., and (2) no matter what the reduction, until the level reaches a very low
level (about L eq = 55 dBA), the noise environment will continue to be dominated by traffic noise that is clearly
audible.
e. Before adoption of a final environmental impact statement or finding of no
significant impact, the highway agency shall identify:
(1) noise abatement measures which are reasonable and feasible and
which are likely to be incorporated in the project, and
(2) noise impacts for which no apparent solution is available.
This paragraph ties the noise regulation to the NEPA requirements. An important point is that the requirements for
the draft environmental impact statement (EIS) are the same as the final. Therefore, the information for both
772.11e(1) and 772.11e(2) are needed in the draft EIS and the final EIS. The choice of the word "likely" was
deliberate. If a decisionmaker is to make an informed decision and if the public is to be made aware of the impacts,
the State must make its intentions known. If the State later decides that mitigation is not warranted, the decision
11

should have strong support. If the State would like to qualify the word "likely," this is acceptable. When a project
involves consideration of more than one barrier, a statement of "likelihood" for each barrier should be included in
the environmental document. The following is an illustration of some appropriate words.
Based on the studies so far accomplished, the State intends to install noise abatement measures in the
form of a barrier at . These preliminary indications of
likely abatement measures are based upon preliminary design for a barrier cost of $ that will
reduce the noise level by dBA for residents. If it subsequently develops during final
design that these conditions have substantially changed, the abatement measures might not be
provided. A final decision of the installation of the abatement measure(s) will be made upon
completion of the project design and the public involvement processes.
f. The views of the impacted residents will be a major consideration in reaching a
decision on the reasonableness of abatement measures to be provided.
The views of the impacted residents should be a major consideration in determining the reasonableness of traffic
noise abatement measures for proposed highway construction projects. The views should be determined and
addressed during the environmental phase of project development. The will and desires of the general public should
be an important factor in dealing with the overall problems of highway traffic noise. SHAs should incorporate
traffic noise consideration in their on-going activities for public involvement in the highway program, i.e., the
residents' views on the desirability and acceptability of abatement need to be reexamined periodically during project
development.
g. The plans and specifications will not be approved by FHWA unless those noise
abatement measures which are reasonable and feasible are incorporated into the
plans and specifications to reduce or eliminate the noise impact on existing
activities, developed lands, or undeveloped lands for which development is
planned, designed, and programmed.
This is a summary statement of the requirements in the 1970 Federal-Aid Highway Act [23 U.S.C. 109(i)].
The key words in this paragraph are "reasonable" and "feasible." For a thorough explanation of reasonableness and
feasibility of abatement, see the discussion on pp. 50-56.
772.13: FEDERAL PARTICIPATION
a. Federal funds may be used for noise abatement measures where:
(1) a traffic noise impact has been identified,
(2) the noise abatement measures will reduce the traffic noise impact,
and
(3) the overall noise abatement benefits are determined to outweigh
the overall adverse social, economic, and environmental effects
and the costs of the noise abatement measures.
Paragraph 772.13a identifies the simple rules that guide the funding of noise abatement on highway projects. These
rules apply to both Type I and Type II projects.
12

Federal-aid highway funds may not be used as payment or compensation for a traffic noise impact through the
purchase of a noise easement from a property owner. The FHWA noise regulations clearly indicate that Federal
funds may only be used to reduce traffic noise impacts and provide noise abatement benefits. Monetary
compensation accomplishes neither of these requirements.
Federal-aid funds may be used in compensation paid during right-of-way negotiations for a partial taking of
property. Noise, air quality, access, visual quality, etc. are frequently considered jointly in determining this
compensation, which is regarded as part of right-of-way acquisition, not environmental mitigation.
b. For Type II projects, noise abatement measures will not normally be approved
for those activities and land uses which come into existence after May 14, 1976.
However, noise abatement measures may be approved for activities and land
uses which come into existence after May 14, 1976, provided local authorities
have taken measures to exercise land use control over the remaining
undeveloped lands adjacent to highways in the local jurisdiction to prevent
further development of incompatible activities.
Paragraph 772.13b limits funding participation for retrofit barriers on existing highways because in 1976 FHWA
publicly stated that local governments must help control noise impacts through noise-compatible land-use planning
and zoning. However, it is important to remember that this paragraph does not prohibit the approval of Type II
barriers after 1976. It says that the land use activity (housing development) built near a highway after 1976 usually
cannot get a Type II barrier unless the local government has an active land use control program to prevent future
incompatible activities (e.g., zoning requirements, noise-sensitive growth and development procedures, local
ordinances). The FHWA has not rigidly applied this requirement in the past. However, after the date of issuance of
this guidance, Type II abatement projects for new activities and land uses which come into existence may only be
approved if an active local land use control program was adopted prior to existence of the new activities and land
uses. EXAMPLE: A Type II noise barrier is requested for homes that were constructed prior to a local
community's adoption of an active noise-compatible land use control program. Type II abatement may not be
approved for this location. SHAs should be certain to make local officials aware of this requirement (see paragraph
772.15 on page 18).
c. The noise abatement measures listed below may be incorporated in Type I and
Type II projects to reduce traffic noise impacts. The costs of such measures may
be included in Federal-aid participating project costs with the Federal share
being the same as that for the system on which the project is located, except that
Interstate construction funds may only participate in Type I projects.
(1) traffic management measures (e.g., traffic control devices and
signing for prohibition of certain vehicle types, time-use
restrictions for certain vehicle types, modified speed limits, and
exclusive land designations),
(2) alteration of horizontal and vertical alignments,
(3) acquisition of property rights (either in fee or lesser interest) for
construction of noise barriers,
(4) construction of noise barriers (including landscaping for aesthetic
purposes) whether within or outside the highway right-of-way.
Interstate construction funds may not participate in landscaping,
13

(5) acquisition of real property or interests therein (predominately
unimproved property) to serve as a buffer zone to preempt
development which would be adversely impacted by traffic noise.
This measure may be included in Type I projects only, and
(6) noise insulation of public use or nonprofit institutional structures.
Two important points about this paragraph are: (l) the participating share is the same as that for the system on
which the project is located; (2) buffer zones can only be used in Type I projects. The potential use of buffer zones
applies to predominantly unimproved property. This authority is not used to purchase homes or developed property
to create a noise buffer zone. It is used to purchase unimproved property to preclude future noise impacts where
development has not yet occurred.
Although most noise mitigation has been implemented along Interstate highways, Federal funds may be used for
mitigation measures along other types of highways if the noise impacts exist and the criteria in 772.13a are met.
The most-used abatement measure is the noise barrier; however, paragraph 772.11c requires consideration of all the
abatement measures listed in paragraph 772.13c. Noise insulation may only routinely be considered for public use
or nonprofit institutional structures, e.g., churches, schools, hospitals, libraries, etc. Private dwellings may only be
noise-insulated under the provisions of Section 772.13d.
The purchase of a noise easement, in locations where traffic noise impacts are expected to occur or already exist,
should not be considered as a noise abatement measure. It does not reduce noise levels or abate the impacts. It only
provides monetary compensation and is, thus, not eligible for Federal-aid participation.
d. There may be situations where (1) severe traffic noise impacts exist or are
expected, and (2) the abatement measures listed above are physically infeasible
or economically unreasonable. In these instances, noise abatement measures
other than those listed in paragraph 771.13c of this directive may be proposed
for Type I and II projects by the highway agency and approved by the Regional
Federal Highway Administrator on a case-by-case basis when the conditions of
paragraph 772.13a of this directive have been met.
This paragraph allows the States the flexibility to propose innovative noise abatement measures when severe traffic
noise impacts are anticipated and normal abatement measures are physically infeasible or economically
unreasonable. In these instances, the Regional Federal Highway Administrator may approve a State's request for
unusual or extraordinary abatement measures on a case-by-case basis. When considering extraordinary abatement
measures, the State must demonstrate that the affected activities experience traffic noise impacts to a far greater
degree than other similar activities adjacent to highway facilities, e.g, residential areas with absolute noise levels of
75 dBA L eq(h) or more, residential areas with noise level increases of 30 dBA or more over existing noise levels.
Examples of extraordinary abatement measures would be the noise insulation of private residences or the purchase
of private dwellings from willing sellers.
772.15: INFORMATION FOR LOCAL OFFICIALS In an effort to prevent future
traffic noise impacts on currently undeveloped lands, highway agencies shall
inform local officials within whose jurisdiction the highway project is located of
the following:
a. The best estimation of future noise levels (for various distances from the
highway improvement) for both developed and undeveloped lands or properties
in the immediate vicinity of the project,
14

. Information that may be useful to local communities to protect future land
development from becoming incompatible with anticipated highway noise levels,
and
c. eligibility for Federal-aid participation for Type II projects as described in
paragraph 772.13b of this directive.
The prevention of future impacts is one of the most important parts of noise control. The compatibility of the
highway and its neighbors is essential for the continuing growth of local areas. Both development and highways
can be compatible. But, local government officials need to know what noise levels to expect from a highway and
what techniques they can use to prevent future impacts. States can help by providing this information to local
governments; such information should be made available for disclosure in real estate transactions.
Highway traffic noise should be reduced through a program of shared responsibility. Thus, the FHWA encourages
State and local governments to practice compatible land use planning and control in the vicinity of highways. Local
governments should use their power to regulate land development in such a way that noise-sensitive land uses are
either prohibited from being located adjacent to a highway, or that the developments are planned, designed, and
constructed in such a way that noise impacts are minimized. Local officials should be made aware of the
requirement for the adoption of an active noise-compatible land use control program for approval of Type II
abatement (see paragraph 772.13b on page 16).
772.17: TRAFFIC NOISE PREDICTION
a. Any traffic noise prediction method is approved for use in any
noise analysis required by this directive if it generally meets the
following two conditions:
(1) The methodology is consistent with the methodology
in the FHWA Highway Traffic Noise Prediction
Model (Report No. FHWA-RD-77-108).
(2) The prediction method uses noise emission levels
obtained from one of the following:
(a) National Reference Energy Mean Emission
Levels as a Function of Speed (Figure 1).
(b) Determination of reference energy mean
emission levels in "Sound Procedures for
Measuring Highway Noise: Final Report,"
Report
No. DP-45-1R.
b. In predicting noise levels and assessing noise impacts, traffic
characteristics which will yield the worst hourly traffic noise
impact on a regular basis for the design year shall be used.
Most States use the FHWA highway traffic noise prediction model (FHWA model) with its national emission
levels. If a State uses different emission levels, documentation must be provided to the FHWA Division Office to
justify its use. Paragraph 772.17a(2)(b) specifies that the method in Report No. DP-45-1R be used to obtain these
emission levels. The FHWA Division Office should forward the proposed emission levels to FHWA Headquarters
for review and comment. Some States have modified computer versions of the FHWA model to change
input/output characteristics to suit the State's design process.
15

Traffic characteristics used in predicting future noise levels could make a substantial difference in the results.
"Worst hourly traffic noise impact" occurs at a time when truck volumes and vehicle speeds are the greatest,
typically when traffic is free-flowing and at or near level of service C conditions. The numbers of medium and
heavy trucks are very important.
SHAs should use either the posted speed limit or the operating speed (highest overall speed at which a driver can
travel on a given highway under favorable weather conditions and under prevailing traffic conditions, without at any
time exceeding the safe speed as determined by the design speed on a section-by-section basis) to predict traffic
noise levels. SHAs are required to use the operating speed if it is determined to be consistently higher than the
posted speed limit. In determining the operating speed along an existing highway, the first step is to identify the
time period during which the worst traffic noise impacts are expected to occur. Then, the speed may be determined
by actually driving a vehicle in the traffic stream and recording the average speed. It may also be determined by
using radar meters or other devices to measure speeds at a point along the highway (making no adjustments to the
actual instrument measurements). Such measured speeds are then arithmetically averaged to calculate a time mean
speed (as defined in Highway Capacity Manual: Special Report 209). Either the "traffic stream" speed or the time
mean speed can be used to represent the operating speed.
772.19. CONSTRUCTION NOISE
The following general steps are to be performed for all Types I and II projects:
a. Identify land uses or activities which may be affected by noise from construction
of the project. The identification is to be performed during the project
development studies.
b. Determine the measures which are needed in the plans and specifications to
minimize or eliminate adverse construction noise impacts to the community.
This determination shall include a weighing of the benefits achieved and the
overall adverse social, economic, and environmental effects and the costs of the
abatement measures.
c. Incorporate the needed abatement measures in the plans and specifications.
The impact of construction noise does not appear to be serious in most instances. FHWA Technical Advisory T
6160.2, "Analysis of Highway Construction Noise," outlines procedures for the analysis of highway construction
noise. The following items should be considered to ensure that potential construction noise impacts are given
adequate consideration during highway project development:
a. Calculation of construction noise levels is usually not necessary for traffic noise analyses. If a
construction noise impact is anticipated at a particular sensitive receptor, use of the model contained
in "Highway Construction Noise: Measurement, Prediction, and Mitigation" to predict construction
noise levels should be sufficient. The computerized prediction model HICNOM is quite
sophisticated and requires considerable input, and, therefore, should be used only on highly complex
or controversial major urban projects.
b. Potential impacts of highway construction noise should be addressed in a general manner for traffic
noise analyses. The temporary nature of the impacts should be noted. An indication of the types of
construction activities that can be anticipated and the noise levels typically associated with these
activities can be obtained from existing literature and presented in the noise analysis.
16

c. Utilizing a common-sense approach, traffic noise analyses should identify measures to mitigate
potential highway construction noise impacts. Low-cost, easy-to-implement measures should be
incorporated into project plans and specifications (e.g., work-hour limits, equipment muffler
requirements, location of haul roads, elimination of "tail gate banging," reduction of backing up for
equipment with alarms, community rapport, complaint mechanisms).
d. Major urban projects with unusually severe highway construction noise impacts require more
extensive analyses. Sensitive receptors should be identified, existing noise levels should be
measured, construction noise levels should be predicted, and impacts should be discussed so as to
properly indicate their severity. Mitigation measures likely to be incorporated into these projects may
be quite costly and should be thoroughly discussed and justified in the analyses. The use of portable
noise barriers and special quieting devices on construction equipment have been used for
construction noise mitigation.
17

Figure 1: Reference Energy Mean Emission Levels
National Reference Energy Mean Emission Levels as a Function of Speed
90
85
80
75
70
65
60
55
50 60 70 80 90 100
Speed
Automobiles
Medium Trucks
Heavy Trucks
NOTE: Automobiles: All vehicles with two axles and four wheels
Medium Trucks: All vehicles with two axles and six wheels
Heavy Trucks: All vehicles with three or more axles
18

HIGHWAY TRAFFIC NOISE ANALYSIS AND DOCUMENTATION
The major objectives of a noise study for new highway construction or a highway improvement are:
! To define areas of potential noise impact for each study alternative
! To evaluate measures to mitigate these impacts
! To compare the various study alternatives on the basis of potential noise impact and the associated
mitigation costs
Traffic noise studies thus provide useful information, directed primarily to two distinctly different audiences - the
government decisionmaker and the lay public. For the government decisionmaker, the study should provide a
portion of the data needed for the informed selection of a satisfactory project alternative and appropriate mitigation
measures. For the lay public, the study should provide discussion of potential impacts in any areas of concern to the
public.
The final product of a highway traffic noise study should be a clear, concise written discussion of the study. There
should be a stand-alone discussion, a noise study report, that gives the reader a detailed description of all the
elements of the analysis done for the study, including information on noise fundamentals and regulatory
requirements. The environmental document for Type I projects, i.e., Categorical Exclusion (CE), Environmental
Assessment/Finding of No Significant Impact (EA/FONSI), Environmental Impact Statement (EIS), should contain
a brief summary of the important points found in the noise study report. The project development records should
fully document the traffic noise analysis level-of-effort expended, strategies considered, adjacent residents' views
and opinions, and a final decision on the reasonableness and feasibility of abatement.
The key elements of a highway traffic noise study are as follows:
! Definition of impact criteria and identification of noise-sensitive land uses
! Determination of existing noise levels
! Prediction of future traffic noise levels for study alternatives
! Identification of traffic noise impacts for study alternatives
! Identification and consideration of abatement
! Consideration of construction noise
! Coordination with local government officials
Definition of Impact Criteria and Identification of Noise-Sensitive Land Uses
The first step in the highway noise study is the definition of criteria for noise impact. With this definition
established, the location of noise- sensitive land uses in the vicinity of the various study alternatives can
be identified.
A noise impact occurs (1) when the projected highway noise levels approach or exceed the noise abatement criteria
in 23 CFR 772 or (2) when the projected highway noise levels substantially exceed existing noise levels in an area.
Based upon this, noise-sensitive land uses in the vicinity of each of the study alternatives that may be impacted by
future highway noise levels should be identified. Noise-sensitive areas may be identified by individual land uses, or
19

y broad categories of land use for which a single criterion level may apply. In some cases, lands that are
undeveloped at the time of the project may be known to be under consideration for development in the future.
Depending upon the certainty of development in accordance with Paragraph 772.9b(1) of 23 CFR 772 (see page
11), these lands should be treated as "planned, designed, and programmed," and the severity of highway noise
impact should be assessed accordingly.
A brief categorization of land-use types follows:
Example In this study, all land along the project is considered to fall in activity category B.
Somewhat more detail is provided by the following:
Example The region is primarily residential, although it is zoned for general business as well. Two
apartmentcomplexes and 50 residences are east of Airport Drive, at the south end. The nearest
facade of these buildings is approximately 21 meters from the road centerline, and the farthest facade
is roughly 122 meters away. The apartments house about 200 families.
Determination of Existing Noise Levels
In general, existing noise levels should be established by field measurements for all developed land uses and
activities. Field measurements should be made, since existing background noise is usually a composite from many
sources, and noise prediction models are applicable only to noise originating from a specific source. If it is clear
that existing noise levels at locations of interest are predominantly due to a highway, then the existing noise levels
may be calculated using the FHWA highway traffic noise prediction model.
When making existing noise measurements, a number of factors need to be considered: 1) time of day, e.g., peak
hour vs. any other time of day; 2) day of week, e.g., weekend day vs. work day; 3) week of year, e.g., tourist season
vs. non-tourist season; and 4) representativeness of the noise. The noise measurement should yield the worst hourly
noise level generated from representative noise sources for that area. The period with the highest sound levels may
not be at the peak traffic hour but instead, during some period when traffic volumes are lower but the truck mix or
vehicle speeds are higher.
Measurements should be made at representative locations - that is, residential neighborhoods, commercial and
industrial areas, parks, churches, schools, hospitals, libraries, etc. Measurements are normally restricted to exterior
areas of frequent human use; interior measurements are only made when there are no outside activities, such as
churches, hospitals, libraries, etc. Measurements are usually taken in one of three exterior locations: (1) at or near
the highway right-of-way line; (2) at or near buildings in residential or commercial areas; and (3) at an area between
the right-of-way line and the building where frequent human activity occurs, such as a patio or the yard of a home.
Representativeness relates to the noise typically found in a given location. Aircraft noise is usually representative
near an airport but not in areas having no airport; the noise from barking dogs is usually representative near kennels
but not in a residential neighborhood; and the noise from ambulance or police sirens is usually representative near
hospitals or police stations but not in other locations.
Measurements are made to represent an hourly equivalent sound level, L eq(h). For statistical accuracy, a minimum
of approximately eight minutes of measurements must be made. Most SHAs have automated measurement
equipment and typically measure 15-minute time periods to represent the L eq(h). This is acceptable if nothing
unusual is expected to occur during the noisiest hour. Measurements along low-volume highways may require
longer measurement periods (e.g., 30-60 minutes) to attain desirable statistical accuracy. If information is not
available to identify the noisiest hour of the day or if there is public controversy at a specific location, 24-hour
measurements are sometimes taken.
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Measurements should be made with noise meters of sufficient accuracy to yield valid data for the particular project
(ANSI S1.4-1983, TYPE II or better). Procedures should be adopted and followed so that measurements will have
consistent and supportable validity. Traffic conditions, climatic conditions, and land uses at the time of
measurement should be noted.
The following excerpt from an environmental impact statement shows how existing noise levels can be documented.
Example Figure __ is a plan map of the study area and shows the location of the noise measurement sites. The
microphone was located 1.5 meters above the ground. Measurement Site Nos. l, 2, and 4 are along
the existing Airport Drive and near the apartment buildings closest to the project roadway. These
locations were chosen to document existing noise levels and traffic conditions at the residential area
where the potential for noise impacts due to the project exists. Sites 3 and 5 are located in residential
areas near the location of the proposed extension of Airport Drive. In these areas, existing noise
levels are expected to be the lowest in the project corridor. Sites 6 and 7 are near the other roadways
in the study area that carry substantial traffic and connect to the proposed project.
The existing noise measurements were made during midday hours on June 12 and 13, 1988.
The temperature varied from 18 degrees C to 27 degrees C, and winds were light and
variable, having little effect on sound propagation over moderate distances.
Noise measurements were obtained with the BBN Model 614 portable Noise Monitor, set to
compute sound level distributions on a minute-by-minute basis. During each minute of
analysis, the ambient noise sources were noted and local traffic counts were made. The
duration of each measurement period was between 20 and 35 minutes.
Prediction of Future Traffic Noise Levels
The next step involved in the highway noise study is to analyze the noise levels expected to occur as a result of the
proposed highway or highway extension. Noise levels should be estimated for each of the potential project
alternatives, including the "do-nothing" case. The method used to predict traffic noise levels and traffic data for the
various alternatives should be well documented.
Example Prediction of the Future Traffic Noise Levels For each of the seven alternatives under consideration,
traffic noise at each receptor for the year 2000 was predicted using the FHWA Highway Traffic
Noise Prediction Model, STAMINA 2.0. This model uses the number and type of vehicles on the
planned roadway, their speeds, and the physical characteristics of the road, e.g, curves, hills,
depressed, elevated, etc. In this regard it is to be noted that only preliminary alignment and roadway
elevation characteristics were available for use in this noise analysis. Each alternative was modeled
assuming no special noise abatement measures would be incorporated. Only those existing natural or
man-made barriers were included. The roadway sections were assumed to be at-grade, except where
grade separation of intersections was necessary. Thus, the analysis represents "worst-case"
topographic conditions. The traffic volumes used in the projections were obtained from the
Metropolitan Council Regional Traffic Assignment Model. The noise predictions made in this report
are highway- related noise predictions for the traffic conditions during the design year. It was
assumed that the peak-hour volumes and corresponding speeds for trucks and automobiles result in
the noisiest conditions. During all other time periods, the noise levels will be less than those
indicated in this report.
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Identification of Traffic Noise Impacts
The next step in the noise study involves a comparison of the predicted noise levels for each project alternative with
the noise abatement criteria and existing noise levels. This comparison identifies the traffic noise impacts
associated with each alternative in terms of the change in existing levels and the amount by which criteria may be
approached or exceeded. The main purpose of this comparison is to contrast the noise impacts that are expected to
occur as a result of the highway project, for each active alternative, with the existing noise impacts.
The noise abatement criteria from 23 CFR 772 are listed in Table 5 (see page 8). Abatement must be considered
when future noise levels approach or exceed these criteria. Traffic noise analyses should recognize and consider
absolute noise levels as well as incremental increases in noise levels when identifying traffic noise impacts and
when considering noise abatement measures.
The following example illustrates a discussion of impact in an EIS:
Example A noise analysis has been conducted for the proposed actions. The greatest noise impact will be felt
at residential sites which are near the proposed loop location. Table No. 7 shows the results of this
analysis. The average impact on the selected noise sites is +12 dBA which will seem about 2½ times
as loud as the existing noise environment. The largest impacts (up to +25 dBA) will be felt at rural
residences that are now on the less traveled backroads and will be close to the proposed highway.
For the recommended Alternate 3, 52 single-family residences,12 multiple-family residences
and 2 churches equal or exceed the noise abatement criteria. Fifty-two single-family
residences, 28 multiple-family residences, 2 businesses, and 2 churches will experience a
substantial increase in existing noise levels, that is, an increase of 10 dBA or more.
Identification and Consideration of Abatement
The next step in the noise study is identification and evaluation of various noise abatement measures that could
mitigate the adverse impacts predicted for the proposed highway project. For example, traffic management
measures such as the following should be included in the evaluation:
! Prohibition of certain vehicle types
! Time use restrictions for certain vehicle types
! Modified speed limits
! Exclusive land use designations
! Traffic control devices
! Combinations of the above measures.
Additional noise abatement measures are discussed in detail in the Section V. For each abatement measure, the
following information should be presented:
! Description of the measure
! Anticipated costs, problems, and disadvantages
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! Anticipated benefits relative to the existing levels and other factors.
Examples The most likely method available to lessen the noise levels and thus alleviate noise impact from
Airport Drive is to incorporate noise control into the highway design stage. Since the alignment and
grade of Airport Drive have already been established, noise barriers beside the roadway are probably
the most acceptable means of noise control.
. . . The first location for which a noise control barrier has been designed is along Airport
Drive at the East Avenue-Fair Oaks apartment complex. The proposed barrier is located 3.6
meters from the edge of Airport Drive, is about 540 meters long, and runs from a point about
45 meters north of the edge of Niners Road at the Airport Drive intersection to about 21
meters north of the northernmost apartment building. If the top of the barrier is 3 meters
above grade level, it will provide 9-11 dB reduction in the noise levels at the nearest building,
first floor elevation (1.5 meters above ground). This will reduce the predicted exterior Leq
noise levels near these buildings from 73-74 dB to 62-65 dB.
. . . The cost of noise barriers depends directly on the material used to build it. Depending
upon material selection, barrier costs including installation may be as little as $50 per lineal
meter or as great as $250 per lineal meter. If wooden barriers are erected along Airport
Drive, the cost ofhe barrier for the apartments would be about $85,000, and the cost of the
barrier for the three homes would be about $35,000.
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Table 9: Example of Abatement Information for an EIS
Noise
Receptor
Number
Land Use
Activity
Category
Numbers by
Activity (1)
Existing and Future Exterior Noise Levels (L eq in dBA)
Average
Distance to
Roadway
Noise
Abatement
Criteria
24
Measured
Existing
Noise Level
Future Noise Levels by Project Alternative
Without and With Abatement (2)
1 (No-Build) 2 3 4
1 B 3 MF 300' 67 55 63 66/58 68/60 68/60
2 B 7 SF 170' 67 58 58 70/60 72/61 73/65
3 C 2 B 260' 72 54 55 67/60 69/60 70/63
4 B 11 SF, 7 MF 100' 67 56 62 73/65 75/65 75/69
5 B 16MF 150' 67 52 52 62/59 66/61 67/64
6 B 14 SF 170' 67 52 54 75/66 77/69 77/71
7 B 12 SF, 1 MF 200' 67 53 56 66/62 69/67 69/66
8 B 2 CH 180' 67 53 54 69/61 73/62 73/69
9 C 3 B 150' 72 62 67 69/- 69/- 70/-
10 B 7 SF, 1 MF 230' 67 57 61 69/66 69/64 70/64
(1) SF = Single-Family Residence
MF = Multiple-Family Residence
B = Business
CH = Chruch
Construction Noise Analysis
(2) 66/58: 66 = Noise Level Without Abatement
58 = Noise Level With Abatement
- = Abatement Not Considered
The consideration of construction noise must be addressed in an environmental document. The following example
illustrates a construction noise discussion from an EIS:
Example It is difficult to predict reliable levels of construction noise at a particular receptor or group of
receptors. Heavy machinery, the major source of noise in construction, is constantly moving in
unpredictable patterns. Daily construction normally occurs during daylight hours when occasional
loud noises are more tolerable. No one receptor is expected to be exposed to construction noise of
long duration; therefore, extended disruption of normal activities is not anticipated. However,
provisions will be included in the plans and specifications requiring the contractor to make every
reasonable effort to minimize construction noise through abatement measures such as work-hour
controls and maintenance of muffler systems.
Coordination with Local Government Officials
The final part of the noise study is coordination with local officials whose jurisdictions are affected. The primary
purpose of this coordination is to promote compatibility between land development and highways.
The highway agency should furnish the following information to appropriate local officials:
! Estimated future noise levels at various distances from the highway improvement.

! Locations where local communities should protect future land development from becoming
incompatible with anticipated highway noise levels.
! Information on the eligibility requirements for Federal-aid participation in Type II projects as
described in paragraph 772.13b of 23 CFR 772 (see page 16).
HIGHWAY TRAFFIC NOISE ABATEMENT
Early in the planning stages of most highway improvements, highway agencies do a noise study. The purpose of
this study is to determine if the project will create any noise problems. If the predicted noise levels cause an impact,
the noise study must consider measures that can be taken to lessen these adverse noise impacts. There are a variety
of things that a highway agency can do to lessen the impacts of highway traffic noise.
Some noise abatement measures that are possible include creating buffer zones, constructing barriers, planting
vegetation, installing noise insulation in buildings, and managing traffic.
Noise Barriers
1. Technical Considerations and Barrier Effectiveness
Noise barriers are solid obstructions built between the highway and the homes along the highway. Effective
noise barriers can reduce noise levels by 10 to 15 decibels, cutting the loudness of traffic noise in half.
Barriers can be formed from earth mounds along the road (usually called earthberms) or from high, vertical
walls. Earthberms have a very natural appearance and are usually attractive. However, an earthberm can
require quite a lot of land if it is very high. Walls take less space. They are usually limited to 8 meters in
height because of structural and aesthetic reasons. Noise walls can be built out of wood, stucco, concrete,
masonry, metal, and other materials. Many attempts are being made to construct noise barriers that are
visually pleasing and that blend in with their surroundings.
There are no Federal requirements or FHWA regulations related to the selection of material types to be used
in the construction of highway traffic noise barriers. Individual SHAs select the material types to be used
when building these barriers. The SHAs normally make this selection based on a number of factors such
aesthetics, durability and maintenance, costs, public comments, etc. The FHWA does not specify the type of
material that must be used for noise barrier construction, but the material type that is chosen must meet State
specifications which have been approved by the FHWA. The material chosen should be rigid and of
sufficient density (approximately 20 kilograms/square meter minimum) to provide a transmission loss of 10
dBA greater than the expected reduction in the noise diffracted over the top of the barrier.
Noise barriers do have limitations. For a noise barrier to work, it must be high enough and long enough to
block the view of a road. Noise barriers do very little good for homes on a hillside overlooking a road or for
buildings which rise above the barrier. A noise barrier can achieve a 5 dB noise level reduction when it is
tall enough to break the line-of-sight from the highway to the receiver and it can achieve an approximate 1.5
dB additional noise level reduction for each meter of height after it breaks the line-of-sight (with a maximum
theoretical total reduction of 20 dBA). To avoid undesirable end effects, a good rule-of-thumb is that the
barrier should extend 4 times as far in each direction as the distance from the receiver to the barrier.
Openings in noise walls for driveway connections or intersecting streets destroy the effectiveness of barriers.
In some areas, homes are scattered too far apart to permit noise barriers to be built at a reasonable cost.
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Noise barriers can be quite effective in reducing noise for receptors within approximately 61 meters of a
highway. Table 10 summarizes barrier attenuation.
Reduction in
Sound Level
Table 10: Barrier Attenuation
Reduction in
Acoustic Energy
26
Degree of Difficulty
To Obtain Reduction
5 dBA 70% Simple
10 dBA 90% Attainable
15 dBA 97% Very Difficult
20 dBA 99% Nearly Impossible

Figure 2: Noise Barrier Examples
Earth Berm Nois Barrier Wooden Noise Barrier
Concrete Noise Barrier with Woodgrain Texture
Figure 3: Noise Barrier Shadow Zone
Shadow Effect of Noise Barrier
The lower house is protected by the barrier, but the upper one is not.
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2. Public Perception
Overall, public reaction to highway noise barriers appears to be positive. There is, however, a wide diversity
of specific reactions to barriers. Residents adjacent to barriers have stated that conversations in households
are easier, sleeping conditions are better, a more relaxing environment is created, windows are opened more
often, and yards are used more in the summer. Perceived non-noise benefits include increased privacy,
cleaner air, improved view and sense of ruralness, and healthier lawns and shrubs. Negative reactions have
included a restriction of view, a feeling of confinement, a loss of air circulation, a loss of sunlight and
lighting, and poor maintenance of the barrier. Motorists have sometimes complained of a loss of view or
scenic vistas and a feeling of being "walled in" when traveling adjacent to barriers. Most residents near a
barrier seem to feel that barriers effectively reduce traffic noise and that the benefits of barriers outweigh the
disadvantages of the barriers.
3. Design Considerations
A successful design approach for noise barriers should be multidisciplinary and should include
architects/planners, landscape architects, roadway engineers, acoustical engineers, and structural engineers.
Noise reduction goals influence acoustical considerations and in conjunction with non-acoustical
considerations, such as maintenance, safety, aesthetics, physical construction, cost, and community
participation, determine various barrier design options.
A major consideration in the design of a noise barrier is the visual impact on the adjoining land use. An
important concern is the scale relationship between the barrier and activities along the roadway right-of-way.
A tall barrier near a low-scale single family detached residential area could have a severe adverse visual
effect. In addition, a tall barrier placed close to residences could create detrimental shadows. One solution
to the potential problem of scale relationship is to provide staggered horizontal elements to a noise barrier to
reduce the visual impact through introduction of landscaping in the foreground. This can also allow for
additional sunlight and air movement in the residential area. In general, it is desirable to locate a noise
barrier approximately four times its height from residences and to provide landscaping near the barrier to
avoid visual dominance.
The visual character of noise barriers should be carefully considered in relationship to their environmental
setting. The barriers should reflect the character of their surroundings as much as possible. Where strong
architectural elements of adjoining activities occur in close proximity to barrier locations, a relationship of
material, surface texture, and color should be explored in the barrier design. In other areas, particularly
those near roadway structures or other transportation elements, it may be desirable that proposed noise
barriers have a strong visual relationship, either physically or by design concept, to the roadway elements.
Aesthetic views and scenic vistas should be preserved to the extent possible. In general, a successful design
approach for noise barriers is to utilize a consistent color and surface treatment, with landscaping elements
used to soften foreground views of the barrier. It is usually desirable to avoid excessive detail which tends
to increase the visual dominance of the barrier.
The psychological effect on the passing motorist must be taken into consideration too. Barriers should be
designed differently to fit dense, urban settings or more open suburban or rural areas and should also be
designed to avoid monotony for the motorist. At normal roadway speeds, visual perception of noise barriers
will tend to be of the overall form of the barrier and its color and surface texture. Due to the scale of
barriers, a primary objective to achieve visually pleasing barriers is to avoid a tunnel effect through major
variations in barrier form, material type, and surface treatment.
The design approach for noise barriers may vary considerably depending upon roadway design constraints.
For example, the design problem both from an acoustic and visual standpoint is substantially different for a
straight roadway alignment with narrow right-of-way and little change in vertical grades than for a roadway
configuration with a large right-of-way and variations in horizontal and vertical alignments. In the former
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case, the roadway designer is limited in the options of visual design to minor differences in form, surface
treatment, and landscaping. In the latter case, the designer has the opportunity to vary the barrier type,
utilize landscaped berming, and employ more extensive approaches to develop a visually pleasing barrier.
From both a visual and a safety standpoint, noise barriers should not begin or end abruptly. A gradual
transition from the ground plane to the desired barrier height can be achieved in several ways. One concept
is to begin or terminate the barrier in an earth berm or mound. Other concepts include bending back and
sloping the barrier, curving the barrier in a transition form, stepping the barrier down in height, and
terminating the barrier in a vegetative planter. The concept of terminating the barrier in a vegetative planter
should only be utilized in areas where climatic conditions are conducive to continued vegetative growth and
in areas where the planter edges will be protected from potential conflict with roadway traffic.
Graffiti on noise barriers can be a potential problem. A possible solution to this problem is the use of
materials which can be readily washed or repainted. Landscaping and plantings near barriers can be used to
discourage graffiti as well as to add visual quality.
Highway traffic noise levels are not substantially increased by construction of a noise barrier on the opposite
side of a highway from a receiver. If both the direct noise levels and the reflected noise levels are not abated
by natural or artificial terrain features, the noise increase is theoretically limited to 3 dBA, due to a doubling
of energy from the noise source. In practice, however, not all of the acoustical energy is reflected back to
the receiver. Some of the energy is diffracted over the barrier, some is reflected to points other than the
receiver, some is scattered by ground coverings (e.g., grass and shrubs), and some is blocked by the vehicles
on the highway. Additionally, some of the reflected energy to the receiver is lost due to the longer path that
it must travel. Attempts to conclusively measure this reflective increase have never shown an increase of
greater than 1-2 dBA, an increase that is not perceptible to the average human ear.
Multiple reflections of noise between two parallel plane surfaces, such as noise barriers or retaining walls on
both sides of a highway, can theoretically reduce the effectiveness of individual barriers and contribute to
overall noise levels. However, studies of the issue have not indicated problems associated with this type of
reflective noise. Any measured increases in noise levels have been less than can be perceived by normal
human hearing. Studies have suggested that to avoid a reduction in the performance of parallel reflective
noise barriers, the width-to-height ratio of the roadway section to the barriers should be at least 10:1. The
width is the distance between the barriers, and the height is the average height of the barriers above the
roadway. This means that two parallel barriers 3 meters tall should be at least 30 meters apart.
To provide standard structural design criteria for the preparation of noise barrier plans and specifications,
the American Association of State Highway and Transportation Officials (AASHTO) Subcommittee on
Bridges and Structures developed "Guide Specifications for Structural Design of Sound Barriers," which
was published in 1989 and amended in 1992.
These specifications allow for more consistency and less conservatism in barrier design. SHAs are
encouraged to apply realistic noise barrier structural design practices and to avoid overly conservative design
procedures, especially those related to wind load criteria.
AASHTO has also published a "Guide on Evaluation and Abatement of Traffic Noise: 1993 (code GTN-
3)." This report contains a good discussion of the problem of highway traffic noise and ways to address the
problem in the United States. It presents a discussion very similar to that found in FHWA literature. Copies
of the report are available from AASHTO, 444 North Capitol Street, N.W., Suite 429, Washington, DC,
20001, telephone (202) 624-5800.
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4. Flexibility in Decisionmaking
The Federal-aid highway program has always been based on a strong State-Federal partnership. At the core
of that partnership is a philosophy of trust and flexibility, and a belief that the States are in the best position
to make investment decisions that are based on the needs and priorities of their citizens. The FHWA noise
regulations give each SHA flexibility in determining the reasonableness and feasibility of noise abatement
and, thus, in balancing the benefits of noise abatement against the overall adverse social, economic, and
environmental effects and costs of the noise abatement measures. The SHA must base its determination on
the interest of the overall public good, keeping in mind all the elements of the highway program (need,
funding, environmental impacts, public involvement, etc.). Congress affirmed and extended the philosophy
of partnership, trust, and flexibility in the enactment of ISTEA.
The flexibility in noise abatement decisionmaking is reflected by data indicating that some States have built
many noise barriers and some have built none. From 1970 to 1992, forty SHAs and the Commonwealth of
Puerto Rico have constructed over 1,486 linear kilometers of barriers at a cost of over $816 million ($875
million in 1992 dollars). Ten States and the District of Columbia have not constructed noise barriers to date.
Vegetation
Vegetation, if it is high enough, wide enough, and dense enough that it cannot be seen through, can decrease
highway traffic noise. A 61-meter width of dense vegetation can reduce noise by 10 decibels, which cuts in half the
loudness of traffic noise. It is usually impossible, however, to plant enough vegetation along a road to achieve such
reductions.
Roadside vegetation can be planted to create a psychological relief, if not an actual lessening of traffic noise levels.
Since a substantial noise reduction cannot be obtained for an extended period of time, the FHWA does not consider
the planting of vegetation to be a noise abatement measure. The planting of trees and shrubs provides only
psychological benefits and may be provided for visual, privacy, or aesthetic treatment, not noise abatement.
Figure 4: Vegetation
Vegetation and Noise Reduction
Traffic Management
Controlling traffic can sometimes reduce noise problems. For example, trucks can be prohibited from certain streets
and roads, or they can be permitted to use certain streets and roads only during daylight hours. Traffic lights can be
changed to smooth out the flow of traffic and to eliminate the need for frequent stops and starts. Speed limits can
be reduced; however, about a 33 kilometer-per-hour reduction in speed is necessary for a noticeable decrease in
noise levels.
30

Building Insulation
Insulating buildings can greatly reduce highway traffic noise, especially when windows are sealed and cracks and
other openings are filled. Sometimes noise-absorbing material can be placed in the walls of new buildings during
construction. However, insulation can be costly because air conditioning is usually necessary once the windows are
sealed. In many parts of the country, highway agencies do not have the authority to insulate buildings; thus, in those
States, insulation cannot be included as part of a highway project. Noise insulation is normally limited to public use
structures such as schools and hospitals.
Buffer Zones
Buffer zones are undeveloped, open spaces which border a highway. Buffer zones are created when a highway
agency purchases land or development rights, in addition to the normal right-of-way, so that future dwellings cannot
be constructed close to the highway. This prevents the possibility of constructing dwellings that would otherwise
have an excessive noise level from nearby highway traffic. An additional benefit of buffer zones is that they often
improve the roadside appearance. However, because of the tremendous amount of land that must be purchased and
because in many cases dwellings already border existing roads, creating buffer zones is often not possible.
Figure 5: Buffer Zones
Open space can be left as a buffer zone
between residences and a highway.
Pavement
Pavement is sometimes mentioned as a factor in traffic noise. While it is true that noise levels do vary with changes
in pavements and tires, it is not clear that these variations are substantial when compared to the noise from exhausts
and engines, especially when there are a large number of trucks on the highway. Additional research is needed to
determine to what extent different types of pavements and tires contribute to traffic noise.
It is very difficult to forecast pavement surface condition into the future. Unless definite knowledge is available on
the pavement type and condition and its noise generating characteristics, no adjustments should be made for
pavement type in the prediction of highway traffic noise levels. Studies have shown open-graded asphalt pavement
can initially produce a benefit of 2-4 dBA reduction in noise levels. However, within a short time period
(approximately 6-12 months), any noise reduction benefit is lost when the voids fill up and the aggregate becomes
polished. The use of specific pavement types or surface textures must not be considered as a noise abatement
measure.
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ADDITIONAL INFORMATION
Appropriate Level of Highway Traffic Noise Analysis for
CE, EA/FONSI, and EIS
Purpose
Highway traffic noise analysts often ask "how much analysis is sufficient?" for a project which will require the use
of Federal-aid highway funds. The following discussion is meant to assist in answering that question.
Background
Two different laws control the evaluation of highway traffic noise impacts: NEPA and the Federal-aid Highway
Act of l970, which added Section l09(i) to Title 23 of the U.S. Code of Federal Regulations. They require
environmental evaluation of Federal or Federal-aid highway projects, and reasonable and feasible mitigation of
identified impacts. The FHWA regulations for mitigation of highway traffic noise in the planning and design of
federally-aided highways are contained in 23 CFR 772, "Procedures for Abatement of Highway Traffic Noise and
Construction Noise."
The FHWA noise regulations require, during the planning and design of all Type I highway projects, the following:
(1) identification of traffic noise impacts; (2) examination of potential mitigation measures; (3) the incorporation of
reasonable and feasible noise mitigation measures into the highway project; and (4) coordination with local officials
to provide helpful information on compatible land use planning and control. Type I highway projects are those that
involve "... construction of a highway on new location or the physical alteration of an existing highway which
significantly changes either the horizontal or vertical alignment or increases the number of through-traffic lanes."
The regulations contain noise abatement criteria, which represent the upper limit of acceptable highway traffic noise
for different types of land uses and human activities. The regulations do not require that the noise abatement
criteria be met in every instance. Rather, they require that every reasonable and feasible effort be made to provide
noise mitigation when the noise abatement criteria are approached or exceeded, or when the predicted traffic noise
levels substantially exceed the existing noise levels (these two conditions are defined as traffic noise impacts).
Compliance with the noise regulations is a prerequisite for the granting of Federal-aid highway funds for
construction or reconstruction of a highway.
General guidance related to the format, content, and processing of NEPA and Section 4(f) studies and documents
describes the three classes of actions which prescribe the level of documentation required in the NEPA process.
These classes of actions are the following:
I. Categorical Exclusion (CE)
A Categorical Exclusion is for an action that does not individually or cumulatively have a significant
environmental impact.
II. Environmental Assessment/Finding of No Significant Impact (EA/FONSI)
An Environmental Assessment is for an action in which the significance of the environmental impact
is not clearly established. A Finding of No Significant Impact is a written document incorporating the
EA and any other appropriate environmental documents and in which the Federal Agency agrees that
there is no significant impact.
32

III. Environmental Impact Statement (EIS)
Noise Analysis
An EIS is for an action that will significantly affect the environment.
The level of detail and effort for the traffic noise analysis required on each alternative of a proposed project should
be commensurate with the type of project and the impacts and/or issues with which it is associated.
The general content of a traffic noise analysis is discussed in Paragraph 772.9b of 23 CFR 772 (see page 11).
Categorical Exclusion
In considering traffic noise analysis for a CE, it is necessary to make a distinction between two cases. These are (a)
CEs which are not Type I projects as defined in 23 CFR 772 (the vast majority of CEs will not be Type I projects)
and (b) CEs which are Type I projects.
Projects that are not Type I: No analysis of any kind is required, except for the extremely rare instance in which the
project itself is expected to create a noise impact. Such projects must be dealt with on a case by case basis in
accordance with NEPA.
Projects that are Type I: Noise analysis is required by 23 CFR 772 although none may be necessary to demonstrate
NEPA compliance. The analysis should include:
(1) identification of existing activities, developed lands, and undeveloped lands for which development
is planned, designed and programmed, which may be affected by noise from the highway;
(2) determination of existing levels by measurement or by use of a simple application of the FHWA
model;
(3) prediction of traffic noise levels using a simple (e.g., nomograph, hand-held calculator,
microcomputer, etc.) application of the FHWA Highway Traffic Noise Prediction Model (FHWA
model) or, if a more accurate prediction is required, a detailed application of the FHWA model;
(4) determination of traffic noise impacts using the two impact criteria in 23 CFR 772. If no impacts
exist, a brief explanation of the basis for no traffic noise impacts should be given (e.g., the project is
90 meters from the nearest receptor).
End of Analysis.
(5) if traffic noise impacts exist, determine if there are any reasonable and feasible measures which will
abate the impacts.
As an example of how steps (1), (2), (3), (4) and (5) might be performed, suppose a highway is to be relocated about
150 meters from its existing alignment. There are currently 400 autos/hour, 20 medium trucks/hour, and 32 heavy
trucks/ hour in the noisiest hour and all vehicle speeds are about 88 km/h. The general terrain is flat and grassy (i.e.,
acoustically soft). Future traffic is expected to double. There are nine residences near the relocation alignment, five
which are 60 meters from the relocation alignment, and four which are 30 meters from the relocation alignment.
Existing noise level near these residences is 60 dBA L eq during PM peak hour.
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The SHA uses the following definitions:
"...approach..." means within 1 or 2 dBA or the noise levels shown in TABLE 1 of 23 CFR 772, depending
on the specific circumstances (e.g., the amount of human use, the location relative to commercial activity).
"...substantially exceeds existing noise levels..." means an increase of 15 dBA L eq or more.
"...feasible..." means it is structurally and acoustically possible to provide 6 dBA of abatement.
"...reasonable..." means that the SHA believes mitigation is prudent upon consideration of the following
conditions:
1. The neighborhood desires for abatement (this can be ascertained based on written correspondence of
the individuals in the neighborhood or on such correspondence with a local responsible official).
2. The extent to which the agency with responsibility for approval of development has demonstrated the
control (or has agreed to control) of land use to encourage noise compatible development.
3. The relationship between how long the people who would benefit from the abatement have lived in
their residences and the date of the final environmental report on the project, if it is on new
alignment, or the date of initial construction of the existing highway, if the project is a lane addition.
4. The cost of the abatement (normally such costs should not exceed $20,000 per residence, including
any safety and drainage features included specifically due to the abatement measures).
5. The amount of noise reduction provided (normally at least 6 dBA).
6. The extent to which the "build" noise levels exceed the "no build" noise levels.
7. The extent to which the "build" noise levels exceed the existing noise levels.
8. The extent to which the "build" noise levels approach or exceed the NAC.
The above is a fictitious example and must not be construed as containing FHWA recommended definitions. A
more thorough discussion of reasonableness and feasibility may be found in the discussion on "Reasonableness and
Feasibility (see pp. 50-66)." The particular use of the factors noted above, while consistent with this discussion, is
only one example of an application for decisionmaking.
Application of the nomographs to estimate future noise levels at a distance of 15m gives levels of 66, 65 and 71
dBA for autos, medium trucks, and heavy trucks respectively (using future traffic volumes which are double
existing volumes) or a combined level of 73 dBA using decibel addition rules. Applying the adjustment for
doubling distance from a noise source at a soft site (4.5 decibel decrease for every doubling of distance), the five
sites 60 meters from the road would each receive about 64 dBA (PM peak) in the future. Since the existing noise
levels are about 60 dBA, this is not a substantial increase. The 64 dBA also does not approach the Noise Abatement
Criterion of 67 dBA for a residence. Therefore, given the SHA's definitions of "...substantially exceeds existing
noise levels..." and "...approach or exceed...," there is no traffic noise impact at these five sites.
At the four residences closest to the highway, we apply the adjustment for doubling distance from a noise source at
a soft site. This results in the conclusion that this site would receive about 68 dBA from the road in the future.
Therefore, there is a noise impact at the site and abatement must be considered as follows:
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1. Letters have been received from all four households and the mayor expressing strong concern about
noise impacts and a desire for a noise barrier.
2. The local zoning & approval board has agreed in writing to submit future development plans to the
SHA for review and comment.
3. The residences preceded the FEIS by many years.
4. & 5. Assume a barrier is the only feasible abatement measure. Assume further that a barrier sufficient
to provide 6 dBA of abatement for these residences would be about 270 meters long and 3 meters
high. If it would cost $108 per square meter for construction (including safety and drainage work),
the total cost would be about $87,000, or about $22,000 per residence.
6. & 7. The increase from both existing conditions and those of the "no build" conditions to the "build"
condition is 8 dBA.
8. The noise levels in the "build" condition is 1 dBA higher than the NAC. In addition to these
considerations, the mayor has offered to use $3,000 in city funds to landscape the barrier if the SHA
agrees to build it.
Given all of the above, the SHA considers abatement to be reasonable at this site even though the cost of the barrier
slightly exceeds the SHA's cost/receptor criterion.
End of Analysis
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Environmental Assessment/Finding of No Significant Impact
In considering traffic noise analysis for an EA/FONSI, it is desirable to distinguish between three cases. These are
(a) EA/FONSIs for projects that are not Type I, (b) EA/FONSIs for projects on low volume roads, and
(c) EA/FONSIs for projects on high volume roads. The SHA should define low volume roads. Both low and high
volume roads may occur in rural, suburban or urban areas.
Projects that are not Type I: The analysis requires only that an explanation be provided as to whether the project
itself will create a noise impact. The few instances where the project will have an impact on noise levels will have
to be examined on a case-by-case basis in accordance with NEPA.
Projects that are Type I and are on Low Volume Roads: The analysis requires the same steps as in the case of CEs
for Type I projects, except that each alternative under consideration (including the "no build" alternative) requires a
separate analysis. This, thus, includes:
(1) identification of existing activities, developed lands, and undeveloped lands for which development
is planned, designed and programmed, which may be affected by noise from the highway;
(2) determination of existing levels by measurement or by use of a simple application of the FHWA
model;
(3) prediction of traffic noise levels using a simple application of the FHWA Model;
(4) determination of traffic noise impacts using the two impact criteria in 23 CFR 772. If no impacts
exist, a brief explanation of the basis for no traffic noise impacts should be documented;
End of Analysis.
(5) if impacts exist, determine if there are any reasonable and feasible measures which will abate the
impacts.
Projects that are Type I and are on High Volume Roads: The analysis should include for each alternative under
consideration (including the "no build" alternative):
(1) identification of existing activities, developed lands, and undeveloped lands for which development
is planned, designed and programmed, which may be affected by noise from the highway;
(2) determination of existing levels. Measurement is required to verify the presence/absence of
non-highway noise sources. Noise measurements should, however, only be necessary at a few areas
representing sensitive locations;
(3) prediction of traffic noise levels using either a simple or, if a more accurate prediction is required, a
detailed application of the FHWA model;
(4) determination of traffic noise impacts using the two impact criteria in 23 CFR 772. This requires
quantification of noise levels. If no impacts exist, a brief explanation of the basis for no traffic noise
impacts should be documented;
End of Analysis.
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(5) if impacts exist, determine if there are any reasonable and feasible measures which will abate the
impacts. Abatement benefits and costs should be quantified to the extent possible. The final EA and
accompanying FONSI should indicate which abatement measures are "likely" to be incorporated in
the project and identify impacts for which no prudent solution is reasonably available.
Environmental Impact Statements
Projects that are not Type I:
Occasionally, an EIS is done for a project that is not Type I (e.g., a turning lane which brings traffic close to some
critical environmental resource). However, these instances are unusual and must be dealt with on a case-by-case in
accordance with NEPA.
Projects that are Type I:
For all Type I projects, noise analysis is required by both NEPA and 23 CFR 772. The analysis should include the
following for each alternative under detailed study (including the "no build" alternative):
(1) identification of existing activities, developed lands, and undeveloped lands for which development
is planned, designed and programmed, which may be affected by noise from the highway. Each
noise sensitive area should be briefly described (residences, businesses, schools, parks, etc.),
including information on the number and types of activities which may be affected;
(2) determination of existing levels. Measurement is required to verify the presence/absence of
non-highway noise sources. Noise measurements should, however, only be necessary at a few areas
representing sensitive locations. In some cases (e.g. highly congested facilities where trucks avoid
peak automobile travel periods), both a peak traffic period and a non-peak period noise measurement
may be required to verify the worst hour noise levels;
(3) prediction of traffic noise levels using either a simple or, if a more accurate prediction is required, a
detailed application of the FHWA model;
(4) determination of traffic noise impacts using the two impact criteria in 23 CFR 772. This requires
quantifying the extent of the impact (in decibels) at each sensitive area. Use of a table to compare
the predicted levels with the project, the predicted levels without the project, the existing levels, and
the noise abatement criteria in 23 CFR 772 is recommended for clarity. If no impacts exist, a brief
explanation of the basis for no traffic noise impacts should be given.
End of Analysis.
(5) if impacts exist, determine if there are any reasonable and feasible measures which will abate the
impacts. The final EIS should indicate the estimated costs and decibel reductions and should provide
a description of the non-barrier abatement measures considered and the reasons why such measures
are or are not considered reasonable and feasible. The FEIS should indicate which abatement
measures are "likely" to be incorporated in the project and should identify impacts for which no
prudent solution is reasonably available.
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Design of the Project:
Effort is also needed during the design of the highway project. One of the best engineering practices is the use of
multidisciplinary design teams. The incorporation of a highway traffic noise specialist, a landscape architect, a
maintenance engineer, a highway safety engineer, a hydraulic engineer, and a structural engineer should help
produce noise mitigation that is functional, practical and aesthetically pleasing.
PS&E Review:
When a highway project is being reviewed by the FHWA Division Office, the environmental document should be
used to check for noise mitigation required on the project. Either the CE determination, the FONSI, or the EIS
Record of Decision (ROD) should be reviewed to determine the suggested location of noise barriers that have been
determined to be reasonable and feasible. Project files should clearly document the reasons why any noise
mitigation listed as likely to be implemented in the environmental document has been found not to be reasonable
and feasible during the design process.
Noise Analysis for Highway Lane Addition Projects
Introduction
The procedures and requirements contained in 23 CFR 772 constitute the
noise standards mandated by 23 U.S.C. 109(i). All applicable Federal-aid highway projects must conform to these
standards. 23 CFR 772 specifically applies to any project defined as a Type I project--a proposed Federal or
Federal-aid highway project for the construction of a highway on new location or the physical alteration of an
existing highway which significantly changes either the horizontal or vertical alignment or increases the number of
through-traffic lanes. This discussion is meant to address the FHWA requirements for highway traffic noise
analyses related to Federal-aid highway projects which increase the number of through-traffic lanes (hereafter
referred to as lane addition projects).
Environmental Processing
If a project is not a Type I project as defined by 23 CFR 772, a noise analysis is not required except in the extremely
rare incidence in which the project itself is expected to create a noise impact. Such projects must be dealt with on a
case by case basis in accordance with NEPA. The addition of a through-traffic lane is specifically defined as a
Type I project and must be analyzed as discussed below. A noise analysis must be done for Type I projects. This
analysis may range from a simple screening process utilizing a nomograph to the use of computer software
depending on the complexity of the project.
If noise impacts as defined by 23 CFR 772 are not identified, no further analysis is necessary regardless of whether
the project is advanced as a CE, EA/FONSI, or an EIS. However, if noise impacts are identified, additional analysis
must be done to determine the significance of the impacts. This determination of significance should be based on
consideration of the context and intensity of the impacts as discussed in the Council on Environmental Quality
(CEQ) Regulation (40 CFR, Part 1508.27). In analyzing highway traffic noise impacts, context should consider the
extent of the noise impact. Is the impact on an isolated residence? If noise impacts occur for 50 people, is it in a
village with a population of 100, in a town of 5,000, or in a city of 50,000? Intensity should consider the noise
levels associated with the impact. Are the predicted absolute noise levels 60 dBA, 70 dBA, or 80 dBA? Is the
predicted increase over existing noise levels only 1 or 2 dBA, or is it 10 dBA, 20 dBA, or 30 dBA?
Highway traffic noise is only one area to be considered in the environmental processing of a proposed highway
project. The significance of identified traffic noise impacts should be used to help decide whether to process the
project with a CE, a Finding of No Significant Impact (FONSI), or an EIS. If project impacts, including noise
impacts, are deemed not to be significant, the project may be processed with a CE or a FONSI. However, if noise
38

impacts are determined to be significant, the project must be processed with an EIS. 23 CFR 772 states that a traffic
noise impact occurs when predicted traffic noise levels substantially exceed the existing noise levels. In
documenting the increase in existing noise levels in the environmental processing of a project, care should be taken
to avoid the use of the phrase "significant increase" due to the CEQ definition of "significance." The phrase
"substantial increase" should always be used to address this type of potential traffic noise impact.
Noise Impacts
Analysis for lane addition projects must follow the procedures outlined in 23 CFR 772. These procedures require:
(1) identification of existing activities, (2) determination of existing noise levels, (3) prediction of future traffic
noise levels, and (4) determination of traffic noise impacts. Traffic noise impacts occur when the future traffic
noise levels approach or exceed the NAC contained in 23 CFR 772 or when the future traffic noise levels
substantially exceed the existing noise levels. For lane addition projects, the definition of traffic noise impact in 23
CFR 772 applies to the total noise level of the facility being expanded rather than to just the incremental noise level
increase caused by the added lanes.
Many lane addition projects will result in a small, imperceptible increase of future noise levels over existing noise
levels (1-3 dBA). This is almost always the case if the lanes are added in the median of an existing multi-lane
divided highway or on the outside of an existing highway which is at grade or on fill. A slightly larger, but still
small, increase in noise may occur if lanes are added on the outside of an existing highway in cut where additional
cutting of sideslopes must be done thereby reducing some of the noise shielding provided by the cut. An exception
to this may occur when two-lane highways are expanded to four or more lanes since this modification will
substantially increase the traffic capacity of the facility and potentially move the noise source closer to a receiver.
Projects of this last type, therefore, may substantially increase the future traffic noise levels over the existing noise
levels.
Most traffic noise impacts occur on a lane addition project when future total noise levels near the expanded facility
approach or exceed the NAC. In most urban locations where lanes need to be added, existing noise levels along the
facility already approach or exceed the NAC. Thus, receptors near the facility are experiencing a traffic noise
impact even before the new lanes are added and the traffic capacity is increased. Obviously, in this situation, a
traffic noise impact will almost certainly occur in the analysis of the lane addition project even though the added
lanes do not increase (or substantially increase) future traffic noise levels over the existing noise levels or the future
traffic noise levels for the "no-build" alternative. Nevertheless, as defined in 23 CFR 772, a traffic noise impact
occurs in this situation, and it must be identified.
From the above discussion, it can be seen that the incremental noise increase caused by the added lanes is usually
not the governing factor for identifying a traffic noise impact on a lane addition project. Rather, it is the total noise
level for the final facility that usually determines whether or not a traffic noise impact will be identified. This is not
to say that the incremental noise increase from the added lanes is unimportant. It in fact is one of the factors that
should be considered in determining whether or not a proposed abatement measure is reasonable (see the discussion
following in the noise abatement section). For this reason, the traffic noise analysis should include a comparison
between the future traffic noise levels for the expanded facility and the "no-build" alternative for the design year.
Noise Abatement
23 CFR 772 also requires that noise abatement measures be considered if a traffic noise impact is identified for a
Type I project. Abatement consideration should weigh the abatement benefits, costs, and overall social, economic,
and environmental effects. Abatement measures which are found to be reasonable and feasible must be
incorporated in the project. If a traffic noise impact is identified for a lane addition project as discussed above,
abatement must be considered as a part of the project being proposed. Such consideration cannot be delayed to a
future date or be made part of a Type II program--an entirely voluntary State program for addressing traffic noise
impacts along existing highways.
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When considering noise abatement measures, every reasonable effort should be made to obtain a substantial noise
reduction (defined by typical State practice to be a reduction of 5 dBA or more). All the abatement measures listed
in 23 CFR 772 should be considered. However, for a lane addition project, measures such as traffic management,
alteration of alignment, or purchase of land for use as a buffer zone usually either do not provide a substantial noise
reduction or are found to be not reasonable and feasible due to cost, right-of-way requirements, or project purpose.
Thus, noise barriers are the abatement measure most often associated with the concept of noise abatement on lane
addition projects. The consideration of noise abatement must result in a determination of reasonableness and
feasibility.
The final determination of reasonableness of noise abatement should be made only after a careful and thorough
consideration of a wide range of criteria. The importance that a State places on any one criterion can vary
depending on the specific circumstances for a particular project. For example, on a lane addition project where (1)
there is little if any difference between the future traffic noise levels for the expanded facility and the future traffic
noise levels for the "no-build" alternative, and (2) a majority of the development along the highway occurred after
initial construction of the highway, the State may decide that these criteria are very important in determining the
reasonableness of noise abatement. While the remaining criteria for determining reasonableness (e.g, noise
reduction, cost, community support, etc.) under this scenario may individually be less important, they should still be
evaluated since, on balance, they may offset the negative aspects of the first two criteria. On another project, for
example, where a majority of the adjacent development occurred prior to initial construction of the highway, other
criteria, such as noise reduction, cost, etc., may take on added importance.
Summary
A proposed Federal-aid highway project which increases the number of through-traffic lanes is defined by 23 CFR
772 as a Type I project. A noise analysis must be done for this type of project to identify any potential noise
impacts as defined by 23 CFR 772. The level of analysis required can vary based upon the anticipated noise
impacts associated with the project. If noise impacts are identified, the significance of these impacts must be
determined. The project must be processed with a CE, a FONSI, or an EIS, as appropriate, based on the
significance of noise impacts as well as other environmental impacts. Furthermore, if noise impacts are identified,
noise abatement measures must be considered and if they are found to be reasonable and feasible, they must be
incorporated into the project. The determination of reasonableness and feasibility should be based on a careful and
thorough consideration of many factors and not on any one criterion.
Traffic Noise Analysis for Proposed Projects Involving Interchanges, Ramps, or
"Lane Widenings"
These types of projects must be classified as Type I projects as defined by 23 CFR 772. The addition of
interchanges/ramps/auxiliary lanes/ truck climbing lanes, etc. to existing highways can certainly create significant
changes in alignment and/or add through-traffic lanes, and SHAs have a responsibility to ensure that all reasonable
and feasible mitigation measures are incorporated into the projects to minimize noise impacts and enhance the
surrounding environment to the extent practicable.
Similarly, the addition of high-occupancy vehicle (HOV) lanes to highways are also Type I projects, whether added
in the median or on the outside of the existing highway, since they add through-traffic lanes. Traffic noise analysis
is required for both sides of the highway, even when HOV lanes are only being added on one side of the highway.
Frequently, HOV projects cause little or no change in the existing or future noise environment. However, traffic
noise impacts occur since existing noise levels already approach or exceed FHWA noise abatement criteria. In
these instances, abatement must be considered and implemented if found to be reasonable and feasible.
40

Noise analyses are only required for Federal-aid highway projects that are Type I projects or that create a noise
impact as a result of the project. No noise analysis is required for widenings of less than one through-traffic lane
width, unless there is a significant change in either the horizontal or vertical alignment or the project itself is
expected to create a noise impact. Noise analyses are required in all instances where a through-traffic lane is added
to a highway. Two different laws control the evaluation of highway traffic noise impacts: NEPA and the
Federal-aid Highway Act of l970.
The FHWA noise regulations require noise analyses for all Type I projects, defined as projects that involve
construction of a highway on new location or the physical alteration of an existing highway which significantly
changes either the horizontal or vertical alignment or increases the number of through-traffic lanes. Such analyses
must be done to meet FHWA and Title 23 requirements.
If a project does not meet the definition of a Type I project, no noise analysis is required, except for the extremely
rare incidence in which the project itself is expected to create a noise impact. A traffic noise impact occurs when
the predicted traffic noise levels approach or exceed FHWA's NAC or when the predicted traffic noise levels
substantially exceed the existing noise levels. If the project itself is expected to create a noise impact (i.e., the
predicted no-build noise levels do not approach or exceed the NAC and the predicted build noise levels either
approach or exceed the NAC or substantially exceed the no-build noise levels), a noise analysis must be done to
meet the requirements of NEPA.
NOTE: A commonly held viewpoint is that noise analyses should not be necessary for projects that will not
change the noise environment - that is, not change the noise levels from those that exist today or not
change the noise levels from those that will exist in the future if no project is implemented (e.g., 70
dBA existing and 70 dBA in the future, with or without the project). However, the FHWA noise
regulations were developed to specifically address the improvement of situations where existing
noise levels are already high (i.e., a traffic noise impact already exists). Thus, noise analyses are
required for all Type I projects, even when there is no change in the surrounding noise environment.
A parallel can be drawn with highway projects where substandard safety features are upgraded or
improved even though the overall goal of the project is not specifically safety-related.
Reasonableness and Feasibility of Noise Abatement
Introduction:
It is FHWA's policy to ensure that all reasonable and feasible mitigation measures are incorporated into projects to
minimize noise impacts and enhance the surrounding noise environment to the extent practicable. This commitment
to minimize noise impacts and enhance the noise environment must be fulfilled through prudent application of
FHWA's noise regulations - 23 CFR 772.
23 CFR 772 requires that ..."before adoption of a final environmental impact statement or finding of no significant
impact, the highway agency shall identify noise abatement measures which are reasonable and feasible and which
are likely to be incorporated in the project".... This is frequently the most difficult part of the traffic noise analysis
for a proposed highway project. SHA decisionmakers often ask, "What does the phrase reasonable and feasible
mean? How should we determine reasonableness and feasibility?" The following discussion is intended to assist in
answering these questions.
Background:
Feasibility deals primarily with engineering considerations (e.g., can a barrier be built given the topography of the
location; can a substantial noise reduction be achieved given certain access, drainage, safety, or maintenance
requirements; are other noise sources present in the area, etc.). Reasonableness is a more subjective criterion than
feasibility. It implies that common sense and good judgement were applied in arriving at a decision.
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Reasonableness should be based on a number of factors -- not just one criterion.
A determination of reasonableness for abatement measures should include consideration of items such as the
following:
(1) Noise Abatement Benefits
(a) Amount of noise reduction provided
(b) Number of people protected
(2) Cost of Abatement
(a) Total cost
(b) Cost variation with degree of benefits provided
(3) Views of the Impacted Residents
(a) Community wishes
(b) Aesthetic impacts (e.g., barrier height, material type, etc.)
(c) Desire for a surrounding view
(4) Absolute Noise Levels
(a) Existing noise levels
(b) Future traffic noise levels
(c) Context and intensity of noise levels (see 40 CFR, Part 1508.27)
(5) Change in Noise Levels
(a) Difference between the future traffic noise levels and the existing noise levels
(b) Difference between the future traffic noise levels for the build alternative and the no-build alternative
(6) Development Along the Highway
(a) Amount of development that occurred before and after the initial construction of the highway
(b) Type of development (e.g., residential, commercial, mixed, etc.)
(c) Extent to which zoning or land use is changing
(d) Effectiveness of land use controls implemented by local officials to prevent incompatible
development
(7) Environmental Impacts of Abatement Construction
(a) Effects on the natural environment
(b) Noise reduction during highway construction
NOTE: Safety, maintenance, and drainage concerns for noise abatement measures should be
addressed during preliminary and final project design. These issues should be part of the
feasibility determination and can usually be resolved through use of good design practices.
The above listing is not intended to be all encompassing. Rather, it is intended to indicate some of the factors that
should be considered in determining the reasonableness of proposed noise abatement measures. Each SHA should
develop and utilize its own criteria for determining reasonableness. Reasonableness should be determined through a
42

ational, open process which utilizes a method flexible enough to meet individual situations yet firm enough to be
uniformly and consistently applied. The methods used to determine reasonableness should be appropriately
influenced by public perception of the problem of highway traffic noise. States where the public is more reactive to
the problem of traffic noise should have a more identifiable and comprehensive approach to determining
reasonableness. The main point to remember is that the final determination of reasonableness of noise abatement
should be made only after a careful and thorough consideration of a wide range of criteria. Lastly, consideration of
the criteria should not be rigid -- that is, the specific circumstances for a particular project should be regarded in
applying the criteria.
The previous discussion has been general in its approach. The following discussion is meant to be specific and
indicate how the criteria or factors should be considered.
The most commonly used noise abatement measure is the construction of a noise barrier. Therefore, the remainder
of this discussion will address the consideration of highway traffic noise barriers and discuss how specific factors
should be applied in noise barrier decisionmaking. This discussion should be used as a guide by States in
establishing criteria and procedures for noise abatement decisionmaking.
Abatement Decisionmaking:
A highway traffic noise abatement decisionmaker should answer the following questions:
Why are criteria and procedures needed?
Good program management supports the need for highway traffic noise abatement decisionmaking criteria and
procedures. The decision on whether or not to build a noise barrier must not be arbitrary or capricious, and its
reasoning should be available and supportable, particularly if the answer is "no" and the affected residents want a
barrier to be constructed. The decision must be based upon consistent, uniform application of established criteria
and procedures. Written policies should be established.
What criteria should be used?
The criteria used for determining reasonableness and feasibility should indicate a broad consideration of conditions
that apply in a given location. The criteria should allow identification of the overall benefits, as well as the overall
adverse social, economic, and environmental effects, of the noise abatement. Remembering the previous listing of
possible criteria, the following criteria might be chosen:
1. Amount of noise reduction provided
2. Number of people protected
3. Cost of abatement
4. Views of the impacted residents
5. Future absolute traffic noise levels
6. Difference between the future traffic noise levels and the existing noise levels
7. Difference between the future traffic noise levels for the build alternative and the no-build alternative
8. Amount of development that occurred before and after the initial construction of the highway
43

9. Extent to which zoning or land use is changing
10. Effectiveness of land use controls implemented by local officials to prevent incompatible
development
How should these criteria be used in making a decision?
Quantification of each of the criteria allow their use in making a more objective decision. This should allow the
decision to be more supportable and more easily explained. The criteria should be responsive to the need to provide
noise abatement. Conversely, the effects on overall cost to the highway program should be considered when
quantifying the criteria. Consequently, the criteria need to be prudently developed. This paper later presents an
example of quantification of abatement criteria.
Should criteria and procedures allow "room for judgement?"
Flexibility is an important element of good noise abatement decisionmaking criteria and procedures. The criteria
and procedures should be objective enough to be quantifiable, but they should also be flexible enough to allow the
decisionmaker to make meaningful judgements on a case-by-case basis for special circumstances.
The criteria and procedures should permit consideration of "gray areas" and should not always be rigidly applied.
There may be instances where abatement should be found to be reasonable and feasible even though it is found to
fall outside some of the established criteria and procedures, e.g., it costs more than the reasonable cost index
(including it protects a fewer number of people), absolute traffic noise levels are lower but increases in existing
noise levels are great, changes in noise levels are small but the absolute levels are high, or increases in noise levels
since initial development occurred are great.
This discussion will present an example of how a State might quantify the criteria and
procedures used in abatement decisionmaking. The definitions and numerical values
shown are samples of choices a State might make and should not be construed as FHWA
recommendations. Each State should determine its own definitions and values. FHWA
comments are provided throughout the example.
EXAMPLE: (The following text, without FHWA comments, is an example of how a State might write
criteria and procedures)
Feasibility (example of State policy):
Feasibility deals with engineering considerations - that is, can a substantial noise reduction be achieved given the
conditions of a specific location. Is the ability to achieve noise reduction limited by: (1) topography; (2) access
requirements for driveways, ramps, etc.; (3) the presence of local cross streets; or (4) other noise sources in the area,
such as aircraft overflights? All these considerations affect the ability of noise barriers to achieve an actual noise
reduction.
It is State policy that construction of a noise barrier is NOT FEASIBLE if a 5 dBA noise reduction cannot be
achieved.
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FHWA COMMENT 1: A noise barrier which just breaks the line-of-sight from the source to the
receiver will achieve a 5 dBA noise reduction. A 5 dBA reduction in noise is
readily perceptible. Noise barriers which do not achieve at least a 5 dBA
reduction in noise are not prudent expenditures of public funds and, therefore,
should not be built. When a noise barrier is considered, every reasonable effort
should be made to obtain a substantial noise reduction - normally in the range of
5-10 dBA.
Reasonableness (example of State policy):
Reasonableness is a more subjective criterion than feasibility. It implies that common sense and good judgement
have been applied in arriving at a decision. Reasonableness should be based on a number of factors, with regard for
all of the individual, specific circumstances of a particular project.
It is State policy that the final determination of reasonableness will be made only after a careful and thorough
consideration of a wide range of criteria. However, noise barriers will definitely not be built if most affected
residents do not want them.
FHWA COMMENT 2: In accordance with FHWA noise regulations, the views of the impacted residents
should be a major consideration in determining the reasonableness of
abatement. Barriers should definitely not be built if most of the impacted
residents do not want them.
The following criteria will normally be used to determine the reasonableness of a noise barrier (NOTE: "Yes"
means construction of a barrier is reasonable; "no" means construction of a barrier is not reasonable; "high" and
"low" indicate differences in importance):
1. The barrier cost is no more than $25,000/residence.
$30,000/residence = HIGH NO
FHWA COMMENT 3: Several points that should be remembered regarding barrier cost are the
following:
" Barrier cost is an important consideration but only one of a number of factors that
need to be considered.
" SHAs typically determine reasonable cost by using a cost index, usually with residences
representing people impacted. Most SHAs use a cost/residence index, while some use a
cost/residence/dBA reduction. An acceptable cost/residence index should be within the
range of $15,000-50,000/residence. Other acceptable indices, such as
cost/residence/dBA reduction, should be shown to be within this range for
cost/residence. The cost of reasonable abatement may fall outside the acceptable range
if there is sufficient, additional justification, particularly if severe traffic noise impacts
occur.
45

The method used to count residences is important and should be clearly delineated.
The number of residences should include all dwelling units, e.g., owner-occupied, rental
units, mobile homes, etc. When counting residences to determine reasonableness, all
"benefitted" residences should be included, regardless of whether or not they were
identified as impacted (each unit in a multifamily building should be counted as one
residence in determining both impacts and benefits). A State should define the
threshold of noise reduction which determines a "benefitted" residence. This threshold
should be within the range of 3-5 dBA.
" Some SHAs are allowing a third party to pay the difference between the actual cost of a
traffic noise barrier and the cost that is deemed to be reasonable. There is no
prohibition to this in Federal law or regulations, as long as it is done in a
nondiscriminatory manner. It is an acceptable method to achieve local participation in
the responsibility for addressing the problems of highway traffic noise. It is also a
method that may provide abatement for traffic noise problems that might otherwise go
unmitigated.
2. "Most" impacted residents want a noise barrier (Get letter from local official or community group
stating residents' desire; also, encourage local officials to include highway traffic noise in the land
use planning process for added noise abatement consideration).
>80% = HIGH YES; 50-80% = LOW YES; 40-50% = LOW NO; 80% = HIGH YES; 50-80% = LOW YES; 30-50% = LOW NO; 80% = HIGH YES; 50-80% = LOW YES; 30-50% = LOW NO;

5. The future build noise levels are at least 65 dBA.
>70 dBA = HIGH YES; 65-70 dBA = LOW YES; 60-65 dBA = LOW NO; 10 dBA = HIGH YES; 5-10 dBA = LOW YES; 3-5 dBA = LOW NO; 5 dBA = HIGH YES; 3-5 dBA = LOW YES;

Can a 5 dBA noise reduction be achieved?
NOISE BARRIERS FOR PROJECT:
Feasibility
Yes No
Reasonableness
REASONABLENESS FACTORS YES NO
1. Cost/residence
2. Residents' desires
3. Development vs.
highway timing
4. Development existence
5. Build level 65 dBA
6. Build level 5 dBA
greater than existing
7. Build level 3 dBA
greater than no-build
8. ADDITIONAL CONSIDERATIONS:
High Low Low High
DECISION
Are barriers feasible? Yes No
Are barriers reasonable? Yes No
REASONS FOR DECISION:
What data are needed to complete the checklist?
To complete the checklist, do the following:
" Count the number of "benefitted" residences.
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COMMENT 11: As previously stated, residences must include all dwelling units, e.g., owner-occupied,
rental units, mobile homes, etc. When counting residences to determine reasonableness,
all "benefitted" residences must be included, regardless of whether or not they were
identified as impacted (each unit in a multifamily building must be counted as one
residence in determining both impacts and benefits).
" Design abatement to achieve a substantial noise reduction.
COMMENT 12: Noise barriers should be designed to achieve a substantial noise reduction. SHAs
normally define substantial noise reduction in the range from 5-10 dBA. A decision
must also be made to provide this reduction either at a location in the middle of the
barrier or at a location near the end of the barrier. NOTE: Remember the rules-ofthumb
for trial barrier height and length. Height: 5 dBA for the height to break the
line-of-sight between the source and receiver plus 1.5 dBA for each 1 meter in height
thereafter. Length: 8 times the distance from the barrier to the receiver.
" Use a State-defined value to estimate barrier cost.
COMMENT 13: Most SHAs use a value in the range from $160-215/sqmt to estimate barrier cost, for
posts and barrier material in place.
" Determine:
¸ views of the impacted residents;
¸ existing and future build and no-build noise levels;
¸ history of the highway development;
¸ history of the housing development;
¸ current zoning and extent to which existing land use in the area is changing;
¸ extent to which local officials have considered highway traffic noise in the local land use
planning process.
The examples in this paper (1) consider residences that receive at least a 3 dBA noise level reduction to be
"benefitted," (2) design for an 8 dBA barrier insertion loss (must have at least 5 dBA), and (3) use $160/sqmt to
estimate barrier cost.
Project Examples:
The following examples are meant to illustrate specific applications of the previously discussed reasonableness and
feasibility criteria. It should be noted that inclusion of a larger number of criteria in procedures allows for greater
flexibility in abatement decisionmaking.
EXAMPLE 1:
The proposed project will widen an existing 4-lane freeway to 8 lanes. Ten single -family homes are impacted in a
stable, residential neighborhood. Seven of the homes were constructed prior to 1955; the other three were built
between 1970 and 1983. Typical noise levels for residences in rural areas, such as this was prior to 1955, are 45-50
49

dBA. A 2-lane highway was originally constructed in the area in 1965 and was later widened to 4 lanes in 1975.
The existing noise level in the area is 66 dBA. A future build noise level of 68 dBA and a future no-build noise
level of 68 dBA are predicted for the design year (2011). A 4¼ meter high noise barrier will reduce noise for the
ten homes by 8 dBA and will cost $290,000. All the residents want a noise barrier to be constructed. Highway
traffic noise is not currently considered in local land use planning.
See the checklist for Example 1 on page 63.
Example 1 illustrates a typical widening of an existing freeway. Existing noise levels change very little, and there is
no difference between future build and no-build noise levels. The barrier cost per residence exceeds the established
cost index. SHAs frequently use these factors alone to support a "no" decision for noise barriers. However, often
the affected areas are stable, well established neighborhoods where traffic noise has increased noise levels
substantially over time, as in this example. These factors, along with the slight exceedance of the cost index, could
result in a "yes" decision. This example illustrates a flexible application of reasonableness criteria for a "gray area,"
as shown by the checklist.
EXAMPLE 2:
The proposed project will widen an existing 2-lane highway to 4 lanes. Ten single-family homes are impacted in
area with mixed residential and commercial zoning, which has not changed in the last two decades. Two of the
homes were constructed in the 1920's, two between 1950 and 1960, and six since 1987. A gravel roadway was
originally paved in 1948, and several reconstructions of the paved highway have occurred since then. The existing
noise level in the area is 69 dBA. A future build noise level of 73 dBA and a future no-build noise level of 71 dBA
are predicted for the design year (2011). An 3½ meter high noise barrier will reduce noise for the ten homes by 6
dBA and will cost $240,000. All the residents want a noise barrier to be constructed.
See the checklist for Example 2 on page 64.
Example 2 illustrates another "gray area" using the checklist. The affected residents want a barrier, the cost is
reasonable, and the future build noise level is 73 dBA. Many SHAs would make a decision of "yes" for a noise
barrier, and this is acceptable. However, since most development in the area is recent, the difference between future
build and no-build noise levels is slight, and the area has mixed zoning, the answer could also be "no." Again, this
example illustrates flexibility in the decisionmaking process.
EXAMPLE 3:
The proposed project will construct a 4-lane highway on new location. Eleven single-family homes are impacted in
a residential neighborhood. All of the homes were built in the 1960's except one that has been constructed in the
last year. The existing noise level in the area is 45 dBA. A future build noise level of 72 dBA and a future no-build
noise level of 45 dBA are predicted for the design year (2011). A 3 meter high noise barrier will reduce noise for
ten of the homes by 7 dBA (the eleventh home will receive 2 dBA reduction) and will cost $385,000. Residents in
seven of the homes want a barrier; residents in the other four do not.
See the checklist for Example 3 on page 65.
Example 3 illustrates abatement decisionmaking for a highway on new location. The project has a large increase in
existing noise levels, as well as a large difference between future build and no-build noise levels. Noise levels will
be almost eight times as loud as they are now - there will be a big change in the noise environment. Most SHAs
would say the answer for abatement is "no," solely because the barrier cost exceeds the reasonable cost index by
50

50%. However, while being important, cost should not always be the overriding factor in abatement
decisionmaking. The extenuating circumstances for this project clearly point to strong consideration of a "yes"
answer.
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EXAMPLE 1 (see discussion on page 61):
FEASIBILITY Yes No
Can a 5 dBA noise reduction be achieved? X
REASONABLENESS FACTORS YES NO
High Low Low High
1. Cost/residence X
2. Residents' desires X
3. Development vs. X
highway timing
4. Development existence X
5. Build level 65 dBA X
6. Build level 5 dBA X
greater than existing
7. Build level 3 dBA X
greater than no-build
8. ADDITIONAL CONSIDERATIONS:
Traffic noise not currently considered in local land use planning activities. 7 of 10 homes built before
highway. Noise in area has increased by 20 dBA over time. Area will have gone from no highway to an 8lane
freeway.
DECISION
Are barriers feasible? Yes X No
Are barriers reasonable? Yes X No
REASONS FOR DECISION: More importance given to the residents' desire for a barrier, the
existence of 70 % of the homes prior to the highway, a 20 dBA
increase in noise levels over time, and going from no highway to an
8-lane freeway.
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EXAMPLE 2 (see discussion on page 61):
FEASIBILITY Yes No
Can a 5 dBA noise reduction be achieved? X
REASONABLENESS FACTORS YES NO
1. Cost/residence X
2. Residents' desires X
High Low Low High
3. Development vs. X
highway timing
4. Development existence X
5. Build level 65 dBA X
6. Build level 5 dBA X
greater than existing
7. Build level 3 dBA X
greater than no-build
8. ADDITIONAL CONSIDERATIONS:
Area has mixed commercial and residential zoning.
DECISION
Are barriers feasible? Yes X No
Are barriers reasonable? Yes No X
REASONS FOR DECISION: More importance given to the recent development in the area (6 homes
since 1987), only a 2 dBA increase in build over no-build noise levels,
and mixed zoning in the area.
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EXAMPLE 3 (see discussion on page 62):
FEASIBILITY Yes No
Can a 5 dBA noise reduction be achieved? X
REASONABLENESS FACTORS YES NO
High Low Low High
1. Cost/residence X
2. Residents' desires X
3. Development vs. X
highway timing
4. Development existence X
5. Build level 65 dBA X
6. Build level 5 dBA X
greater than existing
7. Build level 3 dBA X
greater than no-build
8. ADDITIONAL CONSIDERATIONS:
This will be a 4-lane highway on new location in an established neighborhood. Noise levels will increase by
27 dBA over existing levels. The future build noise levels will be 27 dBA greater than the future no-build
levels. Most residents want a barrier.
54
DECISION
Are barriers feasible? Yes X No
Are barriers reasonable? Yes X No
REASONS FOR DECISION: More importance given to a 4-lane highway on new location, a 27 dBA
increase over existing noise levels, a 27 dBA increase in build over
no-build noise levels, and most residents' desire for a barrier.

Summary:
One of the most difficult parts of traffic noise analysis is determining the reasonableness and feasibility of
abatement. FHWA has previously issued guidance containing a general discussion on the determination of
reasonableness and feasibility. The guidance recommended consideration of a wide range of criteria and listed
possible criteria. However, the guidance did not address the details of how to consider the criteria. This discussion
has addressed the details of determining the reasonableness and feasibility of noise abatement. Specific examples
have been shown. The date that development occurred along highways should be an
important criterion in determining the reasonableness of noise abatement.
Good program management supports the need for highway traffic noise abatement decisionmaking policies.
Abatement decisionmaking must not be arbitrary and capricious. The reasoning for decisions should be available
and supportable. Objective, quantifiable decisionmaking criteria can aid in promoting better public understanding
and acceptance of decisions.
Inclusion of a wide range of reasonableness criteria provides greater flexibility in abatement decisionmaking. Such
flexibility is essential to allow for consideration of special circumstances in individual cases. Policies should not be
rigidly applied.
E. Type II Projects for Highway Traffic Noise Abatement
Purpose
Highway traffic noise is a major contributor to overall transportation noise. It emanates from newly constructed
highways and from highways that are already in place. People often ask what can be done to deal with highway
traffic noise problems along existing highways. The following discussion outlines measures that can be taken in the
Federal-aid highway program to abate existing traffic noise problems. The discussion highlights the prioritization
process for highway projects that provide this abatement and presents information on the methods used by selected
States to accomplish the prioritization.
Background
The Federal Aid Highway Act of 1970 included a provision which required the FHWA to develop noise standards
for use in the planning and design of new highway projects. These standards were promulgated, in the form of a
regulation, by FHWA on February 8, 1973. Later, because of pressure received from a number of States, this
provision was amended by the Federal Aid Highway Act of 1973 to permit the control of traffic noise on previously
constructed highways. As a result, FHWA's noise regulation, currently contained in 23 CFR 772, was revised to
provide for Federal participation in noise abatement projects along existing highways. The regulation defines these
types of projects as Type II projects (these projects are also often referred to as retrofit projects). The development
and implementation of Type II projects are not mandatory requirements of Federal law or regulation. A program to
implement such projects results from a strictly optional decision by a State to provide noise abatement along
existing highways.
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FHWA Noise Regulations
The FHWA noise regulations indicate that Type II projects will not normally be approved for those activities and
land uses which come into existence after May 14, 1976, because the FHWA publicly stated at that time that local
governments must help control highway traffic noise impacts through noise compatible land use planning and
zoning. The intent of this provision is to establish a date to determine Federal-aid eligibility for Type II projects
based upon time of land development. The exact date for eligibility is not specifically defined in the regulation.
Each SHA and accompanying FHWA Division Office is encouraged to establish a mutually acceptable specific date
to determine Federal-aid eligibility for Type II projects and then consistently apply this date to all Type II abatement
locations. One possible date for consideration that has evolved is the date of issuance of a building permit. Other
dates used by States to determine eligibility include the date of recording of the plat plan and the date of actual
construction. While there may be a wide variation in time for the dates that are used, any of the dates are acceptable
to determine the existence of development, if they are agreeable to both the SHA and the FHWA Division Office
and are consistently applied.
Noise abatement measures may be approved for activities and land uses that come into existence after May 14,
1976, provided that local authorities have taken measures to exercise land use control over the remaining
undeveloped lands adjacent to highways in the local jurisdiction to prevent further development of incompatible
activities. These measures may include any of the noise abatement measures contained in the FHWA publication,
"The Audible Landscape."
An SHA voluntarily requesting Federal-aid participation for eligible Type II projects is required to perform a noise
analysis of sufficient scope to: (1) identify that a traffic noise impact exists, (2) demonstrate that the proposed noise
abatement measures will reduce the traffic noise impact, and (3) determine that the overall noise abatement benefits
outweigh the overall adverse social, economic, and environmental effects and the costs of the noise abatement
measures. While the first two criteria are relatively easy to quantify, the third criterion, along with cost
considerations, becomes more difficult to quantify. The FHWA has not developed or specified any one method of
analysis for Type II projects. Instead, States are encouraged to use good judgement in the consideration of all
relevant factors, both beneficial and adverse. The FHWA does not expect all factors to be quantified, but does
expect a decision based on the social, economic, and environmental benefits and disbenefits of the noise abatement
measures.
Projects for Type II noise abatement may include the following measures: (1) traffic management measures (e.g.,
traffic control devices and signing for prohibition of certain vehicle types, time-use restrictions for certain vehicle
types, modified speed limits, and exclusive lane designations), (2) alteration of horizontal and vertical alignments,
(3) construction of noise barriers, and (4) noise insulation of public use or nonprofit institutional structures. The
construction of noise barriers is the mitigation measure most often associated with the concept of traffic
noise abatement.
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Type II Barrier States
Since the Type II noise program is optional, only 17 States have elected to participate in this program. The main
reason for this is that Type II abatement projects must compete with all other construction needs of the States, and
highway construction needs normally far exceed available funds. As of 1992, a listing of highway traffic noise
barriers built by SHAs indicated that the 17 States constructed over 346 kilometers of Type II noise barriers at a
cost of over $240 million in 1992 dollars. The following table summarizes the listing:
Table 11: Type II Noise Barrier Construction By State
By Total Barrier Length (1970-1992)
Linear Length Actual Cost 1992 Dollars
State In Kilometers (Millions) (Millions)
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Cost In
California 182.6 $90.4 $105.1
Minnesota 42.2 17.7 28.3
Michigan 28.6 16.2 18.5
Maryland 24.7 37.0 37.7
Colorado 21.7 4.9 5.4
New York 15.1 13.6 13.6
Wisconsin 10.4 11.6 11.8
New Jersey 6.9 11.4 11.5
Connecticut 5.1 2.1 2.8
Oregon 2.6 1.3 1.3
Washington 2.0 1.6 1.6
Louisiana 1.5 0.2 0.3
Iowa 1.1 0.4 0.5
Georgia 0.9 0.5 0.5
Massachusetts 0.4 0.7 0.8
Florida 0.3 0.1 0.1
Ohio 0.3 0.2 0.2
Total 346.4 $209.9 $240.0

Priority Rating Systems
General Discussion
The SHAs have great flexibility in developing and structuring a Type II program. One program management tool
that SHAs have found to be essential is a priority rating system. Such a system enables them to uniformly and
equitably handle traffic noise impacts and complaints along existing highways while providing a rational basis for
an important part of a very tough decisionmaking process. The FHWA strongly encourages the development and
use of a priority rating system to indicate the relative priority of individual projects with other potential Type II
projects in a State. Factors that may be considered include:
(1) applicable State law,
(2) type of development to be protected,
(3) magnitude of the traffic noise impact,
(4) cost - benefits,
(5) population density of the affected area,
(6) day-night use of the property,
(7) feasibility and practicability of noise abatement at the site,
(8) availability of funds,
(9) existing noise levels,
(10) achievable noise reduction,
(11) intrusiveness of highway noise,
(12) public's attitude,
(13) local government's efforts to control land use adjacent to the highway,
(14) date of construction of adjoining development,
(15) increase in traffic noise since the development was constructed,
(16) local noise ordinances,
(17) feasibility of abating the noise with traffic control measures.
These factors are not meant to be all inclusive, but rather are meant to indicate that implementation of a Type II
program should be based upon a wide range of varying considerations. A number of States with existing Type II
programs have already developed specific methodologies for determining relative priorities among projects.
California, which has built over 50% of existing Type II barriers, uses the following formula:
California: Priority Index =
Achievable Reduction (db) x (Noise Level - 67) x Number of Living Units
Cost ($1,000)
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Michigan uses a similar formula:
Michigan: Priority Factor =
Achievable Reduction x Number of Living Units Protected
Barrier Cost
A more complete discussion of the above formulas is included in the next section of this discussion. Connecticut
and New Jersey have procedures that are representative of more complex priority rating systems. Whether relatively
simple or more complex, the FHWA strongly encourages the development and use of procedures such as these for
effective management of a Type II program.
Selected State Examples
Three States have been selected for a more detailed discussion of their priority rating systems. These States, which
include California, Michigan, and Massachusetts have been selected because of their range of experience levels
with the Type II noise program. California, as mentioned above, leads the country in the construction of Type II
projects. Michigan also has many years of experience with a Type II noise program, although its program is
considerably smaller than California's program. Massachusetts on the other hand is a good example of a State that
has just established a Type II noise program.
California
NOTE: This California information was furnished in 1988.
The California Department of Transportation (CALTRANS) initiated its Type II noise program, which it refers to
as the Community Noise Abatement Program, in 1974. This program provides for the construction of noise barriers
adjacent to residential areas where: (1) the noise from an adjacent existing freeway exceeds the FHWA noise
abatement criteria for residential land use (67 dBA L eq), and (2) the residential area existed prior to the construction
of the adjacent freeway or prior to an alteration of the freeway which caused a substantial increase in noise levels (3
dBA).
In 1978, the State legislature passed a provision that required CALTRANS to develop and implement a priority
ranking system for the installation of noise barriers along existing freeways in the California Freeway and
Expressway System. In addition, this legislation required CALTRANS, when all freeways had been ranked in
priority order and consistent with available funding, to recommend a program of construction of noise attenuation
barriers beginning with the highest priority. Although this legislation required CALTRANS to establish a priority
ranking of projects, it did not require a commitment of funds to the program, leaving that decision to the California
Transportation Commission.
59

As a result, CALTRANS inventoried all the residential areas meeting the above noise level exposure and time of
development criteria, and then segregated them into logical project limits. The individual projects were then
assigned a priority index in accordance with the following formula:
PI = AR X (NL - 67) X LU
COST ($1000)
Where:
PI = Priority Index
AR = Achievable Reduction*
NL = Measured Noise Levels, L eq
LU = Number of Living Units
* In order to be considered cost effective, the achievable reduction must equal or exceed 5 dBA.
Although CALTRANS' Type II Noise Program was initiated in 1974, it wasn't until the 1976-77 fiscal year that any
substantial amount of funds were devoted to this program because of funding constraints. Current cost of this
program is averaging about $1.7 million per kilometer, including the cost of landscaping and irrigation system
modifications, incidental paving and the incorporation of safety shaped barriers where needed.
CALTRANS' current inventory of unconstructed projects shows a need of approximately $190 million (in 1987
dollars) for Type II projects. The current State Program includes $12.2 million for the Type II program for the 5
year period from the 1987-88 thru 1991-92 Fiscal Years, or just over $2.4 million annually. This is a substantial
reduction compared to prior years when as much as $20 million annually was budgeted to the Type II program
in California.
A unique feature of the CALTRANS Type II program is that State legislation allows cities or counties to construct
noise barriers (to State standards) which are included in the State's Program, ahead of the time that such barriers
reach a high enough priority for State funding. When the funding priority is reached, CALTRANS is then required
to reimburse the city or county, without interest, for the cost of such barrier constructed. To date, three Cities have
constructed noise barriers along State Highways under this provision of the Code.
CALTRANS generally initiates Type II projects by holding public informational type meetings with the residents
affected. These meetings are held to explain the proposed project, such as wall locations, proposed wall heights,
attenuation expected, and other potential benefits and disadvantages. A primary purpose of these meetings is to
receive public comments on the perception of the project impact on the community and the people's feelings on
proceeding with the project. Generally, CALTRANS' program has been accepted by the public and CALTRANS
has been encouraged to construct the projects as soon as possible.
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Michigan
The Michigan Department of Transportation (MDOT) constructed its first Type II noise barrier in 1973 as a result
of public complaints and a realization that there were existing highway traffic noise problems. The decision to build
the barrier was facilitated by the facts that sufficient right-of-way for a barrier already existed and that Federal-aid
was available to participate in the cost. The MDOT had confidence that necessary resources to administer a Type II
abatement program could be found if the program became long term.
Subsequent to construction of the first noise barrier, the MDOT was able to identify approximately 1100 potential
Type II abatement sites along 560 kilometers of limited access highways using a staff of three persons for four
months. The staff completed the inventory by visually identifying areas with potential traffic noise problems and
then calculating noise levels using existing traffic and site data.
The MDOT has used several different formulas to prioritize Type II projects in the past. Experience has led to
current use of the following formula:
Priority Factor = (Achievable Reduction) x (Number of Living Units Protected)
Barrier Cost
Where:
Achievable Reduction - is the reduction at the first row of residences, halfway between the residence and the
right-of-way line, based on a measurement of existing noise levels and calculations of the expected
attenuation from a barrier of reasonable height.
Number of Living Units Protected - is the number of living units whose noise level will be reduced to or
below 67 dBA L eq(h) after the barrier is built, usually including units constructed after the freeway as well as
units constructed before the freeway. The MDOT reserves the right to exclude or lessen the consideration of
units constructed after the freeway if they comprise the majority of protected units.
Barrier Cost - is a value of $820 per linear meter multiplied by the MDOT percentage share of a specific
project. State law requires municipal governments of over 35,000 population to contribute between 1 and
1½% of the cost of noise barriers (as well as for bridges, pavement, etc.). The MDOT also requires the local
government to pay the entire cost of highway project items deemed to be "optional" by the MDOT (this has
not yet been applied to a Type II project).
The MDOT has guidelines containing procedures for public involvement in the Type II program. While the
procedures outline formal contacts, meetings, presentations, and a public hearing, it has been found that performing
all of the procedures is often not necessary. The MDOT has constructed many Type I noise barriers (barriers that
are part of a new highway construction project), and in areas near those where noise barriers have previously been
built, public involvement is mostly informal yet successful. Before proceeding to final design for a Type II project,
the MDOT requires that local officials submit an adopted resolution stating their desire for a noise barrier. Local
officials are also required to adopt a land use plan that controls development to lessen future noise problems. These
two requirements add local involvement in dealing with traffic noise problems.
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While no special funds have been designated to provide Type II noise abatement in Michigan, the MDOT has
consistently chosen to spend existing highway funds for this purpose. Special efforts have been made through
planning and programming to develop a program of projects reasonably in line with projected revenues. This has
been a very difficult task since there are so many identified traffic noise problem areas along Michigan's freeways
(there are approximately 500 sites that have been identified with noise levels above 72 dBA L eq(h)). Only one Type
II project has been implemented as a result of the political process rather than through prioritization. Approximately
1 1/3 person years of noise staff time is required annually for Type II program activities. This includes complaint
investigation and response, noise measurements, acoustic design of noise barriers, project development, contract
monitoring, etc.
Massachusetts
Massachusetts built one Type II noise barrier in 1985 as a result of strong public complaints and the political
process. Subsequently, a decision was made to develop an ongoing Type II program to respond to continuing public
and political concern for highway traffic noise problems.
The Massachusetts Department of Public Works (MDPW) first developed a policy statement which outlined the
MDPW's decision to apply the Type II program to all Interstate routes in Massachusetts under MDPW jurisdiction.
These routes totaled 659 kilometers in length. Prior to conducting an inventory of traffic noise problem areas, the
MDPW examined the effectiveness of 18 Type I noise barriers previously built along Interstate routes under
MDPW control. This examination of existing noise barriers was used later to aid in establishing a Type II
prioritization process. The MDPW then proceeded to follow the procedures outlined in its Type II policy statement.
Noise levels were computed along the Interstate right-of-way lines using links from the "1987 Estimate of the Cost
of Completing the National System of Interstate and Defense Highways in the Commonwealth of Massachusetts."
Links 75 dBA L eq(h) or louder (approximately half the total kilometers) were retained for further consideration.
Initially, the Massachusetts Type II program included only the loudest third of the 75 dBA or louder links - these
were 79 dBA leq(h) or louder at the right-of-way line for approximately 128 kilometers of Interstate highways.
Next, all noise-sensitive land uses within 150 meters of the 75 dBA or louder links were identified. This was a very
labor-intensive activity since land records for each town and city were reviewed to determine the date that a
particular land use originated.
Actual noise barrier locations were identified next through field surveillance along the 128 kilometers of 79 dBA or
louder Interstate highways. Areas with no noise-sensitive activities and areas with fewer than six residences were
excluded in accordance with MDPW policy. The acoustical feasibility of noise barriers at problem locations along
both sides of the highways was reviewed. Locations where it was acoustically impossible to achieve a 10 decibel
noise reduction due to terrain conditions and locations where the Interstate highway noise did not predominate over
local roadway noise by 5 decibels or more were eliminated from further consideration. The feasibility review
resulted in a listing of 53 noise barriers that were deemed to be "acoustically feasible." The barriers were sized to
obtain at least a 10 decibel noise reduction for at least one noise-sensitive activity. Only first-floor dwelling units
were taken into account, and barrier heights were constrained to between 3.6 and 9.1 meters. The listing showed 53
barriers that ranged in height from 3.6 to 7.9 meters, that ranged in length from 366 to 2408 meters and that
protected between 1 and 266 activities each.
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The listing of 53 barriers was lastly prioritized using the following method:
Primary Rating:
This is a measure of the existing traffic noise impact summed over all noise-sensitive receivers for each
noise barrier. The rating consists of a summation of "Priority Points" for each barrier, computed as follows:
" 5 points accrue for each year of noise impact. If the receivers preceded the highway, the impact
started when the highway was opened to traffic and continues up to the present. If the highway
preceded the receivers, the impact started when the receivers arrived and continues up to the present.
The arrival of receivers is defined as the date that the oldest noise-sensitive activity originated in the
area of the barrier.
" For residences of all types, the following points accrue:
* Each residence now 68-72 dBA L eq(h): 1 point
* Each residence now 73-77 dBA L eq(h): 5 points
* Each residence now over 77 dBA L eq(h): 25 points
* For places of worship, the following points accrue:
* Each place of worship now 68-72 dBA L eq(h): 5 points
* Each place of worship now over 72 dBA L eq(h): 25 points
" For schools, hospitals, nursing homes, libraries, or recreational areas of all types, the following points
accrue:
Supplemental Rating:
* Each school, hospital, nursing home, library, or recreational area now 68-72 dBA L eq(h):10
points
* Each school, hospital, nursing home, library, or recreational area now over 72 dBA L eq(h):50
points
This is a measure of the average cost-effectiveness of protecting the activities in the area of each noise
barrier. It is computed as the barrier's estimated 1987 cost divided by the noise reduction and the number of
protected units. It is abbreviated as the "Cost/Reduction/ Unit Rating" and has units of $/dB/unit.
63

The barrier listing was prioritized from highest to lowest according to the Primary Rating procedure. Where
Primary Rating ties existed, the listing was prioritized according to the Supplemental Rating, where lower was
better.
The MDPW does not have a set amount of funds that is to be budgeted annually for Type II noise abatement.
Design is to proceed on the top two or three priority Type II noise barriers, and the programming and
implementation of projects will follow. Additional work must be accomplished to make the Type II program
ongoing, but the MDPW has developed a comprehensive, rational, well-documented beginning for aiding in the
management of such a program.
Summary
The FHWA noise regulation allows a State to spend Federal-aid highway funds for projects to provide noise
abatement along existing highways. These projects are called Type II projects and are implemented strictly at the
option of a State - they are not mandatory requirements. The noise regulation provides States with considerable
flexibility for designing their own Type II traffic noise abatement program, including the very important task of
individual project prioritization. The regulation requires that the overall noise abatement benefits outweigh the
overall adverse social, economic, and environmental effects and the costs of the noise abatement measures. This
determination relies on good judgement by the States, rather than prescriptive Federal procedures since the
individual States are in the best position to make these determinations on a local basis.
As of 1992, 17 States had elected to implement Type II noise abatement programs. This discussion has stressed the
need for a sound, rational approach to determining individual Type II project priorities for effective management of
Type II programs. Information has been presented for three State Type II programs. California has constructed the
most Type II projects, Michigan has a long-standing Type II program, and Massachusetts is currently implementing
such a program.
F. "Date of Public Knowledge"
SHAs must identify when the public is officially notified of the adoption of the location of a proposed highway
project. This date establishes the "date of public knowledge" and determines the date when the Federal/State
governments are no longer responsible for providing noise abatement for new development which occurs adjacent to
the proposed highway project. The FHWA has previously left entirely to a State the determination of the "date of
public knowledge." However, from now on, the "date of public knowledge" cannot precede the date of approval of
CEs, FONSIs, or RODs.
G. Highway Traffic-Induced Vibration
There are no Federal requirements directed specifically to traffic-induced vibration. All studies the SHAs have
done to assess the impact of operational traffic-induced vibrations have shown that both measured and predicted
vibration levels are less than any known criteria for structural damage to buildings. In fact, normal living activities
(e.g., closing doors, walking across floors, operating appliances) within a building have been shown to create
greater levels of vibration than highway traffic. Vibration concerns should be addressed on a case-by-case basis as
deemed appropriate.
64

H. Written State Noise Policies
All SHAs must adopt written statewide noise policies that have been approved by FHWA. Regional Administrators
are delegated the authority to approve the State policies; this authority may be redelegated to Division
Administrators. The policies must demonstrate substantial compliance with the noise regulations, 23 Code of
Federal Regulations Part 772, as well as with the reissued noise policies and guidance. Copies of draft policies
should be sent to HEP-40 for review and comment; one copy of each approved policy should also be sent to HEP-
40.
65

INDEX
1. noise standards ............................................................ 5
2. traffic noise impacts .................................................... 6-8, 22
3. planned, designed, and programmed ......................................... 9-10
4. noise analysis locations
exterior areas ................................................... 10, 20
frequent human use .............................................. 10, 20
interior areas ................................................... 10, 20
5. substantial noise reduction ............................................. 7, 11, 49
6. reasonable and feasible .......................................... 11-12, 36-41, 44
7. views of the impacted residents ................................... 12, 42-43, 45-46
8. Type II
abatement or projects ............................. 6, 8-9, 13-14, 15-16, 57-67
land uses which come into existence ................................ 13-14, 58
land use control .......................................... 1, 13-14, 16, 45
9. noise abatement measures
traffic management measures .................................... 13, 22, 56
alteration of horizontal and vertical alignments ......................... 13, 56
construction of noise barriers ....................................... 13, 56
buffer zone ..................................................... 14, 31
noise insulation ............................................... 14, 31, 56
10. or trees and shrubs ....................................................... 30
11. pavement ............................................................... 31
12. severe traffic noise impacts .............................................. 14, 45
13. traffic noise prediction
worst hourly traffic noise impact ........................................ 16
vehicle speed ................................................... 16, 20
design year ......................................................... 5
vehicle emission levels .......................................... 2, 15, 18
14. noise abatement criteria (NAC) ............................................ 3, 5-7
15. approach or exceed ......................................................... 6

16. substantially exceed or substantial increase .................................. 6-8, 39
17. coordination with local officials .............................. 3, 13-15, 24, 46-47, 49
18. construction noise ................................................ 16-17, 24-25

Wednesday,
January 17, 2001
Part X
Department of
Defense
Department of the Army, Corps of
Engineers
33 CFR Part 323
Environmental
Protection Agency
40 CFR Part 232
Further Revisions to the Clean Water Act
Regulatory Definition of Discharge of
Dredged Material; Final Rule
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4550 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
33 CFR Part 323
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 232
[FRL–6933–2]
Further Revisions to the Clean Water
Act Regulatory Definition of
‘‘Discharge of Dredged Material’’
AGENCIES: Army Corps of Engineers,
Department of the Army, DOD; and
Environmental Protection Agency.
ACTION: Final rule.
SUMMARY: The U.S. Army Corps of
Engineers (Corps) and the
Environmental Protection Agency (EPA)
are promulgating a final rule to amend
our Clean Water Act (CWA) section 404
regulations defining the term ‘‘discharge
of dredged material.’’ Today’s final
action is being taken to follow-up on our
earlier proposed rulemaking of August
16, 2000, in which we proposed to
amend the regulations to establish a
rebuttable presumption that mechanized
landclearing, ditching, channelization,
in-stream mining, or other mechanized
excavation activity in waters of the U.S.
result in more than incidental fallback,
Category
and thus involve a regulable discharge
of dredged material.
As a result of the comments we
received, today’s final rule reflects
several modifications from the proposal.
In response to concerns raised by some
commenters that the proposal would
have shifted the burden of proof to the
regulated community as to what
constitutes a regulable discharge, we
have revised the language to make clear
that this is not the case. Additionally,
we received numerous comments
requesting that we provide a definition
of ‘‘incidental fallback’’ in the
regulatory language. In response, today’s
final rule does contain such a definition,
which is consistent with past preamble
discussions of that issue and is drawn
from language contained in the relevant
court decisions describing that term.
Today’s final rule will both enhance
protection of the Nation’s aquatic
resources, including wetlands, and
provide increased certainty and
predictability for the regulated
community. At the same time, it
continues to allow for case-by-case
evaluations as to whether a regulable
discharge of dredged material results
from a particular activity, thus retaining
necessary program flexibility to address
the various fact-specific situations that
are presented.
EFFECTIVE DATE: February 16, 2001.
FOR FURTHER INFORMATION CONTACT: For
information on today’s rule, contact
either Mr. Mike Smith, U.S. Army Corps
of Engineers, ATTN CECW–OR, 441 ‘‘G’’
Street, NW, Washington, DC 20314–
1000, phone: (202) 761–4598, or Mr.
John Lishman, U.S. Environmental
Protection Agency, Office of Wetlands,
Oceans and Watersheds (4502F), 1200
Pennsylvania Avenue N.W.,
Washington, DC 20460, phone: (202)
260–9180.
SUPPLEMENTARY INFORMATION:
I. Potentially Regulated Entities
Persons or entities that discharge
material dredged or excavated from
waters of the U.S. could be regulated by
today’s rule. The CWA generally
prohibits the discharge of pollutants
into waters of the U.S. without a permit
issued by EPA or a State approved by
EPA under section 402 of the Act, or, in
the case of dredged or fill material, by
the Corps or an approved State under
section 404 of the Act. Today’s rule
addresses the CWA section 404
program’s definition of ‘‘discharge of
dredged material,’’ which is important
for determining whether a particular
discharge is subject to regulation under
CWA section 404. Today’s rule sets
forth the agencies’ expectations as to the
types of activities that are likely to
result in a discharge of dredged material
subject to CWA section 404. Examples
of entities potentially regulated include:
Examples of potentially
regulated entities
State/Tribal governments or instrumentalities .......................................... State/Tribal agencies or instrumentalities that discharge dredged material
into waters of the U.S.
Local governments or instrumentalities .................................................... Local governments or instrumentalities that discharge dredged material
into waters of the U.S.
Federal government agencies or instrumentalities .................................. Federal government agencies or instrumentalities that discharge
dredged material into waters of the U.S.
Industrial, commercial, or agricultural entities .......................................... Industrial, commercial, or agricultural entities that discharge dredged
material into waters of the U.S.
Land developers and landowners ............................................................ Land developers and landowners that discharge dredged material into
waters of the U.S.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities that are
likely to be regulated by this action.
This table lists the types of entities that
we are now aware of that could
potentially be regulated by this action.
Other types of entities not listed in the
table could also be regulated. To
determine whether your organization or
its activities are regulated by this action,
you should carefully examine EPA’s
applicability criteria in section 230.2 of
Title 40 of the Code of Federal
Regulations, the Corps regulations at
part 323 of Title 33 of the Code of
Federal Regulations, and the discussion
in section II of today’s preamble. If you
have questions regarding the
applicability of this action to a
particular entity, consult one of the
persons listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
II. Background
A. Plain Language
In compliance with President
Clinton’s June 1, 1998, Executive
Memorandum on Plain Language in
government writing, this preamble is
written using plain language. Thus, the
use of ‘‘we’’ in this action refers to EPA
and the U.S. Army Corps of Engineers
(Corps), and the use of ‘‘you’’ refers to
the reader.
B. Overview of Previous Rulemaking
Activities and Related Litigation
Section 404 of the CWA authorizes
the Corps (or a State with an approved
section 404 permitting program) to issue
permits for the discharge of dredged or
fill material into waters of the U.S. Two
States (New Jersey and Michigan) have
assumed the CWA section 404
permitting program. On August 25, 1993
(58 FR 45008), we issued a regulation
(the ‘‘Tulloch Rule’’) that defined the
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Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
term ‘‘discharge of dredged material’’ as
including ‘‘any addition, including any
redeposit, of dredged material,
including excavated material, into
waters of the U.S. which is incidental to
any activity, including mechanized
landclearing, ditching, channelization,
or other excavation that destroys or
degrades waters of the U.S.’’ The
American Mining Congress and several
other trade associations challenged the
revised definition of the term ‘‘discharge
of dredged material,’’ and on January 23,
1997, the U.S. District Court for the
District of Columbia ruled that the
regulation exceeded our authority under
the CWA because it impermissibly
regulated ‘‘incidental fallback’’ of
dredged material, and enjoined us from
applying or enforcing the regulation.
That ruling was affirmed on June 19,
1998, by the U.S. Court of Appeals for
the District of Columbia Circuit.
Americian Mining Congress v. United
States Army Corps of Engineers, 951
F.Supp. 267 (D.D.C. 1997) (‘‘AMC’’);
aff’d sub nom, National Mining
Association v. United States Army
Corps of Engineers, 145 F.3d 1339
(D.C.Cir. 1998) (‘‘NMA’’).
On May 10, 1999, we issued a final
rule modifying our definition of
‘‘discharge of dredged material’’ in order
to respond to the Court of Appeals’
holding in NMA, and to ensure
compliance with the District Court’s
injunction (64 FR 25120). That rule
made those changes necessary to
conform the regulations to the courts’
decisions, primarily by modifying the
definition of ‘‘discharge of dredged
material’’ to expressly exclude
regulation of ‘‘incidental fallback.’’
The NMA court did not find that all
redeposits are unregulable, and
recognized that redeposits at various
distances from the point of removal are
properly the subject of regulation under
the CWA. As explained in the preamble
to the May 10, 1999, rulemaking, our
determination of whether a particular
redeposit of dredged material in waters
of the U.S. requires a section 404 permit
would be done on a case-by-case basis,
consistent with our CWA authorities
and governing case law. The preamble
to that rulemaking also described and
summarized relevant case law (see 64
FR 25121), for example, noting that the
NMA decision indicates incidental
fallback ‘‘. . . returns dredged material
virtually to the spot from which it
came’’ (145 F.3d at 1403) and also
describes incidental fallback as
occurring ‘‘when redeposit takes place
in substantially the same spot as the
initial removal.’’ 145 F.3d at 1401. The
NMA court also noted that ‘‘incidental
fallback’’ occurs when a bucket used to
excavate material from the bottom of a
river, stream, or wetland is raised and
soils or sediments fall from the bucket
back into the water; the court further
noted that ‘‘fallback and other
redeposits’’ occur during mechanized
landclearing, when bulldozers and
loaders scrape or displace wetland soil
as well as during ditching and
channelization when draglines or
backhoes are dragged through soils and
sediments. 145 F.3d at 1403. The
preamble also noted that the district
court in AMC described incidental
fallback as ‘‘the incidental soil
movement from excavation, such as the
soil that is disturbed when dirt is
shoveled, or the back-spill that comes
off a bucket and falls back into the same
place from which it was removed.’’ 951
F.Supp. at 270.
The NMA Court noted that the CWA
‘‘sets out no bright line between
incidental fallback on the one hand and
regulable redeposits on the other’’ and
that ‘‘a reasoned attempt to draw such
a line would merit considerable
deference.’’ (145 F.3d at 1405). The
preamble to our May 10, 1999,
rulemaking stated that we would be
undertaking additional notice and
comment rulemaking in furtherance of
the CWA’s objective to ‘‘restore and
maintain the chemical, physical, and
biological integrity of the Nation’s
waters.’’
Subsequent to our May 10, 1999,
rulemaking the National Association of
Homebuilders (NAHB) and others filed
a motion with the district court that
issued the AMC injunction to compel
compliance with that injunction. The
NAHB motion, among other things,
asserted that the May 10, 1999, rule
violated the court’s injunction by
asserting unqualified authority to
regulate mechanized landclearing. A
decision on that motion was still
pending at the time we issued our
August 16, 2000 proposal (65 FR 50108)
to establish a rebuttable presumption
that mechanized landclearing, ditching,
channelization, in-stream mining, or
other mechanized excavation activity in
waters of the U.S. will result in
regulable discharges of dredged
material.
As explained in the preamble, the
proposed rule set forth:
* * * our expectation that, absent a
demonstration to the contrary, the activities
addressed in the proposed rule typically will
result in more than incidental fallback and
thus result in regulable redeposits of dredged
material. It would not, however, establish a
new formal process or new record keeping
requirements, and Section 404 permitting
and application requirements would
4551
continue to apply only to regulable
discharges and not to incidental fallback.
65 FR 50113.
As with today’s final rule, the
proposal addressed only matters related
to the ‘‘discharge of dredged material’’
under section 404 of the CWA. We note
that other regulatory authorities may be
applicable to activities in waters of the
U.S., including stormwater permitting
requirements under CWA section 402,
and, in the case of ‘‘navigable waters of
the U.S.’’ (so-called navigable in fact
waters), section 10 of the Rivers and
Harbors Act of 1899. Readers should
refer to the preamble of the proposal for
further information on those authorities
(65 FR 50114).
The proposed rule had a 60 day
comment period, which ended on
October 16, 2000. While that public
comment period was still open, on
September 13, 2000, the district court
denied NAHB’s motion to compel
compliance with the AMC injunction,
finding that our earlier May 10, 1999,
rule was consistent with its decision
and injunction, and the decision of the
D.C. Circuit in NMA. American Mining
Congress v. U.S. Army Corps of
Engineers, Civil Action No. 93–1754
SSH (D.D.C. September 13, 2000)
(hereafter referred to as ‘‘NAHB Motion
Decision’’).
In that decision the court found that,
‘‘Inasmuch as this Court in AMC, and
the Court of Appeals in NMA,
invalidated the Tulloch Rule because it
regulated incidental fallback, the Court’s
order enjoining the agencies from
applying or enforcing the Tulloch Rule
must be understood to bar the agencies
from regulating incidental fallback.’’
NAHB Motion Decision, slip op. at 8–
9. The court then went on to determine
that by making clear that the agencies
may not exercise section 404
jurisdiction over redeposits of dredged
material to the extent that the redeposits
involve only incidental fallback, the
May 10, 1999, rulemaking did not
violate the court’s injunction and is
consistent with the decisions in AMC
and NMA. Id. at 10–11.
C. Discussion of Final Rule
We received approximately 9,650
comments on the August 16, 2000,
proposal (because the numbers given are
rounded off, we refer to them as
‘‘approximate.’’) Approximately 9,500
were various types of individual or form
letters from the general public
expressing overall support for the rule
or requesting it be strengthened. We
received approximately 150 comments
from various types of organizations,
state or local agencies, or commercial
entities, 75 of which provided detailed
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4552 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
comments, with approximately 50 of
these expressing opposition to the rule.
Organizations opposing the rule were
primarily construction and development
interests, mining and commerce
interests, as well as local agencies or
water districts with agricultural, flood
control, or utility interests. These
commenters often expressed the view
that the proposal was inconsistent with
the AMC and NMA opinions and the
CWA. These comments also often
expressed concern that the rebuttable
presumption would be difficult or
impossible to rebut and should be
removed from the rule, and also
frequently stated that a definition of
incidental fallback was necessary, with
many expressing preference for a
‘‘brightline’’ definition.
Organizations supporting the proposal
or its strengthening included state and
local natural resource and
environmental protection agencies and
environmental organizations. In
addition, one detailed letter from a
group of wetland scientists associated
with a variety of institutions was
received, and expressed support for the
proposed rule and its strengthening.
Commenters favoring the rule or its
strengthening generally believed that
the proposed rule’s presumption that
mechanized landclearing, ditching,
channelization, in-stream mining, or
other mechanized excavation activity in
waters of the U.S. result in more than
incidental fallback, and thus involve a
regulable discharge of dredged material,
was appropriate. Many of these
commenters, especially environmental
organizations, requested that the rule be
strengthened in a number of ways,
particularly by identifying certain
activities as always requiring a permit,
and making clear that if chemical
constituents are released into the water
column or if material is moved in a way
that permits its more ready erosion and
movement downstream, a regulable
discharge occurs. In addition, many of
the commenters favoring the proposed
rule or requesting that it be strengthened
also expressed the view that it should
define incidental fallback.
We have carefully considered all the
comments received on the proposal in
developing today’s final rule. A detailed
discussion of those comments and our
responses is set out in section III of
today’s preamble.
Like the proposal, today’s rule
modifies our definition of ‘‘discharge of
dredged material’’ in order to clarify
what types of activities we believe are
likely to result in regulable discharges.
As described in the preamble to the
proposed rule (65 FR 50111–50113),
based on the nature of the equipment,
we believe that the use of mechanized
earth moving equipment to conduct
landclearing, ditching, channelization,
in-stream mining, or other mechanized
excavation activity in waters of the U.S.
is likely to result in regulable discharges
of dredged material.
However, in response to comments
we received expressing concern that the
proposal would result in a shift in the
burden of proof and impose undue
burdens on project proponents to
‘‘prove a negative,’’ we have made a
number of changes to clarify that this is
not our intent and will not be a result
of this rule. Because these concerns
primarily appeared to arise out of the
proposed rule’s use of a rebuttable
presumption formulation, we have
redrafted the rule language to eliminate
use of a rebuttable presumption.
As we had explained in the proposed
rule preamble, the proposal was
intended to express our expectation that
the activities in question typically result
in regulable discharges, not to create a
formal new process or record keeping
requirements (65 FR 50113). The rule
now provides that the agencies regard
the use of mechanized earth-moving
equipment to conduct landclearing,
ditching, channelization, in-stream
mining or other earth-moving activity in
waters of the U.S. as resulting in a
discharge of dredged material unless
project-specific evidence shows that the
activity results in only incidental
fallback
By no longer employing a rebuttable
presumption, we believe it is more
evident that we are not creating a new
process or altering existing burdens
under the CWA to show a regulable
discharge of dredged material has
occurred. To make this point
unmistakably clear, we also have added
a new sentence to the rule language that
expressly provides the rule does not and
is not intended to shift any burden in
any administrative or judicial
proceeding under the CWA. In addition,
the rule language has been clarified to
make it more evident that we will not
look to project proponents alone to
provide information that only incidental
fallback results. Thus, the rule language
now refers to ‘‘project-specific evidence
show[ing] that the activity results in
only incidental fallback.’’ While this
might consist in large part of
information from project proponents,
we also will look to all available
information, such as that in agency
project files or information gained from
site visits, when determining if a
discharge of dredged material results.
We also received a number of
comments questioning how the
presumption contained in the proposed
rule might apply to particular
equipment, or asserting that the
presumption in the proposal was too
broad. We thus are clarifying in the final
rule language itself that we are
addressing mechanized ‘‘earth-moving’’
equipment (e.g., bulldozers, graders,
backhoes, bucket dredges, and the like).
Earth-moving equipment is designed to
excavate or move about large volumes of
earth, and we believe it is reasonable
and appropriate for the agencies to view
the use of such equipment in waters of
the U.S. as resulting in a discharge of
dredged material unless there is case
specific information to the contrary. The
administrative record of today’s rule
contains additional information on the
nature of this equipment and its
operation.
We received a large number of
comments, both from those opposed to
the proposed rule, as well as those
supporting the proposal (or its
strengthening), requesting us to provide
a definition of ‘‘incidental fallback.’’
The proposed rule had not done so,
instead providing preamble discussion
of the relevant case law addressing that
term, as well as referring readers to the
preamble to our earlier May 10, 1999,
rule (65 FR 50109–50110; 64 FR 25121).
Subsequent to the proposal, as many of
the commenters opposed to the proposal
noted, the court, in its decision on the
NAHB motion to compel compliance
with the AMC court’s injunction,
cautioned against parsing the AMC and
NMA language to render an overly
narrow definition of incidental fallback.
NAHB Motion Decision, slip opinion
12–14.
In light of numerous comments
requesting that a definition of incidental
fallback be included in the regulations,
and consistent with our preamble
discussions of relevant case law and the
more recent discussion in the court’s
NAHB Motion Decision, we have
provided a descriptive definition in the
final rule. That language, which is based
on the AMC and NMA, cases and the
NAHB Motion Decision, provides that:
Incidental fallback is the redeposit of small
volumes of dredged material that is
incidental to excavation activity in waters of
the United States when such material falls
back to substantially the same place as the
initial removal. Examples of incidental
fallback include soil that is disturbed when
dirt is shoveled and the back-spill that comes
off a bucket when such small volume of soil
or dirt falls into substantially the same place
from which it was initially removed.
This language is fully consistent with
the spirit and intent of those decisions.
As noted in the AMC decision,
incidental fallback involves ‘‘incidental
soil movement from excavation’’ (951
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Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
F.Supp. 270); thus the definition in
today’s rule refers to the redeposit of
small volumes of dredged material
incidental to excavation activities. (See
also NMA, 145 F.3d at 1404 (the
statutory term ‘‘addition’’ does not cover
the situation where material is removed
‘‘and a small portion of it happens to
fall back’’)). The rule language refers to
‘‘incidental fallback’’ as returning
dredged material to ‘‘substantially the
same place’’ from which it came, a
formulation consistent with the AMC
and NMA decisions. AMC, 951 F.Supp.
at 270; NMA, 145 F.3d. at 1403; see also,
NAHB Motion Decision at 13. The
examples of incidental fallback given in
the rule’s definition are drawn from the
AMC decision. See, AMC, 951 F.Supp.
at 270. We, therefore, believe the
definition reflects an objective and good
faith reading of the AMC and NMA
decisions. See, NAHB Motion Decision,
slip op. at 14.
We believe today’s rule both ensures
environmental protection consistent
with CWA authorities and increases
regulatory certainty in a manner fully
consistent with the AMC and NMA
decisions and the district court
injunction. This has been accomplished
through regulatory language that serves
to put agency staff and the regulated
community on notice that absent
information to the contrary, it is our
expectation that the use of mechanized
earth moving equipment to conduct
landclearing, ditching, channelization,
in-stream mining, or other mechanized
excavation activity in waters of the U.S.
is likely to result in discharges of
dredged material. In addition, in
response to comments, and in order to
provide a descriptive standard of what
constitutes non-regulable incidental
fallback, we have provided in the rule
a descriptive definition of that term
which we believe to be fully consistent
with an objective and good faith reading
of the AMC, NMA, and NAHB Motion
decisions.
At the same time, today’s rule is not
unnecessarily prescriptive and still
allows for the case-by-case
consideration of whether a discharge
results. In making that determination,
the agencies will consider any available
information on project plan or design, as
well as other information, such as site
visits or field observations, during and
after project execution. Information
which we will consider includes that
from project proponents, as well as
other available information.
In determining if a regulable
discharge of dredged material occurs,
we will carefully evaluate whether there
has been movement of dredged material
away from the place of initial removal.
In doing so, we will look to see if earthmoving
equipment pushes or relocates
dredged material beyond the place of
excavation, as well as whether material
is suspended or disturbed such that it is
moved by currents and resettles beyond
the place of initial removal in such
volume as to constitute other than
incidental fallback, and thus be a
regulable discharge. See e.g., United
States v. M.C.C. of Florida, 722 F.2d
1501 (11th Cir. 1985), vacated on other
grounds, 481 U.S. 1034 (1987),
readopted in relevant part on remand,
848 F.2d 1133 (11th Cir. 1988)
(resettling of material resulting from
propeller rotation onto adjacent seagrass
beds is jurisdictional). In appropriate
situations, we also will include
consideration of whether the operation
results in the release of pollutants to the
environment that were formerly
physically or chemically bound up and
sequestered from the environment prior
to the dredging or excavation of the
sediments. See e.g., United States v.
Deaton, 209 F. 3d 331 (4th Cir. 2000) at
335–336 (discussing release of
pollutants in determining sidecasting to
be jurisdictional). In considering
whether material is relocated, we will
look at both horizontal and vertical
relocation. For example, sidecasting,
which involves horizontal relocation to
the side of the ditch, is a regulable
discharge. See e.g., Deaton, supra;
NAHB Motion Decision at n. 3.
Similarly, where activities involve the
vertical relocation of the material, such
as occurs in backfilling of trenches, a
regulable discharge results. See e.g.,
(United States v. Mango, 997 F. Supp.
264, 285 (N.D.N.Y. 1998), affirmed in
part, reversed in part on other grounds,
199 F.3d 85 (2d Cir. 1999); see, Iroquois
Gas Transmission System v. FERC, 145
F.3d 398 at 402 (2nd Cir. 1998)
(backfilling of trenches is jurisdictional).
We also will take into account the
amount or volume of material that is
redeposited. Incidental fallback at issue
in AMC and NMA was the small-volume
fallback from excavation. Similarly,
today’s rule defines incidental fallback
as the ‘‘small volumes of dredged
material’’ falling back to substantially
the same place as the initial removal.
Therefore, we will consider the volume
redeposited in deciding whether the
activity results in only incidental
fallback.
Thus, the determination of whether
an activity results in a regulable
discharge of dredged material or
produces only incidental fallback
involves consideration of the location
and the amount of the redeposit.
Because of the fact-specific nature of the
assessment of these factors, and their
4553
interrelated nature, we do not believe it
to be feasible or appropriate to establish
hard and fast cut-off points for each of
these factors. Rather, the totality of the
factors will be considered in each case.
Finally, we note that the proposed
rule would have removed existing
paragraph 3(iii) from the Corps’
regulations at 33 CFR 323.2(d) and the
counterpart EPA regulation at 40 CFR
232.2. Those paragraphs contained
identical ‘‘grandfather’’ provisions for
certain activities to be completed by
August 24, 1995, and were proposed for
deletion as being outdated. 65 FR
501211. Today’s final rule, consistent
with the original proposal, removes
those paragraphs from the regulations.
III. Discussion of Comments
A. Legality of Proposal
1. Proposal as Inconsistent With NMA
and Ruling on NAHB Motion to Compel
A number of commenters contended
that the proposed rule conflicts with the
rulings of the courts in AMC, NMA, and
the NAHB Motion Decision. Among
other things, they characterized the rule
as an ‘‘end-run’’ around the nationwide
injunction affirmed in NMA; ‘‘an
attempt to re-promulgate [the 1993
Tulloch Rule];’’ and an effort to regulate
the activities that the NMA court said
were not regulable. In particular, these
commenters characterized the NMA
decision as holding that regulating any
redeposit of dredged material during
removal activities outruns the section
404 provisions of the CWA and that the
agencies may only regulate activities
that cause a net addition to waters of the
U.S. They then argued that the rule is
at odds with that holding. In addition,
they asserted that the presumption
would result in regulating effects as
opposed to discharges and would make
all excavation and landclearing
activities regulated. Several commenters
also noted that using a presumption
does not address the NMA court’s
instruction that the agencies attempt to
draw a bright line between what is a
regulable redeposit versus non regulated
incidental fallback.
As discussed in more detail in the
sections below, we believe that the
changes that we have made in today’s
rule address such concerns. Moreover,
we do not agree with the legal analysis
in many of the comments. In a number
of respects, we believe the commenters
have simply read the NMA decision too
broadly. The court in NMA stated:
‘‘[W]e do not hold that the Corps may
not legally regulate some forms of
redeposit under its section 404
permitting authority. We hold only that
by asserting jurisdiction over ‘any
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4554 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
redeposit,’ including incidental fallback,
the Tulloch Rule outruns the Corps’
statutory authority.’’ 145 F. 3d at 1405.
Thus, the court explicitly recognized
that some redeposits are regulable and
indicated that the agencies’ attempt to
draw a line between incidental fallback
and regulable redeposits would be
entitled to deference. The court also
acknowledged that sidecasting, the
placement of removed soil in a wetland
some distance from the point of
removal, has always been regulated by
the agencies; and finally, it recognized
that removal of dirt and gravel from a
streambed and its subsequent redeposit
in the waterway after segregation of
minerals constitutes an addition.
The court’s acceptance of these
principles undercuts the conclusion
suggested by some that its statement
that ‘‘incidental fallback represents a net
withdrawal, not an addition’’ must be
read to mean that activities that involve
removal of material can never constitute
a discharge. Similarly, the court’s
statement that ‘‘Congress could not have
contemplated that the attempted
removal of 100 tons [of dredged spoil]
could constitute an addition simply
because only 99 tons were actually
taken away’’ must also be reconciled
with the court’s clear recognition that
some redeposits constitute an addition.
In addition, the Court’s NAHB Motion
Decision supports the agencies’ view
that a more narrow reading of the NMA
decision than some commenters are
advocating is correct. The court stated:
Inasmuch as this Court in AMC, and the
Court of Appeals in NMA, invalidated the
Tulloch Rule because it regulated incidental
fallback, the Court’s order enjoining the
agencies from applying or enforcing the
Tulloch Rule must be understood to bar the
agencies from regulating incidental fallback
[footnote omitted] * * * The May 10th Rule
is facially consistent with the Court’s
injunction because it eliminates § 404
jurisdiction over incidental fallback, and
removes the language asserting jurisdiction
over ‘‘any’’ redeposit of dredged material.
The rule makes clear that the agencies may
not exercise § 404 jurisdiction over
redeposits of dredged material to the extent
that the redeposits involve only incidental
fallback [citation omitted] (emphasis added).
Court’s Denial of Motion to Compel, at
9–10.
Thus, the sweeping claims that ‘‘any
redeposit’’ and all removal activities are
beyond the scope of the CWA can not
be substantiated based on NMA or other
existing law. Today’s rule provides a
definition of ‘‘incidental fallback’’ that
adheres to the judicial guidance
provided in the AMC and NMA cases
and the NAHB Motion Decision, while
making clear to the public the types of
activities that we believe are properly
regulated.
a. Excavation not covered. The
contention that excavation and other
removal activities can never be
regulated fails to recognize that
‘‘discharges of pollutants’’ can occur
during removal activities even where
the ultimate goal is withdrawal of
material. That the CWA definition of
‘‘pollutants’’ does not include
‘‘incidental fallback from dredging
operations’’ is of no significance,
contrary to the suggestion of one
commenter, because it does include
‘‘dredged spoil.’’ Several commenters
referenced dictionary definitions of
‘‘excavate’’ and ‘‘discharge’’ to buttress
their view that a removal activity can
not involve a discharge. One
commenter, in particular, argued that
‘‘discharge’’ denotes an intentional act,
and that redeposits from excavation
activity may not be regulated because
they do not involve an intentional act.
These definitions, however, do not
indicate whether, in a given situation,
pollutants were added to waters of the
U.S. within the meaning of the CWA,
the only issue we are concerned with
here. First, as indicated in section III. A.
4 of this preamble, there is no support
under the CWA for the position that a
discharge must be an intentional act. In
addition, as indicated in the preamble to
the proposed rule, as a general matter,
excavation and other earth-moving
activities that are undertaken using
mechanized earth-moving equipment
typically result in the addition of a
pollutant to navigable waters because
the nature of such equipment is to move
large volumes of material within and
around the excavation site.
The court in NMA also recognized
that redeposits associated with earthmoving
activities could be regulated.
(‘‘But we do not hold that the Corps may
not legally regulate some forms of
redeposit under its section 404
permitting authority.’’ 145 F. 3d at
1405.). As described in the preamble to
the proposed rule, the machinery used
for excavation, mechanized
landclearing, and other removal
activities generally results in substantial
soil movement beyond the area from
which the material is being removed
(See also section III D of today’s
preamble). This substantial soil
movement and distribution of material
makes the situations involving
mechanized earth-moving equipment
akin to the numerous cases in which the
courts have found that the redeposit of
material constituted the discharge of a
pollutant. See e.g., Avoyelles
Sportsmen’s League v. Marsh, 715 F. 2d
897, 923 (5th Cir. 1983)(recognized that
the term ‘‘discharge’’ covers the
redepositing of materials taken from
wetlands); United States v. Mango, 997
F. Supp. 264, 285 (N.D.N.Y. 1998),
affirmed in part, reversed in part on
other grounds, 199 F. 3d 85 (2d Cir.
1999)(found that backfilling of trenches
with excavated material was a
discharge); United States v. M.C.C. of
Florida, Inc., 772 F. 2d 1501 (11th Cir.
1985)(holding that redeposition of
seabed materials resulting from
propeller rotation onto adjacent sea
grass beds was an ‘‘addition’’ of dredged
spoil); Slinger Drainage Inc., CWA
Appeal No. 98–10 (EPA Environmental
Appeals Board Decision (EAB)(holding
that backfilling by a Hoes trenching
machine is a regulable discharge of
dredged material, not incidental
fallback)(appeal pending); United States
v. Deaton, 209 F. 3d 331 (4th Cir.
2000)(holding that sidecasting is a
regulated discharge); see also United
States v. Huebner, 752 F. 2d 1235 (7th
Cir.), cert denied, 474 U.S. 817 (1985)
(sidecasting materials along a ditch and
then using a bulldozer to spread
material over several acres constituted a
discharge of dredged material).
We do recognize, however, that some
excavation activities by using
specialized techniques or precautions
may be conducted in such a manner that
no discharge of dredged material in fact
occurs. Today’s rule specifically
provides for consideration of projectspecific
information as to whether only
incidental fallback results in
determining jurisdiction under section
404. For example, we acknowledge that
some suction dredging operations can
be conducted in such a manner that if
the excavated material is pumped to an
upland location or other container
outside waters of the U.S. and the
mechanized removal activity takes place
without re-suspending and relocating
sediment downstream, then such
operations generally would not be
regulated. Other examples of activities
that would generally not be regulated
include discing, harrowing, and
harvesting where soil is stirred, cut, or
turned over to prepare for planting of
crops. These practices involve only
minor redistribution of soil, rock, sand,
or other surface materials. The use of K–
G blades and other forms of vegetation
cutting such as bush hogging or mowing
that cut vegetation above the soil line do
not involve a discharge of dredged
material.
b. Too narrow reading of ‘‘incidental
fallback’’. Several commenters
incorrectly equate ‘‘incidental fallback’’
with all dredged spoil that is
redeposited in regulated waters as a
result of activities using mechanized
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Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
equipment. As indicated, the NMA
court made it clear that regulable
redeposits could be associated with
such activities and, to the extent that
they were, the NMA decision did not
preclude regulation. Today’s rule
explicitly excludes incidental fallback
from the definition of discharge of
dredged material. First, it does not alter
the May 10, 1999, amendment to the
definition of ‘‘discharge of dredged
material,’’ which explicitly excluded
incidental fallback from the definition.
In addition, today’s rule provides for the
consideration of project-specific
evidence which shows that only
incidental fallback results from the
activity. Thus, we have taken the
necessary steps to ensure that we do not
regulate ‘‘incidental fallback’’ when it is
the only material redeposited during
certain removal activities. The Court’s
NAHB Motion Decision found our May
10, 1999, amendment consistent with
the injunction in the NMA case, and
today’s rule does not change or alter the
underlying provisions of that rule.
Nevertheless, several commenters
have argued that the agencies are
interpreting ‘‘incidental fallback’’ too
narrowly and have not heeded language
in the Court’s NAHB Motion Decision
that cautioned against applying a too
narrow definition of incidental fallback
that would be inconsistent with an
objective and good faith reading of the
AMC and NMA decisions. Today’s rule,
however, is entirely consistent with that
order and the decisions in AMC and
NMA. First, commenters are incorrect
that we have construed the meaning of
‘‘incidental fallback’’ too narrowly
because, in formulating the definition in
today’s regulation, we were guided by
the descriptions of incidental fallback in
the judicial opinions. The NMA
decision indicates that incidental
fallback ‘‘ * * * returns dredged
material virtually to the spot from
which it came.’’ 145 F. 3d at 1403. It
also describes incidental fallback as
occurring ‘‘when redeposit takes place
in substantially the same spot as the
initial removal.’’ 145 F. 3d at 1401.
Similarly, the District Court described
incidental fallback as ‘‘the incidental
soil movement from excavation, such as
the soil that is disturbed when dirt is
shoveled, or the back-spill that comes
off a bucket and falls back into the same
place from which it was removed.’’ 951
F. Supp. at 270. We believe that
adopting a definition that relies heavily
on the judicial formulations of
‘‘incidental fallback’’ will ensure
consistency with those opinions as well
as help project proponents understand
the agencies’ view of ‘‘incidental
fallback.’’ We disagree strongly with
commenters who suggested that we are
trying to inappropriately parse the
language of the AMC and NMA
decisions, and believe that our
definition of ‘‘incidental fallback’’ is
based upon a good faith interpretation
of those rulings. See section II C of
today’s preamble for additional
discussion of this issue.
Nevertheless, as discussed in section
III E of today’s preamble, we did not
adopt a definition of incidental fallback
that would turn on whether the material
was redeposited to ‘‘the same general
area’’ from which it was removed. We
believe this formulation could
potentially be read to mean that
incidental fallback would include any
dredged material redeposited in the
same overall site where excavation
occurred, as opposed to the place of
initial removal. We believe such a broad
formulation would not adequately
recognize court decisions that have
found a regulable discharge where
redeposits have occurred even though
only a short distance from the removal
point. See, e.g., Deaton, Mango, etc.
Moreover, contrary to one
commenter’s contentions, today’s rule is
not inconsistent with the approach
taken by the agencies in the 1997
Tulloch Guidance (‘‘Corps of Engineers/
Environmental Protection Agency
Guidance Regarding Regulation of
Certain Activities in Light of American
Mining Congress v. Corps of Engineers,’’
April 11, 1997) (‘‘1997 Guidance’’). The
commenter pointed to language in the
1997 Guidance stating that if there is
‘‘movement of substantial amounts of
dredged material from one location to
another in waters of the United States
(i.e., the material does not merely fall
back at the point of excavation), then
the regulation of that activity is not
affected by the Court’s decision.’’
Pointing to that language, the
commenter went on to assert the 1997
Guidance meant that unless ‘‘substantial
amounts’’ of dredged material were
moved, then no discharge occurs, and
concluded from this that the proposed
rule was inconsistent with the 1997
Guidance. In response, we do not
believe the 1997 Guidance can be
properly read to support the
commenter’s conclusions. The language
quoted by the commenter comes from a
portion of the guidance under the
section header ‘‘Types of Discharge Not
Addressed by Court Decision.’’ In
addition, it simply provides guidance to
field personnel that where an activity
results in movement of substantial
volumes of dredged material, regulation
of the activity is unaffected by the
court’s decision. The 1997 Guidance
4555
thus does not mean we interpreted the
AMC or NMA decisions to allow
regulation only if relocation of
substantial amounts of dredged material
takes place. In fact, the 1997 Guidance
provides at page 3 that: ‘‘The Court’s
decision only has implications for a
particular subset of discharges of
dredged material, i.e., those activities
where the only discharges to waters of
the U.S. are the relatively small volume
discharges described by the Court as
‘‘incidental fallback * * *’’ (emphasis
added). Nothing in today’s rule is
inconsistent with the 1997 Guidance.
The preamble to the proposed rule
clearly recognized that there can be
situations where due to the nature of the
equipment used and its method of
operation, a redeposit may consist of
material limited to ‘‘incidental
fallback.’’ In addition, that preamble
recognized (as do the regulations at 33
CFR 323.2(d)(2)(ii) and 40 CFR 232.2),
for example, that the use of equipment
to cut trees above the roots that does not
disturb the root system would not
involve a discharge. Moreover, as
discussed in section II C of today’s
preamble, we have modified today’s
final rule to make it even more clear that
project-specific information may be
used to demonstrate that only
‘‘incidental fallback’’ will result. Despite
the discussion in the proposed rule’s
preamble, some commenters contended
that we were overreaching. We believe
that the language changes reflected in
today’s rule as well as the discussion in
today’s preamble clarify that redeposits
associated with the use of mechanized
earth-moving equipment will only be
regulated if more than incidental
fallback is involved, while making clear
our view that activities involving
mechanized earth-moving equipment
typically result in more than incidental
fallback. Where the redeposits are
limited to incidental fallback, they
would not be regulated.
c. Covers same activities as 1993
Tulloch Rule. A number of commenters
argued that the proposed rule was an
improper attempt to circumvent the
NMA decisions and reinstate the
invalidated 1993 Tulloch Rule. They
contended that the agencies relied on no
new information in developing this rule
and that large segments of the proposed
rule appeared in, and were used to
justify, the 1993 Rule. Moreover, as
opposed to narrowing the definition of
‘‘discharge of dredged material’’ as
instructed by the courts, several argued
that the proposed rule simply swept in
the same activities and created a vague
and impossible standard for rebutting
the presumption. Several asserted that
the agencies made no attempt to create
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4556 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
a ‘‘brightline’’ distinction between
incidental fallback and regulable
redeposits as encouraged by the courts
and instead, simply shifted the burden
to the regulated community. The end
result, they argued, would be that the
agencies would regulate activities that
are not appropriately within the scope
of the CWA, because, among other
reasons, people lack the resources,
wherewithal, or information to rebut the
presumption.
The changes that we have made in the
rule language further clarify the
distinctions between our approach
today and the 1993 Tulloch Rule. We
believe that today’s rule reflects
important differences with the 1993
Tulloch Rule that make our action
consistent with the NMA rulings. First,
as discussed previously in this
preamble, today’s amendments along
with those made on May 10, 1999,
explicitly and repeatedly exclude
incidental fallback from the definition
of ‘‘discharge of dredged material.’’
Today’s rule also provides a descriptive
definition of incidental fallback and
explicitly indicates that project-specific
evidence may be used to show that only
incidental fallback will result from the
activity. These provisions are a direct
response to the NMA rulings and to the
comments that we received. In contrast,
the relevant sections of the 1993
Tulloch Rule included any redeposit,
including redeposits consisting of only
incidental fallback.
Similarly, contrary to the suggestion
of one commenter, the rebuttable
presumption would not have recast in
different legal language the central
hypothesis of the Tulloch Rule that
every redeposit of dredged material was
a discharge subject to regulation under
section 404. The commenter referenced
language from the 1993 Preamble stating
that it is ‘‘virtually impossible to
conduct mechanized landclearing,
ditching, channelization or excavation
in waters of the United States without
causing incidental redeposition of
dredged material (however small or
temporary) in the process.’’ 58 FR at
45017. In contrast, the position that we
are taking today does not cast the
jurisdictional net so broadly. Both the
rebuttable presumption in the proposal
and today’s rule are more narrow in
scope because we are not regulating
incidental fallback. As discussed in the
previous paragraph, the regulations
defining the discharge of dredged
material were amended on May 10,
1999, to make clear that incidental
fallback is not encompassed within that
definition and today’s rule does not
alter that exclusion.
Second, some commenters claimed
that the rebuttable presumption that was
in the proposed rule is the same as the
de minimis exception that was added to
the regulations as part of the 1993
Tulloch Rule and continues to be a part
of the definition of discharge of dredged
material today. 33 CFR 323.2(d)(3); 40
CFR 232.2. We believe that this
comment misunderstands the
relationship between today’s rule and
the de minimis exception contained in
the 1993 Tulloch Rule. We have not
reopened in this rulemaking the de
minimis exception from the 1993 rule,
since that provision is irrelevant to
determining whether an activity results
in a discharge of dredged material. As
promulgated in the 1993 rule, the de
minimis exception provides that section
404 authorization is not required for the
incidental addition of dredged material
associated with an activity that would
not destroy or degrade a water of the
U.S. Under the 1993 rule, mechanized
landclearing, ditching, channelization,
or other excavation activity that results
in a redeposit into waters of the U.S.
were presumed to destroy or degrade
waters of the U.S., unless the project
proponent demonstrated prior to
proceeding with the activity that it
would not cause such effects. 33 CFR
323.2(d)(3); 40 CFR 232.2. Thus, the de
minimis exception in the existing
regulations and its associated
presumption address the issue of
whether otherwise regulable discharges
are excluded from section 404
authorization because of minimal effects
on the environment, and does not, as
some commenters suggested, serve as a
means of asserting authority over
activities outside our jurisdiction based
on the effects of activities.
By contrast, today’s rule addresses the
issue of whether a regulable discharge of
dredged material is even involved.
Today’s rule does not eliminate the
requirement for a ‘‘discharge.’’ Instead it
reflects the agencies’ view that regulable
discharges generally are expected to
occur when certain activities using
mechanized earth-moving equipment
are undertaken. The proposed rule
described this view in terms of a
presumption but allowed project
proponents to demonstrate that their
activities caused only incidental
fallback, which is beyond section 404
jurisdiction. Today’s rule does not use
the words ‘‘presumption’’ or ‘‘presume’’
to avoid any misunderstanding that we
are attempting to shift CWA burdens to
the project proponent. If the activity
involves only incidental fallback, it
would not be regulated regardless of the
level of associated environmental
impact because the statutory
prerequisite of a discharge has not
occurred. Moreover, unlike the
treatment of mechanized activities when
attempting to qualify for the de minimis
exception, neither the proposed nor
final rules require that the project
proponent affirmatively demonstrate to
the agencies that no discharge will
occur prior to proceeding with his
activities. Thus, the de minimis
exception and today’s rule serve
different purposes and operate
differently within the context of the
regulation and for that reason the de
minimis exception was not reopened as
part of this rulemaking.
In addition, one commenter charged
that by adopting a rebuttable
presumption similar to the one
proposed in the 1992 proposal but that
was dropped prior to final promulgation
in 1993, the agencies make clear their
intent to sweep into regulation specific
activities rather than determine actual
discharges. In response, we note that the
1992 proposal actually contained an
irrebutable presumption that was more
inclusive than what we promulgated in
the 1993 Tulloch Rule and than either
the proposed or final rules we are
addressing today. In fact, contrary to the
sentiment expressed in the comment,
the allowance for project-specific
evidence that the activity results in only
incidental fallback reflects our effort to
restrict regulation to only regulable
discharges.
We do not believe that it is of any
significance that there is overlap
between the activities addressed by
today’s rule and the 1993 Tulloch Rule.
The NMA court did not find that all
activities potentially encompassed by
that rule were beyond the scope of the
CWA, but rather that incidental fallback
was excluded. NAHB Motion Decision.
Thus, it is no surprise that the two rules
address some of the same activities.
d. Improperly relies on an ‘‘effects’’
test. Several commenters argued that the
proposed rule improperly relies on the
broad goals of the CWA and an ‘‘effects
test’’ as the basis for establishing
jurisdiction. They contended that this
approach is inconsistent with the NMArelated
decisions and with other cases
addressing the basis for jurisdiction
under the CWA. They stated further that
the CWA was not intended to provide
comprehensive protection for wetlands.
We believe that the commenters
misunderstood the purpose and effect of
the proposal, as well as have misread
the conclusions in the NAHB Motion
Decision about an effects based test of
jurisdiction.
First, the agencies agree that the CWA
regulates ‘‘discharges’’ and today’s rule
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in no way establishes an effects-based
test for asserting CWA jurisdiction. As
was indicated in the proposal, the
presence of a ‘‘discharge’’ of dredged or
fill material into waters of the U.S. is a
prerequisite to jurisdiction under
section 404. The purpose of this rule is
to provide further clarification of what
constitutes a ‘‘discharge of dredged
material.’’ As indicated, we regard the
use of mechanized earth-moving
equipment to conduct landclearing,
ditching, channelization, in-stream
mining or other earth-moving activity in
waters of the U.S. as resulting in a
discharge of dredged material unless
there is project-specific information to
the contrary. Thus, although significant
adverse environmental effects can result
from activities undertaken using
mechanized earth-moving equipment,
the jurisdictional basis is the presence
of regulable discharges.
To the extent these comments are
addressing the de minimis exception
contained in the 1993 rule, the
comments are outside the scope of this
rulemaking because we have not
reconsidered that provision here. We
note that the continued operation of this
existing regulatory provision is
consistent with AMC and NMA. The
NAHB Motion Decision affirmatively
rejected the position that ‘‘the Court’s
injunction must be understood to bar
application and enforcement of the
effects-based test of jurisdiction * * *
because the Court also rejected this
component of the Tulloch Rule * * *
[citation omitted.]’’ The Court stated :
The Court rejected this test because the
agencies were using it to assert jurisdiction
over otherwise non-regulable activities; the
Court expressly did not determine whether
the effects-based test of jurisdiction would be
valid if applied to activities that otherwise
come within the scope of the Act. [citation
omitted] Thus, where the effects-based test is
not applied to otherwise non-regulable
activities under the Act (such as incidental
fallback), the Court’s injunction does not bar
its application.
NAHB Motion Decision, n. 8.
Likewise today’s rule is not in conflict
with the Slinger decision as asserted by
one of the commenters. In Slinger
Drainage, Inc., EPA’s Environmental
Appeals Board affirmed EPA’s general
view that ‘‘ the pivotal consideration for
purposes of deciding whether an
individual activity is or is not subject to
the section 404 permitting requirement
is whether a discharge of dredged
material takes place.’’ In re: Slinger
Drainage, Inc., CWA Appeal No. 98–10
(September 29, 1999)(slip opinion), at
19. Notably, the EPA Environmental
Appeals Board also stated in that
opinion that the requirement for a
discharge ‘‘is not to say that the ‘effects’
of a particular activity are of no concern.
In a broad sense effects are the driving
force behind the entire regulatory
scheme to protect wetlands.’’ Id.
Finally, one commenter suggested
that discussions in the proposed rule’s
preamble concerning the release of
contaminants in the water column
indicate that the agencies ‘‘base their
finding of jurisdiction on analysis of the
effects of the mechanized landclearing,
ditching, or other activity.’’ This is
incorrect. Rather than being regulated
based on the effect on water quality, as
discussed in section III D of today’s
preamble, the transport of dredged
material downstream or the release of
previously bound-up or sequestered
pollutants (which are in and part of the
dredged material) may constitute a
discharge, not by virtue of associated
environmental impacts, but by virtue of
being added to a new location in waters
of the U.S. In evaluating whether
suspension or downstream transport
results in a regulable discharge or only
incidental fallback, we would consider
the nature and amount of such
suspension and transport.
e. Inconsistency with District Court
‘‘specified disposal site’’ rationale.
Several commenters contended that
today’s rule ignores the AMC court’s
analysis of ‘‘specified disposal sites.’’
We do not see today’s rule as
inconsistent with this aspect of the
court’s decision. The court in AMC held
that, even if the term ‘‘addition of a
pollutant’’ were broad enough to cover
incidental fallback, the language
‘‘specified disposal sites’’ in section
404(a) would have led the court to the
same holding. Because today’s rule does
not regulate incidental fallback, it is
entirely consistent with this aspect of
the court’s opinion. Moreover, the
court’s reasoning in AMC was that the
1993 rule effectively made all
excavation sites into disposal sites,
rendering the statutory language ‘‘at
specified disposal sites’’ superfluous.
Today’s rule does not render the
statutory language superfluous because
we are only asserting jurisdiction over
redeposits that occur outside the place
of initial removal.
2. Proposal as Inconsistent With the
CWA
Several other claims were made that
today’s rule is not consistent with the
CWA. Those claims included several
pronouncements that the CWA only
regulates discharges and that the
legislative history demonstrates that
Congress did not intend the CWA to
regulate minor discharges associated
with dredging, mechanized
4557
landclearing, excavation, ditching,
channelization, and other de minimis
discharges. One commenter disagreed
with the proposition that section
404(f)(2) supports the proposed rule
because it reflects Congressional
recognition that these activities result in
discharges. This commenter cited an
excerpt from the NMA court decision—
that the court was ‘‘reluctant to draw
any inference [from section 404(f)] other
than that Congress emphatically did not
want the law to impede these bucolic
pursuits’’—to support his assertion.
Moreover, one commenter argued that
the lack of a specific reference to
excavation activities in the CWA is
further evidence that small-volume,
incidental deposits accompanying
landclearing and excavation activities
were not intended to be covered under
section 404. Several commenters also
contended that the CWA does not
require a person to make a prima facie
showing that activities are exempt from
regulation under the Act and the
agencies can not administratively
impose this requirement.
As discussed in section III A d, we
recognize that the statute and legislative
history require a discharge for the
requirements of the CWA to apply. The
definition of discharge of dredged
material contained in today’s rule is,
therefore, grounded on the statutory
term ‘‘discharge of a pollutant’’
contained in section 502(12) of the Act
and relevant court decisions that have
construed the discharge requirement.
We think, however, that some
commenters’ assertion that legislative
intent mandates a broad construction of
the term ‘‘incidental fallback’’ finds no
support either in section 502(12)
(defining ‘‘discharge of a pollutant’’ to
include ‘‘any addition of any pollutant’’
(emphasis added)) or section 404(f). We
do not agree that the 1972 and 1977
legislative histories generally indicate
that Congress did not intend to regulate
minor discharges resulting from certain
activities, including excavation. To the
contrary, while Congress was focused
on preserving the Corps’ autonomy with
respect to navigational dredging, it is
clearly over-reading the history to
suggest that other types of removal
activities implicitly were contemplated
and rejected by the choice of words
such as ‘‘discharge,’’ ‘‘pollutant,’’
‘‘dredge spoil,’’ or ‘‘disposal sites,’’ as
one commenter suggested.
Moreover, the treatment of incidental
discharges in the 1977 Act helps
illustrate Congress’ view of these types
of discharges. The 404(f) exemption was
necessary because Congress recognized
that, absent an exemption, regulation of
discharges ‘‘incidental to’’ certain
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activities was encompassed within
section 404 under certain
circumstances. There is no support in
the Act or legislative history for
concluding that so-called ‘‘minor’’
discharges associated with excavation
were intended by Congress to be
categorically excluded from the Act. In
fact, the very use of the word
‘‘incidental’’ in section 404(f)(2)
suggests just the opposite. Incidental is
defined as: ‘‘1. being likely to ensue as
a chance or minor consequence; 2.
occurring merely by chance or without
intention or calculation’’ (Miriam-
Webster’s Collegiate Dictionary (10th
Ed., 1998)); ‘‘1. occurring or likely to
occur as an unpredictable or minor
accompaniment; 2. of a minor, casual, or
subordinate nature’’ (American Heritage
Dictionary of the English Language; 4th
Ed.); ‘‘happening or likely to happen in
an unplanned or subordinate
conjunction with something else’’
(Random House Dictionary of the
English Language (2d Ed. 1987)). Thus,
the use of the word ‘‘incidental’’ in
section 404(f)(2) belies the notion that
the Act mandates a broad interpretation
of incidental fallback.
Senator Muskie, the sponsor of the
1977 CWA amendment, addressed the
section 404(f) exemptions as follows:
404(f) provides that Federal permits will
not be required for those narrowly defined
activities that cause little or no adverse
effects either individually or cumulatively.
While it is understood that some of these
activities may result in incidental filling and
minor harm to aquatic resources, the
exemptions do not apply to discharges that
convert extensive areas of water into dry land
or impede circulation or reduce the reach or
size of the water body. 3 A Legislative
History of the Clean Water Act of 1977, 95th
Cong., 2d Sess., Ser. No. 95–14 (1978), at 474.
Thus, the Legislative History does not
support the commenters’ point.
In addition, we have clarified the rule
in response to commenters who argued
that the proposal was at odds with the
CWA because the Act does not
specifically require a discharger to make
a prima facie case that its activities are
exempt from the permit requirements.
The revised language in today’s rule
clarifies that we are not requiring that a
project proponent make a prima facie
case as to the absence of jurisdiction.
Today’s rule sets forth the agencies’
view that the use of mechanized earthmoving
equipment in waters of the U.S.
results in a discharge of dredged
material unless there is evidence that
only incidental fallback results, but
expressly provides that the rule does not
shift any burdens in administrative or
judicial proceedings. This is fully
consistent with the Act. See section III
B of today’s preamble for further
discussion.
Some commenters have argued that
because the regulatory definition of
discharge of dredged material is broad,
the presumption is unreasonable and
cannot be refuted. As indicated in
section II C of today’s preamble, we
have removed the presumption language
and added a descriptive definition of
incidental fallback, and also have
clarified that the regulation does not
shift any burden in any administrative
or judicial proceeding under the CWA.
We believe the definition mirrors the
reach of the statute as interpreted by the
courts and, therefore, is not
unreasonable. As discussed in section
III 1 b, we recognize that there will be
situations when the project-specific
information indicates that only
incidental fallback results from the
activity and thus it would not be
regulated.
3. Proposal as Misreading Applicable
Case Law
A number of commenters claimed that
we have misread and are misapplying
many of the cases we cited in support
of today’s action. Most of these
comments addressed our analysis of the
cases relating to what is a regulable
discharge. We do not believe that we are
unfairly reading the major cases in this
area.
From these cases, we know that the
following factors are relevant to
determining regulable redeposits:
quantity of material redeposited
(Avoyelles and Slinger involved
substantial quantities of redeposition);
nature and type of relocation (redeposits
adjacent to the removal area or
backfilling are generally regulated, see
Deaton, Mango, M.C.C. of Florida and
Slinger); redeposit after some processing
of material (Rybachek v. EPA, 904 F.2d
1276 (9th Cir. 1990)). As discussed in
section II C of today’s preamble, an
assessment of such factors from the
relevant cases will assist in determining
whether a regulable redeposit takes
place. We believe that in most
situations, when applying the factors
reflected in the cases, earth-moving
activities undertaken using mechanized
earth-moving equipment result in a
discharge. Today’s rule reflects that
view while allowing evidence that only
incidental fallback will result from the
activity to preclude regulation.
Several commenters noted
distinguishing facts that they believe
undermine our reliance on some of the
cases we cited. For example, several
commenters noted that Avoyelles
addresses the ‘‘discharge of fill
material’’ not the ‘‘discharge of dredged
material’’ and stated that our reliance on
that case is misplaced. However,
Avoyelles addresses the issue of what is
an ‘‘addition,’’ an analysis relevant for
both the discharge of fill and the
discharge of dredged material. Its
conclusion that the redeposit of material
constitutes a ‘‘discharge’’ thus is
relevant to today’s rule. Moreover, the
court in Deaton, citing Avoyelles among
other cases, noted that its understanding
of the word ‘‘addition’’ as including
redeposits was the same as nearly every
other Circuit Court to consider the
addition question. Deaton involved the
‘‘discharge of dredged material;’’ thus,
we do not believe it is appropriate to
reject Avoyelles because the court only
expressly addressed how that activity
involved a discharge of ‘‘fill.’’
Similar distinguishing facts or other
purported problems were asserted with
respect to other cases. For example, one
commenter argued that we cited Bay-
Houston Towing Company as if the
court had ruled that ‘‘temporary
stockpiling of peat in a wetland is a
regulable discharge.’’ In fact, the
parenthetical in the preamble for Bay-
Houston accurately reflects the court’s
determination that the activities at issue
were subject to regulation (‘‘Spreading
the sidecasted bog material from the
side of the ditch into the bog for future
harvest * * * involves relocating the
bog materials * * * for a period of time
varying from ‘a few hours’ to ‘a few
days’’’ or more. * * * Thus, while there
may be something a step further than
‘incidental fallback’ which would fall
outside of the government’s jurisdiction,
Bay-Houston’s harvesting activities are
not it.’’) Bay-Houston Towing Company,
No. 98–73252 (E.D. Mich. 2000)(slip
opinion) at 8—9. We believe that the
cases that we referenced in the proposed
and final rule preambles support our
action.
Finally, one commenter argued that
our discussion of the effects of toxic
releases from redeposited material does
not justify our attempt to regulate
activities that are beyond the scope of
the CWA. As we noted in our discussion
of the comments concerning the use of
an effects based test to establish
jurisdiction (see section III A 1 d of
today’s preamble), today’s rule does not
attempt to regulate activities beyond the
scope of the CWA or base our
jurisdiction on effects. We are only
asserting jurisdiction over redeposits of
dredged material that meet the statutory
requirement of a ‘‘discharge.’’
4. Proposal as Complying With
Applicable Law
Several other commenters asserted
their view that the proposal was
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consistent with the court’s decision in
NMA. They noted that the proposal
reflected the concept expressed in AMC
and NMA of ‘‘incidental fallback.’’ They
also noted that the proposal does not
regulate incidental fallback, but rather
other types of redeposits that exceed
incidental fallback. These commenters
pointed out that the NMA court
explicitly declined to hold that the
Corps may not legally regulate some
forms of redeposit under section 404.
For these reasons, the commenters
stressed that the proposal fully
complied with the NMA decision and
nationwide injunction. As discussed in
section II C of today’s preamble, we
agree that today’s rule is consistent with
AMC and NMA because, among other
things, it retains the exclusion of
incidental fallback from the definition
of discharge of dredged material.
One commenter described the
proposal as consistent with NMA, even
though the proposal may regulate small
or unintentional redeposits of dredged
material. The commenter argued that
NMA is misinterpreted when described
as standing for the proposition that the
word ‘‘incidental’’ in incidental fallback
means that no regulable discharge
results if only small amounts of material
are moved, or material is moved simply
as an unintentional consequence of
other activity. The commenter stressed
that the CWA prohibits the discharge of
‘‘any pollutant’’ not in accordance with
a permit, not merely a specific quantity
of pollutants. A focus on some concept
of ‘‘significant’’ quantity of pollutants
by weight, the commenter emphasized,
makes no statutory or ecological sense
because dredged spoil contains not only
inert sediment but also small chemical
constituents with potentially large
environmental impacts. The commenter
also noted that the CWA at no point
suggests an added requirement that
discharges be intentional.
We agree that neither NMA nor the
CWA establishes a quantity threshold
triggering the permit requirement, but
instead regulate any addition of any
pollutant which, in the case of dredged
material, consists of the dirt, soil or rock
that is dredged, including any biological
or chemical constituents contained in
the dirt, soil or rock. However, the
amount of redeposit is a factor that we
believe should be considered in
determining if a redeposit constitutes
more than incidental fallback. We note
that under AMC and NMA incidental
fallback involves small volume
discharges returned to substantially the
same place as the initial removal. We
also agree that, under these decisions,
incidental fallback does not extend to
covering all material that may be
incidentally redeposited in the course of
excavation activities. Simply because a
redeposit of dredged material may be
unintended does not mean it is not a
discharge, since the CWA requires a
permit for any addition of a pollutant
into waters of the U.S., regardless of the
intent of discharger. The broad
interpretation of NMA urged by other
commenters would elevate intent to
overarching status in discerning
whether an addition has occurred, a
result we do not believe appropriate or
justified under the CWA scheme. This
suggested interpretation would also blur
any meaningful distinction between
incidental fallback and regulable
discharges because it would effectively
remove the term ‘‘fallback’’ from EPA’s
regulation. In our view, to constitute
‘‘incidental fallback,’’ a redeposit
logically must be both ‘‘incidental’’ (i.e.,
a minor, subordinate consequence of an
activity) and ‘‘fallback’’ (i.e., in
substantially the same place as the
initial removal). Neither AMC nor NMA
compels us to expand the concept of
‘‘incidental fallback’’ to include all
‘‘incidental redeposits’’ without regard
to the volume or location of the
redeposit, and we decline to do so for
the reasons stated above.
A number of commenters suggested
that the agencies should find guidance
not only from the AMC and NMA
decisions, but also from other court
decisions discussing the discharge of
dredged material. In particular, the
commenters argued that the ‘‘net
addition’’ approach in NMA has been
explicitly rejected in Deaton and
implicitly rejected by many others. Two
commenters quoted Deaton to stress
that: ‘‘* * *[t]he idea that there could
be an addition of a pollutant without an
addition of material seems to us entirely
unremarkable, at least when an activity
transforms some material from a
nonpollutant into a pollutant * * *’’
and that ‘‘[i]t is of no consequence that
what is now dredged spoil was
previously present on the same property
in the less threatening form of dirt and
vegetation in an undisturbed state.’’ 209
F.3d at 335–36. Based on Deaton,
several commenters believed there is
ample support for a rule considering the
redeposit of dredged material outside
the place of initial removal as
constituting an addition of dredged
material. The commenters also noted
that such an approach is consistent with
the numerous other courts that have
concluded that moving around dredged
material within the same water body
requires a permit. See, e.g., U.S. v.
Brace, 41 F. 3d 117, 122 (3d Cir.), cert.
denied, 515 U.S. 1158 (1994) (Clearing,
4559
churning, mulching, leveling, grading,
and landclearing of the formerly
wooded and vegetated site was a
discharge of a dredged spoil that under
the specific facts did not qualify for the
404(f)(1) farming exemption); United
States v. Huebner, 752 F. 2d 1235 (7th
Cir.), cert. denied, 474 U.S. 817 (1985)
(Sidecasting and use of a bulldozer to
spread the material over several acres
constituted the discharge of dredged
material that was not exempt under
404(f)); Weiszmann v. U.S. Army Corps
of Engineers, 526 F. 2d 1302, 1306 (5th
Cir. 1976)( ‘‘Spill’’ of sediment during
dredging of canal was a discharge of a
pollutant; court rejected the argument
that a spill is not a ‘‘discharge.’’).
We agree that Deaton and the other
cases cited offer additional support.
Deaton provides helpful post-NMA
insights into what is an ‘‘addition’’ of a
pollutant, and we note that the NAHB
Motion Decision rejected the idea that
there is a conflict between Deaton and
NMA. NAHB Motion Decision at 16. We
believe today’s rule is consistent with
Deaton, AMC, and NMA, and complies
fully with the injunction affecting the
1993 Tulloch Rule.
Numerous commenters looked to the
CWA as a basis for concluding the
proposal was consistent with
Congressional intent and NMA. One
commenter observed that numerous
courts, including the U.S. Supreme
Court, have looked to the underlying
policies of the CWA when interpreting
authority to protect wetlands. The
commenter noted that the goal of the
CWA is to maintain the ‘‘chemical,
physical, and biological integrity of the
Nation’s waters,’’ and discussed the
pollution and adverse effects to aquatic
ecosystems caused by wetlands
dredging and stream channelization.
The commenter emphasized that it
would frustrate the goal of the CWA to
not regulate the incidental soil
movements that occur during
excavation. While we agree that
regulation of discharges of dredged
material into waters of the U.S. is a
critical component of achieving CWA
goals, consistent with AMC and NMA,
CWA section 404 does not extend to
incidental fallback, and today’s rule has
been drafted to ensure that we regulate
only on the basis of the discharge of
dredged material.
Some commenters suggested that
today’s rule also be guided by CWA
section 404(f)(2) and its legislative
history, which explicitly require the
regulation of ‘‘incidental’’ discharges
under certain circumstances even if they
might otherwise be a result of a
specially exempt category of activities.
Most of these commenters concluded
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4560 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
that section 404(f)(2) reflects an explicit
Congressional intent to regulate minor
and unintentional soil movements that
occur during the process of constructing
a drainage ditch in wetlands or
otherwise are incidental to an activity
that ‘‘impairs circulation and flow or
reduces the reach’’ of waters of the U.S.
One commenter concluded that this
section of CWA does not provide
support for today’s rule.
One commenter asserted that section
404(f)(2) conveys important
Congressional intent regarding how the
term ‘‘discharge’’ should be interpreted,
despite the fact that the section does not
define the term ‘‘discharge.’’ While
agreeing with the District Court in AMC
that the section does not use effects ‘‘to
regulate activities that do not
themselves constitute discharges’’ (951
F.Supp. 267, 275 n. 18), the commenter
argued that section 404(f)(2) makes clear
the proposition that: (1) At a minimum
some category of ‘‘incidental’’
discharges are regulated by the CWA; (2)
regulation under section 404(f)(2) does
not depend on whether the ‘‘incidental’’
discharge itself has significant
environmental effects but only on
whether the activity, to which the
discharge may be only ‘‘incidental,’’ has
certain environmental effects; and (3)
regulated ‘‘incidental’’ discharges can
occur during the excavation or dredging
process, because the language of the
section about ‘‘reducing the reach’’ and
‘‘impairing the flow’’ commonly occur
through excavation of drainage ditches.
One commenter suggested that
language of section 404(f)(1) similarly
supported the idea that a permit should
generally be required for activities that
drained wetlands. For example, the
commenter noted section 404(f)(1)(a)
provides an exemption for ‘‘minor
drainage’’ associated with farming and
silvicultural activity. If discharges from
such activities trigger the provisions of
section 404(f)(2), the commenter
asserted, Congress intended ‘‘minor
drainage’’ to be regulated. The
commenter argued that the plain
language in section 404(f)(1) provides
guidance for interpreting the term
‘‘discharge.’’ Section 404(f)(1) states that
‘‘the discharge of dredged or fill
material’’ resulting from these activities
‘‘is not prohibited by or otherwise
subject to regulation.’’ In other words,
the commenter emphasized, the
identified activities that may result in a
discharge of dredged or fill material ‘‘are
exempt from section 404 permit
requirements’’ (quoting Corps and EPA
implementing regulations, 33 CFR
323.2; 40 CFR 232.3(c)); otherwise, there
would be no need for the 404(f)(1)
exemptions.
As discussed in section III A 2 above,
today’s rule is based on the definition of
‘‘discharge of a pollutant’’ contained in
section 502 of the Act, as construed by
the caselaw, including the AMC and
NMA opinions finding that incidental
fallback is not a regulable discharge
under the Act. We agree that section
404(f), and in particular the use of the
term ‘‘incidental’’ in section 404(f)(2)
provides evidence supporting our
rejection of some commenters’
assertions that the Act restricts us to
only regulating substantial or significant
redeposits of dredged material.
B. Overall Reasonableness of
Presumption
Many commenters expressed views
on the overall reasonableness of the
presumption contained in the proposed
rule. Commenters maintaining that the
presumption is reasonable stated that it
would not expand the regulatory
authority of the agencies or be contrary
to relevant court decisions, but instead
would clarify how that existing
authority would apply. Others noted
that the presumption is reasonable
because it is consistent with their
experience or Corps experience in
evaluating discharges of dredged
material. Numerous commenters
affirmed the validity of the examples of
activities in the preamble of the
proposed rule that are presumed to
result in a discharge of dredged
material, including those who asserted
that the presumption would decrease
regulatory uncertainty as a consequence.
These commenters also stated their view
that other specific activities (e.g.,
grading, leveling, bulldozing) and
redeposits of sediment away from the
point of excavation during ditching and
channelization were regulable
discharges.
One commenter indicated that the
very nature of how some equipment
operates means that it will always result
in a discharge with more than incidental
fallback. Another asserted that dredging
or excavation activities conducted in a
wetland or stream will always result in
a regulable discharge. A number of
commenters provided citations from the
scientific literature in support of the
presumption for these activities. Several
commenters maintained that the
presumption is reasonable because in
any instance a person conducting such
activities would be given the
opportunity to demonstrate that only
incidental fallback would result.
Today’s rule reflects a reasonable
belief that mechanized earth-moving
equipment when used in waters of the
U.S. typically will cause regulated
discharges because they are made to
move large amounts of earth and will
typically relocate the dredged material
beyond the place of initial removal. We
also recognize, however, that the
activities addressed in today’s rule will
not always result in a discharge, and
therefore, the final rule allows the
necessary flexibility for considering
project-specific information that only
incidental fallback results.
Other commenters maintained that
the presumption was not reasonable,
arguing that it was at odds with
controlling legal precedent. These
commenters argued that to establish a
rebuttable presumption, case law
requires us to have a record
demonstrating that it is more likely than
not that the presumed fact exists. See
e.g., National Mining Association v.
Babbitt, 172 F.3d 906 (D.C. Cir. 1999).
Some commenters asserted that the
presumption was unreasonable because
it did not clearly articulate the scope of
what is not regulated (i.e., what is
incidental fallback). Some commenters
also maintained that the presumption
was not reasonable because it would
require a permit for all of the types of
activities addressed in the rule, and
would thus regulate dredging itself
rather than the discharges that result.
Some asserted that because the
presumption is not always true, it is not
reasonable. Other commenters asserted
that the recognition in the proposed
rule’s preamble that specialized and
sophisticated techniques and machinery
may limit redeposits to incidental
fallback undercuts the proposed rule’s
presumption. One commenter likened
the presumption in the proposed rule to
the agencies presuming that all land was
jurisdictional under section 404 of the
CWA and then taking enforcement
action based on that presumption
without establishing that the agencies
had jurisdiction. Another comment
asserted that no technical analysis was
offered to support the proposed rule’s
presumption.
As previously discussed in section II
C of today’s preamble, the final rule
does not establish a rebuttable
presumption. Therefore, commenters’
arguments about not meeting the legal
prerequisites for establishing a
rebuttable presumption in the legal
sense are not relevant to the final rule.
Instead of a rebuttable presumption, the
rule states our view that we will regard
the use of mechanized earth-moving
equipment to conduct landclearing,
ditching, channelization, in-stream
mining or other earth-moving activity in
waters of the U.S. as resulting in a
discharge of dredged material unless
project-specific evidence shows that the
activity results in only incidental
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Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
fallback. In addition, in response to
comments that we received, we have
included in the final rule a descriptive
definition of ‘‘incidental fallback.’’
As today’s rule expressly provides
that it does not shift any burden in CWA
judicial or administrative proceedings,
we do not agree that the rule has the
effect of simply presuming jurisdiction,
as the burden to show that a regulable
discharge occurs has not been altered.
Further, because we do not use a
rebuttable presumption in today’s final
rule, the legal standards under the
caselaw for judging the adequacy of an
agency’s record to justify a rebuttable
presumption are not relevant to this
rule. We also do not agree that today’s
rule results in a permit being required
in every circumstance in which the
activities listed occur. Today’s rule
continues to expressly provide that
incidental fallback is not a regulable
discharge, and also provides for projectspecific
consideration of whether only
incidental fallback results from the
activities addressed by the rule. We
believe that the modified regulatory
language provides a measure of
regulatory certainty as to the types of
activities that are likely to result in a
regulable discharge, while preserving
necessary flexibility to address the
specific circumstances of a given
project.
We also believe that allowing for
project-specific information that the
activity is conducted in a manner that
results in only incidental fallback is
indicative of that flexibility, rather than
undercutting the validity of our general
view. With respect to consistency with
legal precedent and the CWA, we have
addressed such issues elsewhere in the
preamble, primarily in sections II C and
III A.
Today’s regulation is based on the
nature of earth-moving equipment (i.e.,
machines that move the earth). Contrary
to the assertion that no technical
analysis was provided, the preamble to
the proposed rule, as well as materials
in the rule’s record, do provide
technical information supporting the
reasonableness of the final rule. We also
believe the rule is reasonable in that it
helps ensure that activities resulting in
discharges meant to be addressed by the
CWA are in fact regulated. Moreover,
the rule’s explicit opportunity to
consider project-specific evidence to the
contrary, and express recognition that it
does not shift any burden in any
administrative or judicial proceeding
under the CWA, ensures that activities
outside our jurisdiction are not
regulated.
One commenter contended that
excavation activities result in
environmental benefits, providing an
example that the size of certain
unnamed drainages underwent a net
expansion as the result of excavation at
mine sites. Another comment asserted
that the presumption was not reasonable
because during the interval between the
court decision and the publication of
the proposed rule, the Corps, according
to the commenter, had implicitly or
explicitly acknowledged circumstances
where excavation activities could be
undertaken without a discharge
requiring a section 404 permit.
Whether or not one agrees that certain
excavation activities result in a net
expansion of waters or net benefit to the
aquatic environment does not bear upon
the issue of whether such activities
produce regulable discharges. Many
restoration activities and other
environmentally beneficial efforts
necessitate discharges into waters of the
U.S., a number of which are provided
authorization under Nationwide General
Permits.
A number of commenters requested
clarification of, or objected to, the
rebuttal process due to vagueness. These
commenters sought further specifics as
to the type of information that could be
used to rebut the presumption and the
standard of proof. In addition, they
expressed concern that it would be
difficult or impractical to rebut the
presumption contained in the proposed
rule. These commenters were concerned
that the proposal placed an unfair
burden on the landowner by requiring
the applicant to prove a standardless
proposition or not rebut the
presumption and risk enforcement.
These commenters believed it would be
difficult to present a valid case because
the proposal did not establish a set of
clearly defined criteria for rebutting the
presumption of discharge; some said
that the rule seemed to require that a
party undertake the activity with its
inherent enforcement risks in order to
provide evidence to rebut the
presumption; others argued that the
description of a regulable discharge is so
broad that the presumption can not be
rebutted. Others expressed concern that
any effort to rebut the presumption
would be extremely time-consuming,
confusing, technically challenging and
cost prohibitive. Other commenters
expressed the view that the rule unfairly
placed the burden of determining
jurisdiction on the regulated
community, a burden that should be
borne by the government instead.
As noted in the proposed rule
preamble, the proposal expressed:
* * * our expectation that, absent a
demonstration to the contrary, the activities
4561
addressed in the proposed rule typically will
result in more than incidental fallback and
thus result in regulable redeposits of dredged
material. It would not, however, establish a
new formal process or new record keeping
requirements, and Section 404 permitting
and application requirements would
continue to apply only to regulable
discharges and not to incidental fallback.
65 FR 50113.
The proposal would not have required
project proponents or landowners to
‘‘prove a negative’’ or shift the burden
of proof as to CWA jurisdiction from the
government to the regulated community
and the final rule clarifies our intent in
this regard. As we have discussed in
section II C of today’s preamble, in light
of comments received, we have revised
the rule to make clear that it does not
shift the burden of showing that a
regulable discharge has occurred under
the CWA, and also have included a
descriptive definition of non-regulable
incidental fallback in order to help
provide a standard against which to
judge regulable versus non-regulable
redeposits. As a result, we do not
believe the final rule somehow
establishes or requires a timeconsuming
or expensive rebuttal
process. Instead, it provides clarification
to those who have unwittingly misread
the NMA case to preclude regulation of
all removal activities in waters of the
United States. Issues related to the types
of relevant information we will consider
in determining if a regulable discharge
has occurred are addressed in section II
C of today’s preamble.
Other commenters felt the proposed
rule’s presumption was unreasonable in
light of the exclusion provided for
‘‘normal dredging operations.’’ As in the
original August 25, 1993, Tulloch Rule,
several commenters suggested that all
discharges of dredged material should
be regulated, stating that it does not
seem reasonable or consistent to
exclude discharges incidental to
‘‘normal dredging operations’’ for
navigation, while regulating excavation
for non-navigation purposes.
In response we note that today’s rule
does not modify in any respect the
provisions of the 1993 rule related to
normal dredging operations, and we
have not reopened any of these
provisions in this rulemaking. The
rationale for the normal dredging
operation provisions was explained in
the August 25, 1993 rulemaking (58 FR
45025–45026), and interested readers
are referred to that discussion for further
details.
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4562 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
C. Reasonableness of rule as to specific
activities
Commenters cited a number of
circumstances or scenarios that may or
may not result in a regulable discharge.
As a general matter, there was not
sufficient information provided in the
comments to provide a case-specific
response. The discussion below is not
intended to be definitive, as an actual
decision about whether a particular
activity results in a discharge needs to
be made on a case-by-case basis
considering actual evidence of the
particular activity in question.
Literature citations and other
information that such commenters
provided have been added to the record
for the rule.
We received several comments
regarding mining practices. One stated
that for mining-related activities, they
were unable to name examples of any
equipment used that was not included
on the proposed rule’s referenced list as
falling within the rebuttable
presumption. Therefore, according to
the commenter, the presumption had
the effect of precluding ‘‘per se’’ all
mining related activities performed with
mechanized equipment in jurisdictional
areas in contravention of the AMC and
NMA decisions. Another asserted that
under the proposed definition, most
placer mines, suction dredges, and
exploration trenches would be required
to obtain an individual section 404
permit. As discussed in section II C of
today’s preamble, the final rule does not
establish a rebuttable presumption, and
provides for consideration of projectspecific
information to determine if a
discharge results. We thus do not
believe that today’s rule has the effect of
‘‘per se’’ precluding or regulating all
activities conducted with mining
equipment in waters of the U.S. For
example, as noted in section III A 1 a
of today’s preamble, some suction
dredging can be conducted in such a
way as not to produce a regulable
discharge.
Several commenters raised scenarios
involving in-stream mining or other
mechanized activities in dry,
intermittent streambeds, particularly of
the kind that may occur in arid regions
of the country. One stated that
excavation activities in arid regions
would not result in the ‘‘parade of
horribles’’ that the agencies presume
result from excavation. One commenter
put forward two specific scenarios of instream
mining activities that he believed
were not covered as regulated
discharges. They were the use of a frontend
loader to scoop out material from a
dry, intermittent stream up against the
stream bank or other face, and the use
of a scraper to move material out of the
dry stream. Some commenters
contended that such activities are
conducted with little or no sediment
redeposition, stating they do not involve
the uprooting of vegetation and are
undertaken when the stream bed is
completely dry after winter flow ends
and before the threat of the first flow in
the next winter. Other comments stated
that it was necessary to recognize that
the southwest is different from the east
where ‘‘real wetlands’’ exist, contending
that, in the west, wetlands for the most
part are only wetlands because the
government says they are. The
commenters believed that one rule
should not apply to all, and that the vast
majority of the drainages located in the
southwest are in arid climates, which in
many instances involve nothing more
than isolated ephemeral streams, or dry
washes with very little if any aquatic
resources and with flows that occur
only in response to infrequent rains and
effluent from stormwater discharge. Still
other comments focused on flood
control maintenance activities where
they asserted the disturbances are
minimal and include only minor water
quality impacts such as deposit and
removal of sediments to maintain flow
conveyance. They stated their activities
are typically performed in a dry
riverbed or channel, where there are no
aquatic resources, the material in the
channel is primarily sand and gravel,
and the potential for downstream
impacts are minimal.
We acknowledge that the presence or
absence of water in a jurisdictional
stream or other jurisdictional area is a
project-specific fact that would need to
be considered in deciding whether an
activity results in only incidental
fallback or a regulable discharge. While
we agree that the presence or absence of
water is relevant to determining
whether a discharge has occurred due to
suspension and transport of material to
a new location, regulable discharges can
still occur in a dry streambed when
mechanized equipment is used to push
materials from one area of jurisdictional
water to another. Discharges can also
occur when material is deposited in
such a way as to cause materials to slide
back into the jurisdictional area.
Several commenters contended that
by establishing a rebuttable
presumption that mechanized
landclearing produces more than
incidental fallback, the proposed rule
would have resulted in undue hardship
by subjecting them to environmental
review. They believe that the stated
rationale for the agencies’ proposed
presumption with respect to
mechanized landclearing fails to
consider the clearly ‘‘incidental’’ nature
of any soil movement associated with
such activity. Another commenter
maintained that landclearing activities,
such as grubbing and raking with a
small D–7 Caterpillar bulldozer, along
with a K–G blade and a root rake, can
be conducted so that the only soil
displaced during a landclearing would
be that which would ‘‘stick to and
sometimes fall off the tracks of the
bulldozer,’’ or would be ‘‘scraped off the
blade,’’ or would be ‘‘pushed up by [a]
stump or stuck to [a] stump or its root
mass as it was knocked over and pulled
from the ground.’’ This commenter also
maintained that the agencies were well
aware of such landclearing techniques
and should acknowledge that they do
not produce regulable discharges.
In response, we first note that the
final rule has eliminated the use of a
rebuttable presumption. As stated
elsewhere in today’s preamble, the use
of mechanized earth-moving equipment
to conduct landclearing, because it
typically involves movement of soils
around a site, would typically involve
more than incidental fallback. It is
difficult to give generalized conclusions
regarding specific subcategories of
activities or practices, particularly
where the description of the activities
lacks detail. Whether a particular
activity results in a discharge, or only
incidental fallback, necessarily depends
upon the particular circumstances of
how that activity is conducted, and as
a result, today’s final rule allows for
project-specific considerations. We also
note that in the NAHB Motion Decision,
the Court declined to decide, on a
general level, that the displacing of
soils, sediments, debris, or vegetation
incidental to the use of root rakes and
excavating root systems or knocking
down or uplifting trees and stumps to be
non-regulable under section 404. NAHB
Motion Decision at 15. Whether or not
these types of activities are conducted
so as to avoid a regulable discharge
depends upon project-specific
considerations, which today’s final rule
provides for. See also section III A 1 of
today’s preamble for further discussion
of certain activities, such as use of K–
G blades.
Numerous commenters suggested that
a backhoe was the classic example of
how digging could be done with no
more than incidental fallback. They
believed that one-motion excavation,
such as excavation with a conventional
hydraulic-armed bucket (e.g., trackhoe
or backhoe), can be easily accomplished
with only incidental fallback resulting.
They contended that the small amount
of material that falls from the bucket is,
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Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
by definition, incidental to the
operation of the bucket and the
excavation and that no dredged material
is introduced into the jurisdictional
area, meaning a regulable discharge has
not occurred. In summary, they believed
that the proposed rule was too inclusive
and should explicitly exclude certain
types of excavation from the
presumption of discharge.
The preamble to today’s rule clearly
recognizes that there are situations
where, due to the nature of the
equipment used and its method of
operation, a redeposit may be limited to
‘‘incidental fallback.’’ As emphasized
repeatedly, today’s rule would continue
to exclude incidental fallback from
regulation under section 404. We note,
however, that backhoes by their nature
(i.e., the size of the excavation
machinery) are typically used to move
more than small volumes of material in
the course of excavation, and are thus
likely to result in redeposits that exceed
the definition of incidental fallback (i.e.,
‘‘small volumes of dredged material
* * * [that] * * * falls back to
substantially the same place as the
initial removal.’’) However, the rule
allows for project-specific evaluation of
whether only incidental fallback occurs,
and the definition of incidental fallback
includes as an example ‘‘the back-spill
that comes off a bucket when such small
volume of soil or dirt falls into
substantially the same place from which
it was initially removed.’’
One commenter suggested that
discing is not excavation, since there is
no removal, but merely minor
displacement. They believed that the
proposed rulemaking suggests that
disking results in more than incidental
fallback, and they question how there
can be any fallback of any nature where
there is no excavation. Another
commenter challenged the
reasonableness of the presumption,
because not all mechanized activities
first ‘‘remove’’ material from waters of
the U.S. and therefore such activities
could not result in material being
redeposited.
We acknowledge that there are
mechanized activities that do not first
excavate or remove material and
therefore redepositional discharges do
not occur (e.g., the driving of piles in
many circumstances). However, we also
note that by pushing or redistributing
soil, activities other than excavation can
result in the addition of dredged
material to a new location, and hence
produce a regulable discharge.
Several commenters discussed the
routine operation and maintenance of
numerous existing flood control
channels, levees and detention basins.
They stated that existing facilities are
vital to tax-paying citizens since they
are critically needed to protect their
health and safety. They also stated the
intent of a flood control excavation
project is to maintain hydraulic capacity
and entirely remove accumulated
sediment and debris from the facility,
restoring it to its original lines and
grades. They contended that the
implementation of existing
maintenance-related Best Management
Practices addresses negative impacts of
this work. Additionally they asserted
that, under current regulation, no permit
is required for excavation, the work can
proceed in a timely manner, and costly
submittals are not needed. They also
contended that their ‘‘finished
products’’ enhance, protect and
maintain water quality. The commenters
were concerned that all of their
excavation projects under the proposed
rule would be presumed to include an
‘‘addition’’ of pollutants.
One commenter, on behalf of a water
authority, stated that they frequently
engage in a number of activities subject
to section 404 of the CWA, and which
typically fall under the Nationwide
permit program. Such activities include
the construction of erosion control
structures, channelization for temporary
water diversions during construction of
facilities, and building pipelines that
infrequently occur in waters of the U.S.
They stated that their efforts to enhance
and restore wetlands often require
mechanized landclearing to remove
non-native, invasive vegetation. They
asserted that, if implemented, the
proposed revision would
inappropriately deem these activities
regulable discharges, when in fact they
do not involve discharges beyond
incidental fallback. Another commenter
stated that they have restored several
lakes, ponds, and sediment in streams
with the one-step removal process
under the Tulloch Rule. They utilize
specialized low ground pressure
equipment, to provide one step removal
of accumulated sediments in a low
impact manner to restore lakes, ponds,
and streams. They also assert that they
are very conscientious to prevent any
fall back or otherwise discharges of
materials into any waters of the U.S. and
that they have very successfully restored
many acres of U.S. waters, restoring
aquatic habitat and navigability, and
property values throughout their
particular region of the U.S. They
believed a distinction needs to be made
between restoration activities to remove
sediment from smothered aquatic
habitats and draining jurisdictional
4563
areas to convert waters of the U.S. to
upland uses.
In response, we note that some of the
routine discharges from operation and
maintenance of existing flood control
channels, levees and detention basins
are exempt from regulation under CWA
section 404(f), and the exemption is not
affected by this rule. Also, Corps
Nationwide and Regional General
Permits authorize some of the routine
operation and maintenance work. We
also note today’s rule does not establish
new requirements or procedures, and
thus does not necessitate costly new
submittals. Additionally, today’s rule no
longer establishes a rebuttable
presumption, and project-specific
information will be considered in
determining whether an activity results
in more than incidental fallback. If, as
some of these commenters assert, their
activities do not result in more than
incidental fallback, then they would not
be regulated under the CWA, nor are
they currently regulated. We also note
that because the determination of
jurisdiction rests on the presence of a
discharge of dredged material, which is
not dependent upon either the effects of
the activity or the intent of the person,
the fact that an activity may or may not
be beneficial, or is undertaken with the
intent to remove material, does not form
the basis for determining jurisdiction.
One commenter was concerned that
the proposed rule’s presumption would
seriously impede the ability of water
users to maintain their diversion
structures, irrigation ditches, retaining
ponds and reservoirs. In light of the fact
that the term ‘‘waters of the U.S.’’
determines the extent of the Corps
jurisdiction under the CWA, they
believed that the proposed rule would
subject even the most routine
maintenance of ditches, headgates and
off-channel storage facilities to the
permitting process and that resulting
delays would hamper the efficient
operation of water delivery systems, and
jeopardize safety as well.
Today’s final rule does not establish
a rebuttable presumption, and as
discussed in section II C and III A of
today’s preamble, would not result in
the regulation of incidental fallback. We
also note that because the determination
of jurisdiction rests on the presence of
a discharge of dredged material, which
is not dependent upon the effects of the
activity, the fact that an activity may or
may not be beneficial does not form the
basis for determining jurisdiction.
D. Regulation on Basis of Toxics/
Pollutant Releases
A number of commenters from the
science profession provided extensive
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4564 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
discussion regarding the discharge of
pollutants. These scientists contended
that mechanized excavation and
drainage activities in wetlands, rivers
and streams almost always cause the
discharge of pollutants into waters of
the U.S., and frequently result in
severely harmful environmental effects.
They noted that it is well-established in
the peer-reviewed scientific literature
that wetlands and many parts of river
and stream beds act as natural sinks,
collecting sediment, nutrients, heavy
metals (e.g. lead, mercury, cadmium,
zinc) toxic organic compounds (e.g.,
polycyclic aromatic hydrocarbons-
PAHs, polychlorinated biphenyls-PCBs)
and other pollutants which enter
wetlands through polluted runoff, direct
discharges, and atmospheric deposition.
Moreover, they provided citations
which describe other characteristics of
wetlands and water bottoms that also
play an important role in storing
precipitated metals and other
pollutants. For instance, over time, fresh
layers of sediment added to wetland and
river and stream beds can gradually
bury and sequester trace metals and
toxics. Vegetation also helps soils
immobilize toxins and heavy metals by
attenuating flow of surface waters and
stabilizing the substrate, allowing metalcontaminated
suspended particles to
settle into sediment.
Furthermore, these commenters cited
scientific literature which illustrates
that wetland soils and river and stream
beds immobilize toxins and heavy
metals and other pollutants. Briefly
summarized, these indicate that
anaerobic conditions occur when
wetland, river, and stream soils are
saturated by water for a sufficient length
of time; microbial decomposition of
organic matter in the sediment produces
anaerobic conditions. The anaerobic soil
environment, with the accompanying
neutral pH levels and presence of
organic matter in the sediment, triggers
different chemical and microbial
processes in the soils. These
characteristic conditions of wetland,
river, and stream soils result in the
precipitation of trace and toxic metals as
inorganic compounds, or complexed
with large molecular-weight organic
material—effectively immobilizing these
compounds.
These commenters maintained, and
provided citations illustrating, that
when a wetland is ditched or drained,
or a riverbed excavated, channelized or
dredged, mechanized activities dislodge
some of the sediments and resuspend
them in the water column from both the
bottom and the sides of the ditch or
other waterbody. Water draining from
ditched or excavated wetlands carries
suspended sediments down ditches to
receiving waters; similar resuspension
and downstream movement occur when
river and stream bottoms are
channelized. They furthermore
provided supporting literature from
scientific journals documenting that
when wetlands are ditched or drained
or rivers and streams excavated, some
pollutants move into the water column.
As described, when wetlands soils are
exposed to air, the anaerobic, neutral pH
conditions that promoted toxins and
heavy metals to precipitate-out can shift
to aerobic conditions, and the soil
chemistry is transformed by the
oxidizing environment and possible
shift in pH. The mobility of metals
bound in sediment is generally
determined by pH, oxidation-reduction
conditions, and organic complexation—
thus, precipitates may begin to dissolve
and become available for transport
when soils are exposed to air.
Contaminated sediment resuspension
does not usually result in a pH change
in rivers; but there, as in wetlands,
microbial action can release such
pollutants as trace elements during the
reoxidation of anoxic sediments that
subsequently flow into drainage ditches
and into receiving waters.
Finally, commenters from the science
community pointed out that turbulence
prolongs the suspension of sediment
and contaminants in the water column,
so moving water (e.g., drainage ditches)
retains suspended materials longer than
standing water. In general, organic
chemicals and toxic metals are more
likely to be attached to smaller, lighter
particles, which also are more likely to
remain suspended in the water column.
The commenters noted that smaller
particles may also give up organic
chemicals more efficiently than larger
particles. Thus, they assert, exposing
contaminated sediment to the water
column causes some dissolution of
pollutants, while the direct discharge of
sediment into the water during dredging
accelerates the release of contaminants.
The agencies thank these commenters
for their detailed discussion of current
scientific literature, which we have
included in the administrative record.
We agree that the evidence presented
points to the harmful environmental
effects that can be associated with
redeposits of dredged material
incidental to excavation activity within
a particular water of the United States,
even those redposits occurring in close
proximity the point of initial removal.
To the extent commenters believe that
we should determine the scope of our
jurisdiction based on such
environmental effects, however, we
decline to do so. As stated previously,
today’s rule does not adopt an effectbased
test to determining whether a
redeposit is regulated, but instead
defines jurisdiction based on the
definition of ‘‘discharge of a pollutant’’
in the Act and relevant caselaw. We
have chosen to define our jurisdiction
based not on the effects of the discharge,
but on its physical characteristics—i.e.,
whether the amount and location of the
redeposit renders it incidental fallback
or a regulated discharge. Nonetheless,
the evidence reviewed in these
comments points to serious
environmental concerns that can be
associated with redeposits other than
incidental fallback (which are regulated
under today’s rule), and support the
agencies’ view that it would not be
appropriate, as suggested by some
commenters, to establish quantitative
volume or other ‘‘significance’’
thresholds before asserting jurisdiction
over such redeposits.
One technical commenter contended
that the likelihood of toxicant release
and mobility is many times greater for
navigational dredging than it is for most
other excavation activities, especially in
wetlands. This commenter asserted that
the primary reason for this is that the
vast majority of excavation projects that
would be subject to the proposed rule
do not have toxic substances in toxic
amounts present in the natural soils, but
many navigational dredging projects in
commercial ports do. The commenter
stated that while it is true that some
contaminants may be more mobile in an
oxidized than reduced state, the
conclusion that contaminants will be
released from normal excavation project
activities is without technical merit. The
commenter further recommended that
since the effects of navigational
dredging were determined to be
acceptable, the results of those same
studies should be used to establish what
is more than incidental fallback. As
noted in today’s preamble, the potential
for release and distribution of pollutants
contained in dredged material is a factor
that would be considered in
determining if a regulable discharge of
dredged material beyond the place of
initial removal results. We do not agree
with the apparent suggestion that
wetlands soils are necessarily in a
pristine or natural state. As discussed in
the proposed rule’s preamble, wetlands
can act as sinks for pollutants, and
sequester contaminants. In addition, we
note that the 404 program applies to
waters of the U.S., which include not
just wetlands, but rivers, lakes, harbors
and the like as well. Finally, we do not
agree that the environmental effects of
harbor dredging should somehow be
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used to establish what is more than
incidental fallback. As previously noted
in section III A 1 d of today’s preamble
and also discussed below, we do not
believe that use of an effects-based test
for jurisdiction is appropriate in light of
the AMC and NMA decisions.
Other commenters strongly opposed
the idea that the transport of dredged
material downstream or the release of
pollutants as a result of excavation
activities should be treated as a
discharge. Some of these commenters
asserted that consideration of impacts
on water quality resulted in the use of
an ‘‘effects-based test’’ to establish
jurisdiction, which they indicated was
not allowable under the NMA decision.
Others expressed the view that such an
interpretation would result in regulation
of incidental fallback and thus not be
allowable.
These comments refer to the
discussion in the proposed rule’s
preamble regarding the information that
we would use to evaluate whether a
regulable discharge has occurred.
Among other things, that preamble
stated:
In evaluating [whether regulable discharges
have occurred], the permitting authority will
consider the nature of the equipment and its
method of operation and whether
redeposited material is suspended in the
water column so as to release contaminants
or increase turbidity, as well as whether
downstream transportation and relocation of
redeposited dredged material results.
65 Fed. Reg. at 50113.
The agencies continue to believe that
when determining whether a discharge
has occurred, it is relevant and
appropriate to consider whether an
activity results in the release and
distribution of sequestered pollutants
into the water column or in suspended
material being carried away from the
place of removal before settling out. In
such cases, a pollutant is being added to
a new location. This is not the use of an
‘‘effects-based test’’ to establish the
existence of a discharge, but rather
recognizes that when pollutants are
released or relocated as a result of the
use of earth-moving equipment, this can
result in the ‘‘addition’’ of a ‘‘pollutant’’
from a ‘‘point source’’ to ‘‘waters of the
U.S.,’’ and thus constitute a regulable
discharge. In Deaton, the Fourth Circuit
recognized that one of the reasons
sidecasting should be treated as a
regulable discharge is that: ‘‘When a
wetland is dredged, however, and the
dredged spoil is redeposited in the
water or wetland, pollutants that had
been trapped may be suddenly
released.’’ Deaton, 209 F.3d at 336. The
NMA court indicated that resuspension
should not be used to regulate
excavation and dredging activities that
result only in incidental fallback. 145
F.3d at 1407. We would consider the
nature and amount of any resuspension
and transport in determining whether a
regulable discharge occurred.
We also do not agree that allowing for
consideration of the release of
pollutants contained in the dredged
material into the water column and the
transport of suspended material
downstream would necessarily result in
the regulation of incidental fallback.
These are relevant factors in
determining if material has been moved
to a new location, and consequently
resulted in the addition of a pollutant to
a new area. However, in evaluating
these considerations, we would take
into account the volume and location of
redeposited material so as not to
regulate incidental fallback.
A number of other commenters
requested that the proposed rule be
strengthened so as to require a permit
for excavation and channelization
activities which release even small
amounts of pollutants (such as heavy
metals or PCBs) into the water column
or which would result in their transport
down stream. Under today’s rule, such
pollutants (which constitute dredged
material by virtue of having been
dredged or excavated from waters of the
U.S.) (see e.g., 40 CFR 232.2 (defining
dredged material as ‘‘material that is
dredged or excavated from waters of the
U.S.)) would be regulated if
resuspended and transported to a
location beyond the place of initial
removal in such volume so as to
constitute other than incidental fallback.
We believe that is the appropriate test
for evaluating any redeposit of dredged
material, for reasons stated previously.
As explained elsewhere in today’s
preamble, we expect that the use of
mechanized earth-moving equipment in
waters of the U.S. will generally result
in a regulable discharge. However, we
do not believe that it is appropriate to
per se treat the redeposits described by
these comments as a discharge of
dredged material, as consideration
needs to be given to the factors of each
particular case in making a regulatory
decision.
E. Need for Brightline Test
Many commenters expressed concern
that the proposal did not provide a clear
definition of what constitutes a
regulable discharge or incidental
fallback. Many of these commenters
were concerned that without clear
standards that the regulated community
or the regulators can use in order to
determine when an activity is subject to
federal jurisdiction, the proposal would
4565
have resulted in a system that was
arbitrary and uncertain and was too
vague in light of the CWA’s civil and
criminal penalty scheme. Some of these
commenters expressed the view that
without clear standards the rule would
be void for vagueness, not meet the due
process standard of providing fair
warning of what activities are regulated,
or violate the Constitution’s nondelegation
doctrine as construed in
American Trucking Association v.
Browner, 175 F.3d 1027 (D.C. Cir. 1999).
Commenters also expressed concern
that this would result in uncertainty and
the need for subjective case-by-case
determinations. Many of those
concerned with the lack of a definition
requested the proposal be withdrawn
and re-proposed to include such a
provision; some of these also indicated
that guidance on what constitutes a
regulable discharge versus incidental
fallback needs to take the form of a rule,
and should not be attempted through
informal guidance.
Our May 10, 1999, rulemaking
amended the substantive aspects of the
definition of ‘‘discharge of dredged
material’’ to provide that we no longer
would regulate ‘‘any’’ redeposit, and
that ‘‘incidental fallback’’ was not
subject to regulation. That continues to
be the case under today’s final rule. As
noted in section II B of today’s
preamble, the May 10 rulemaking was
considered by the NMA court in its
September 13, 2000, opinion and found
to be in compliance with the AMC and
NMA opinions and associated
injunction. NAHB Motion Decision at
10. Today’s rule does not alter the
substantive regulatory definition of
what constitutes a discharge. Rather
than create arbitrary or unclear
standards as some commenters have
claimed, today’s rule provides
additional clarification for both industry
and the regulatory agencies as to what
types of activities are likely to result in
regulable discharges.
In addition, the preamble to the
proposed rule did provide guidance as
to the agencies’ views on what
constitutes a regulable redeposit versus
incidental fallback. For example, that
preamble explained that as the NMA
court and other judicial decisions
recognize, the redeposit of dredged
material ‘‘some distance’’ from the point
of removal (see NMA, 145 F.3d at 1407)
can be a regulable discharge. Similarly,
the preamble noted the language from
the NMA opinion describing what
constitutes incidental fallback:
involving the return of ‘‘. . . dredged
material virtually to the spot from
which it came’’ (145 F.3d at 1403), as
well as occurring ‘‘when redeposit takes
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4566 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
place in substantially the same spot as
the initial removal.’’ 145 F.3d at 1401).
Moreover, as explained in section II C
of today’s preamble, in response to
comments on the need for a definition
of incidental fallback, we have modified
the final rule to include a descriptive
definition consistent with relevant case
law. Since the definition of incidental
fallback reflects discussion in the AMC
and NMA opinions of incidental
fallback, and those cases were discussed
in the preamble to the proposed rule, we
do not believe that this revision to our
proposal necessitates reproposal.
A number of commenters requested
that the agencies adopt a ‘‘brightline
test’’ to distinguish between incidental
fallback on the one hand and regulable
discharges on the other. Some of the
commenters opposed to the proposed
rule expressed the view that the
proposal was contrary to the NMA
decision and the preamble to the
agencies’ earlier May 10, 1999,
rulemaking, in that it did not provide a
sufficiently reasoned or clear attempt to
draw a line between incidental fallback
and regulable redeposits. We believe
that the descriptive definition of
incidental fallback in today’s rule will
provide greater certainty, but do not
agree that the court in NMA mandated
that we take any particular approach to
defining our regulatory jurisdiction.
NMA only stated that ‘‘a reasoned
attempt by the agencies to draw such a
line would merit considerable
deference.’’ 145 F.2d at 1405 (footnote
omitted). As discussed previously, a
descriptive definition of incidental
fallback has been added to today’s final
rule. We do not believe that a more
detailed definition is appropriate at this
time.
Some comments suggested drawing a
bright line on the basis of measurable
criteria such as cubic yards of dredged
material, total acres of land disturbed,
gallons of water removed, tons of
sediment disposed, or similar measures.
Although consideration of factors such
as the volume and amount of the
material and nature and distance of
relocation are relevant in determining
whether incidental fallback or a
regulable discharge occurs, these factors
are inter-twined with one another, and
do not lend themselves to a segregable
hard and fast quantification of each
specific factor (or combination of
factors) so as to give rise to a hard and
fast test. Moreover, we are not aware of,
nor have commenters suggested, a
sound technical or legal basis on which
to establish brightline quantifiable
limits on such factors. For example, we
do not believe it is technically sound or
feasible to simply establish universally
applicable cut-off points for amount or
distance.
Another commenter requested a
brightline test be established by having
the rule state a presumption against
discharge for incidental soil movement
associated with mechanized
landclearing and excavation activities.
More specifically, this commenter
recommended that the rule provide that
no discharge results from incidental soil
movement associated with mechanized
landclearing, ditching, channelization,
draining, in-stream mining, or other
mechanized excavation activity such as
when (1) excavated soils and sediments
fall from a bucket, blade or other
implement back to the same general area
from which it was removed; (2) surface
soils, sediments, debris or vegetation are
scraped, displaced or penetrated
incidental to the use of machinery; (3)
excavation machinery is dragged
through soils or sediments; or (4)
vegetative root systems are exposed, or
trees and stumps are knocked down or
uplifted, incidental to the use of
machinery. The commenter’s
recommendation went on to provide
that otherwise the Agency may
demonstrate on a case by case basis that
mechanized excavation activity in
waters of the U.S. results in the
discharge of dredged material.
We do not agree with this suggestion
for a number of reasons. First, we
believe a test of the ‘‘same general area
from which it was removed’’ for
determining whether incidental fallback
has occurred could create the
impression that material redeposited in
virtually any part of the work area
would not be a discharge, which we
believe would be too broad of a test. As
both NMA and Deaton recognize, for
example, placement of dredged material
in as close a proximity to the excavation
point as the side of a ditch can result in
a regulable redeposit. We thus believe a
formulation based upon use of a ‘‘same
general area test’’ to be too expansive to
properly convey that short-distance
relocations can result in regulable
discharges. As discussed in section II C
of today’s preamble, we do believe a fair
and objective reading of the AMC and
NMA cases and the NAHB Motion
Decision, as well as other relevant
redeposit cases discussed in that section
of the preamble, is that incidental
fallback occurs when redeposit takes
place in ‘‘substantially’’ the same place
as the initial removal, and have so
provided in today’s final rule.
Moreover, the examples provided by
the commenter (e.g., dragging of
equipment, scraping or displacement of
soil or vegetation, uplifting of tree roots)
often can result in the relocation and
redeposit in waters of the U.S. of
substantial volumes of material over
considerable distances so as to
constitute more than incidental fallback
under the AMC and NMA opinions. The
approach suggested by this commenter
reflects perhaps a different conception
of what constitutes incidental fallback
than is contained in today’s rule. If
incidental fallback were to include any
material incidentally redeposited in the
course of mechanized activity, the
establishment of a presumption of
exclusion of the activities listed by the
commenter might follow as reasonable.
As discussed immediately above in this
section, however, we believe that this
formulation is not warranted and would
be too broad. We believe that we have
properly described incidental fallback
in today’s rule, and that it would not be
reasonable to assume the activities
listed by the commenter only cause
incidental fallback. In fact, as today’s
rule clarifies, we regard such activities
as typically resulting in more than
incidental fallback, absent projectspecific
information to the contrary.
However, there is substantial flexibility
under today’s rule to consider the types
of activities listed by the commenter
and determine on a case-by-case basis
whether a specific project is subject to
regulation.
Other commenters recommended that
while the term ‘‘discharge’’ should not
encompass the fallback of material
precisely to the same spot during
excavation activities, when the
movement of the dredged material raises
new environmental concerns (such as
release of pollutants into the water
column or more ready erosion of the
material and movement downstream),
this relocation should be treated as a
discharge. These and other commenters
also requested that the rule make clear
that a permit is required for excavation
and channelization activities which
release even small amounts of
pollutants (such as heavy metals or
PCBs) into the water column or which
would result in their transport
downstream. For reasons stated
previously, we do not agree that
whether an activity results in new
environmental concerns should be used
as the basis for establishing jurisdiction.
As discussed in both the proposed rule’s
and today’s preamble, the nature and
amount of transport and resettling of
excavated material downstream from
the area of removal, or release of
pollutants previously bound up in
sediment beyond the place of initial
removal, are relevant factors to consider
in determining if movement and
relocation other than incidental fallback
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has occurred. Thus, these factors are
relevant to determining whether a
redeposit other than incidental fallback
occurs, and are not used to assert
jurisdiction on the basis of
environmental effects.
Other comments urged that the rule
identify certain activities as always
requiring a permit or consisting of a
regulable discharge. Examples
mentioned in such comments included
sidecasting, backfilling, and stockpiling;
those supporting strengthening of the
proposal also included bulldozing,
grading, and leveling as always
requiring a section 404 permit. As
previously discussed in section II C of
today’s preamble and the preamble to
the proposed rule, case law has found
a number of activities (e.g., sidecasting,
backfilling of trenches) to be regulable
discharges under section 404. We
believe the preamble discussion on
these points to be sufficiently clear and
that inclusion of such specific examples
in the regulation itself is unnecessary.
To the extent grading and leveling
involve redistribution of soils in waters
of the U.S. around a site to create a level
area, such activities would appear to
typically involve not only a discharge of
dredged material (through the pushing
of dredged material from one location to
another) but also possibly fill material
(by filling low areas). See Avoyelles
(movement of soils to depressed areas as
discharge of fill material). In any event,
case law on redeposit issues continues
to evolve over time. Accordingly, we do
not believe the listing of specific
examples of discharges in the regulation
itself to be appropriate.
F. Clarity of Proposal and
Implementation Issues
1. Clarity
A number of commenters sought
clarification with regard to section
404(f), as they were concerned or
confused by the references to section
404(f) in the preamble to the proposed
rule. Most of these commenters
interpreted the preamble language to
indicate that the rule would establish
that certain silviculture or farming
activities described in section 404(f) as
being exempt from permit requirements
would now be subject to regulation,
particularly because these activities may
involve the types of machinery and
actions referenced in the proposal.
We regret that the references to
section 404(f) in the preamble may have
caused confusion regarding the
relationship of section 404(f) to the
rulemaking and emphasize that today’s
rule does not change the interpretation
or use of the exemptions in any manner.
Today’s rule concerns the fundamental
issue of what activities result in a
discharge that is regulated under section
404. The section 404(f) exemptions
describe those activities that, although
resulting in a discharge, do not require
a permit if they are conducted
consistent with that provision.
Activities covered by section 404(f),
including silviculture, ranching, and
agriculture, involving the use of
equipment and methods such as those
described in the rulemaking remain
exempt, subject to the provisions of
section 404(f), and are not altered by
today’s rule.
2. Comment Period
Two commenters requested an
extension of the public comment period
in order to better gauge the effects of the
rule on their membership. One of these
requested additional time to assess the
potential impacts of the proposal on
their industry and also requested a
public hearing on the proposal. The
other commenter expressed the view
that the proposal was fundamentally
different from previous iterations of the
Tulloch Rule, and sought additional
time in order to obtain more information
on the physical settings and the use of
many types of equipment by its
membership. We believe that a 60-day
comment period was adequate time to
obtain widespread and effective public
comment and that extending the public
comment period or holding a public
hearing is unnecessary. In general, it
appears the public understood the
proposal and was able to provide
comments in a timely fashion. Of the
approximately 9,650 comments that
were received, only two sought an
extension of the comment period, and
only one of those requested a hearing.
In addition, those two commenters did
file specific and substantive comments
within the 60-day comment period.
3. Implementation
A number of commenters raised
issues associated with the
implementation of the rule, including
the ability of the agencies to effectively
enforce, monitor, and budget for it, as
well as the appropriate exercise of
discretion on behalf of the agencies.
Several commenters indicated that the
agencies need to dedicate enough staff
and other resources necessary to
effectively enforce the rule. One
commenter specifically recommended
that the agencies request the necessary
funding from Congress to allow effective
implementation. Another commenter
specifically mentioned the need for the
agencies (or States or local governments)
to monitor activities not requiring a
4567
permit, to determine if they were in fact
not resulting in a discharge. One of
these commenters supported review and
documentation of completed projects
determined a priori to not result in a
discharge, to ensure that in fact no
discharge resulted. One commenter who
supported the objective of the proposed
rule nonetheless recommended that we
streamline the permitting process
associated with activities that may
involve incidental fallback. Another
commenter specifically cited concern
that the Corps would not be able to
efficiently process permits and asserted
that the processing of Nationwide
General Permits is not as efficient as the
agencies contend.
We concur with the commenters who
stated that it was important for us to
have adequate resources to effectively
enforce, monitor, and otherwise
implement the proposed rule.
Consistent with agency priorities for
aquatic resource protection and our
overall missions, we do propose budgets
to adequately accomplish our CWA
statutory objectives. Effective
enforcement and monitoring is an
important part of the section 404
regulatory program. We will coordinate
with State and local partners to ensure
that today’s rule, as well as wetlands
regulations, in general, have effective
compliance. Over the last two years,
unreported Tulloch activities presented
a challenge to us in obtaining
information on the extent and nature of
wetlands destruction that has occurred
following the NMA decision. While
many of these challenges remain, we
believe that satisfactory monitoring, in
cooperation with others, can be
accomplished to adequately track the
results of today’s rule. We agree that
pre-project information alone should
not necessarily be the basis for
concluding that an activity results only
in incidental fallback and that other
measures, such as field investigation or
site visits, may be needed to assess
whether an activity has actually resulted
in any regulable discharges.
The agencies’ goal is to work
cooperatively with the public to ensure
that their activities in the Nation’s
waters are fully consistent with the
requirements of the Act and its
implementing regulations, including
today’s rule. The Corps of Engineers is
the principal contact for the public both
in the context of responding to
questions that arise prior to conducting
any proposed activity in waters of the
U.S., as well as monitoring permitted
and unpermitted activities as they
proceed in waters to verify compliance
with permit conditions or, in the case of
unpermitted activities, to ensure that no
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regulable discharge takes place.
Consistent with its statutory
responsibilities and relevant
Memoranda of Agreement between EPA
and the Corps, EPA also may serve as
the lead agency in determining whether
a regulable discharge has occurred.
It is a more effective use of agency
resources and more efficient for project
proponents to coordinate with the Corps
before an activity in waters of the U.S.
occurs to determine whether or not the
project triggers the need for a CWA
permit. We strongly recommend that
anyone proposing projects which, for
example, involve earth-moving
activities using mechanized equipment
such as bulldozers or backhoes contact
the Corps well in advance of the project
to determine whether or not a regulable
discharge will occur. As appropriate,
the Corps will also be involved in
working with the public on a projectspecific
basis to monitor ongoing or
completed projects which proceed
without a section 404 permit through
site visits, remote sensing, field
investigations and so forth to verify that
no regulable discharges have occurred.
With respect to streamlining the
permit process for discharges that may
involve incidental fallback, we note that
neither the proposal nor today’s rule
establishes new procedural or
informational requirements. In addition,
we have provided additional discussion
in today’s preamble (see section II C) as
well as a descriptive definition of
incidental fallback in order to clarify the
factors and information relevant to
making the determination of incidental
fallback versus regulable discharge.
Given that case-specific evidence
regarding whether an activity results
only in incidental fallback will be
considered, general authorizations
based on a common set of circumstances
would be inappropriate.
We have undertaken a number of
successful efforts to ensure that
activities regulated under the section
404 program are evaluated in an
efficient manner, while ensuring
environmental protection. In particular,
with regard to the comment on the
development and use of Nationwide
General permits, such permits have
provided an efficient process for
allowing discharges with truly minimal
impacts to move forward with little
regulatory review, consistent with
conditions that provide for aquatic
resource protection. Despite successive
annual increases in the use of general
permits over the last ten years,
processing times have remained low.
Some 63,780 general permits required a
priori action on the part of the Corps in
Fiscal Year 2000 (as compared with
approximately 4,313 individual
permits), and these were evaluated in an
average time of only 19 days.
A number of commenters addressed
the issue of discretion by the agencies
in implementing today’s rule. The
majority of these commenters advocated
that discretion on the part of Corps
Districts should be minimized. Several
commenters stressed the need for
consistent interpretation and
application of the rule, citing the fact
that several State and local jurisdictions
have multiple Corps Districts. Other
commenters noted that national
guidance or consultation with the
Headquarters offices of the agencies
should be required, particularly if any
local operating procedures for the rule
are developed. One commenter
recommended that Corps field staff
document all communications with
potential dischargers and submit such
information to Corps and EPA
Headquarters for periodic review. One
commenter indicated that if any
determination is a ‘‘close call’’ with
regard to whether or not a discharge
constitutes incidental fallback, it should
be considered regulated in order to err
on the side of protecting wetlands. One
commenter asked for clarification that
previous understandings with Corps
Districts regarding certain ‘‘Tulloch’’
activities would remain in effect,
specifically mentioning the preamble
text in the proposed rule regarding the
cutting of vegetation, as well as the use
of vehicles and other ‘‘landclearing and
excavation practices that have been
deemed to fall within the exclusions . .
. under the Tulloch Rule.’’ Another
commenter provided a specific example
of guidance provided by a District that
the commenter asserted ran counter to
the agencies interpretation of the NMA
decision: that entities ‘‘may engage in
instream mining and dredging if the
intent of the work is to create a
discharge of dredged material that
results only in incidental fallback.’’
We concur with those commenters
that advocate consistent implementation
of today’s rule across Corps Districts,
but also recognize that the case-specific
nature of incidental fallback
determinations necessitates some
element of discretion. We have
developed guidance on program
implementation in light of the AMC and
NMA decisions (issued on April 11,
1997, and updated on July 10, 1998), as
well as provided further guidance in the
May 10, 1999, rulemaking and today’s
rulemaking action. As additional issues
are raised in the application of today’s
rule that lend themselves to additional
guidance, we will provide such
guidance. Moreover, to the extent that
regional circumstances allow regional
guidance to be provided on
circumstances common to a particular
part of the country, we will provide that
as well. In the preparation of any
regional guidance and in the
consideration of ‘‘close calls,’’ our
headquarters will provide oversight and
review to assist our field staff in
reaching determinations that are
consistent with governing law.
With respect to previous
understandings with Corps Districts
regarding the regulation of certain
‘‘Tulloch’’ activities, today’s rule
describes how potential discharges will
be addressed. While the lack of specific
details in many of the specific
comments prevents us from making a
determination here, we can clarify that
the cutting of vegetation above the roots
is not regulated as a discharge of
dredged material under section 404. 33
CFR 323.2(d)(2)(ii) and 40 CFR 232.2.
Likewise, driving vehicles such as cars,
off-road vehicles, or farm tractors
through a wetland in a manner in which
such vehicle is designed to be used
generally is not subject to regulation
under CWA section 404. See our August
4, 1995, guidance entitled
‘‘Applicability of Clean Water Act
Section 404 to Vehicle Use in Waters of
the U.S.’’ Landclearing and excavation
practices are discussed above in section
III C of today’s preamble. With respect
to the comment on guidance said to
have been provided by a District that
entities ‘‘may engage in instream mining
and dredging if the intent of the work
is to create a discharge of dredged
material that results only in incidental
fallback,’’ the proper consideration is
not the intent of the discharger, but
whether, in fact, the activity results in
only incidental fallback.
G. Need to Amend CWA
One commenter, while disagreeing
with the NMA decision and its
reasoning, indicated that besides
rulemaking, the agencies also should
seek action by Congress to amend the
CWA so as to clarify agency authority to
fulfill their duty under the CWA to
protect the Nation’s waters. Other
commenters who were opposed to the
proposed rulemaking expressed the
view that it was necessary to obtain an
amendment to the CWA before, or
instead of, proceeding with rulemaking.
Many of these commenters believed that
the proposed rule exceeded the
agencies’ authority under the CWA (see
discussion in section III A of today’s
preamble) and thus could not be
undertaken without an amendment to
the Act. In fact, one such commenter
suggested that language in EPA
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Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
Administrator Carol Browner’s Press
Release announcing the August 16,
2000, proposal reflected a recognition
that the agencies do not have the
authority to undertake the action
reflected in this rule because it called on
‘‘Congress to strengthen the Clean Water
Act to fully protect and restore
America’s wetlands.’’ Others felt that in
light of the uncertainties and
importance of the issue it was
appropriate or even necessary to wait
for Congressional action before
proceeding. We do not agree. We believe
today’s rule is entirely consistent with
the current CWA and relevant case law,
and helps to clarify for the regulated
community and the agencies what
activities are likely to result in regulable
discharges. In keeping with the AMC
and NMA cases and the NAHB Motion
Decision, today’s rule does not provide
for regulation of ‘‘incidental fallback,’’
and a descriptive definition of that term
has been provided in today’s rule
language. The language in the press
release calling on Congress to strengthen
the Act was a recognition that the
statute, as interpreted in AMC and
NMA, does not extend to regulating
incidental fallback. Since today’s rule
does not regulate incidental fallback,
but rather articulates an approach to
determining whether redeposits of
dredged material come within our
existing statutory authority, today’s rule
is consistent with both the press release
and the CWA as interpreted by the
courts.
H. Other Issues
1. Loss Data
As noted in the proposed rule,
available information indicated that
more than 20,000 acres of wetlands
were subject to ditching and more than
150 miles of stream channelized since
the NMA decision. The activities
causing such ‘‘Tulloch’’ losses typically
take place without a CWA section 404
permit, and therefore are not
systematically reported to either EPA or
the Corps of Engineers. As a result, the
numbers are believed to likely
underestimate actual Tulloch losses.
The proposed rule invited the public to
submit further relevant information on
Tulloch losses.
One commenter suggested that this
invitation to submit data on Tulloch
losses was an attempt to establish a post
hoc rationalization for today’s rule. We
disagree. The CWA section 404
establishes a regulatory program for
discharges of dredged material into
waters of the U.S. The Act does not
establish a threshold of impacts after
which an activity will be regulated, nor
as explained in sections III A 4 and III
D of today’s preamble, does today’s rule
use an effects-based test to establish
jurisdiction. As a result, we do not need
aggregate data showing extensive
Tulloch losses or impacts to justify
today’s rulemaking. Such information is
nonetheless helpful in answering
inquiries from the public about the
impacts of Tulloch activities, as well as
in helping focus our limited resources
on important environmental problems.
Many commenters emphasized that
the uncertainty created by the NMA
decision has led to a surge in wetlands
drainage, resulting in deposits into
wetlands of both unregulated
‘‘incidental fallback’’ and regulable
redeposit of dredged material.
Commenters expressed concern that
project proponents may decide that a
section 404 permit is not necessary and
not contact the Corps for verification.
One commenter described a philosophy
of ‘‘if you don’t ask, you don’t have to
worry about being told no.’’ Several
commenters suggested that Tulloch
losses will continue to increase until the
regulatory definition of ‘‘discharge of
dredged material’’ is clarified and
legislation closes the Tulloch
‘‘loophole.’’ We appreciate these
concerns and believe that by setting
forth our expectation as to activities that
are likely to result in regulable
discharges, today’s rule will help
enhance protection of the Nation’s
aquatic resources.
Several commenters asserted that the
proposal’s estimates of Tulloch losses
were conservative, and do not include
impacts from numerous activities
occurring throughout the U.S. For
example, one commenter noted that its
State data underestimated total wetland
acres drained because estimates were
based on less than 80% of identified
sites on which unauthorized drainage
had occurred. Other commenters
emphasized that comprehensive data on
Tulloch losses is difficult because
developers are not contacting the Corps
of Engineers or EPA about many of their
projects. We agree that because Tulloch
losses are not systematically reported,
we have likely underestimated the
magnitude of these losses.
Numerous commenters submitted
information about wetlands and stream
losses since the decision in NMA, and
emphasized that impacts are national in
scope. One commenter noted that
Tulloch losses have been reported in
some of the six ecoregions in the U.S.
that have been targeted for special
investment due to their biological
diversity, and expressed concern that
future losses in these key regions could
have serious impacts on tourism,
4569
fishing, and other industries reliant on
ecological resources. Many commenters
highlighted Tulloch losses in their
areas, or described aquatic resources
that could be destroyed by future
projects unregulated due to the
‘‘Tulloch loophole.’’ These examples
illustrate the nationwide implications of
the NMA decision. Descriptions were
received of losses in Arkansas,
California, Connecticut, Georgia, Iowa,
Kentucky, Louisiana, Mississippi,
Missouri, Nebraska, New York, North
Carolina, Ohio, Oregon, Tennessee,
Wisconsin, and Virginia, among others.
Public comments providing these
examples are included in the record for
today’s rule.
Many commenters discussed the
environmental effects of Tulloch losses.
Some commenters noted that extensive
ditching and drainage of wetlands had
resulted in siltation, sedimentation, and
turbidity violations in designated
shellfish waters, primary and secondary
fishery nursery areas, and other
sensitive coastal and estuarine waters.
Commenters described potential adverse
effects of instream mining on
anadromous fish habitat in the Pacific
Northwest and other regions. Several
commenters expressed concern about
the potential impacts on prairie
potholes and other wetlands that
provide important habitat for migratory
waterfowl. Several commenters
expressed concern about impacts on
neighbors of unregulated wetlands
drainage. Other adverse environmental
effects from Tulloch losses described by
commenters included: flooding of
neighboring businesses, homes and
farms; degradation of receiving waters;
shellfish bed closures; degradation of
drinking water supplies; loss of critical
habitat; loss of aesthetics; loss of
recreational activities such as bird
watching; and increased toxics loadings
from disturbed sediments.
Several commenters discussed the
environmental impacts of the discharge
of dredged material. One commenter
quoted the court decision in Deaton,
noting that the environmental impacts
from the discharge of dredged material
‘‘[a]re no less harmful when the dredged
spoil is redeposited in the same wetland
from which it was excavated. The
effects of hydrology and the
environment are the same.’’ The adverse
environmental impacts of discharge
described by commenters included such
effects as: increased turbidity; reduced
light penetration; mortality of aquatic
plants and animals; depletion of
dissolved oxygen; resuspension of
contaminants; release of pollutants
(heavy metals, nutrients, and other
chemicals) from suspended material;
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4570 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
biological uptake of pollutants;
sedimentation and smothering of
benthic organisms; algal population
explosions; fish kills; nuisance odors;
and a decline in biodiversity. As we
noted in our discussion of the
comments concerning the use of an
effects based test to establish
jurisdiction (see section III A 1 d of
today’s preamble), today’s rule does not
attempt to regulate activities beyond the
scope of the CWA or base our
jurisdiction on effects.
Some commenters characterized as
unsubstantiated the preamble’s
estimates of wetland acres lost and
stream miles channelized after the
Tulloch Rule’s invalidation. One
commenter also suggested that data on
Tulloch losses should be grouped by
industry category. We agree that precise
comprehensive data on Tulloch impacts
is difficult to collect. The estimates
discussed in the proposal reflect
projects that have come to the attention
of agencies’ field offices, through field
observations, individual reports, and/or
newspapers and other information
sources. We believe that the preamble
estimates of Tulloch losses are
conservative, because persons
undertaking such activities often
proceed under the assumption that no
authorization from the Corps is
required. The proposal’s request for
information on Tulloch losses is
intended to help ensure available data is
as complete as possible. We do not
agree, however, that the collection and
categorization of data by industry is
necessary, because today’s rule does not
regulate by industry category but on the
basis of discharges to waters of the U.S.
One commenter asserted that Tulloch
losses have been more than offset by
mitigation required for permitted losses,
because the preamble to the proposal
cites estimates of over 20,000 acres of
unregulated wetlands loss after
invalidation of the Tulloch Rule, plus
an estimated 21,500 acres of wetlands
lost through authorized activities in
1999, with 46,000 acres of
compensatory mitigation obtained in
1999. However, only permitted losses
resulted in obtaining compensatory
mitigation. Compensatory mitigation
ratios for permitted losses are typically
higher than 1:1 to address a variety of
factors considered during permit
evaluation, such as the expected
likelihood of success; the percentage of
restoration, enhancement, and/or
preservation intended; the temporal loss
of functions and values before the
mitigation is fully functioning; and
other relevant considerations. Tulloch
losses, on the other hand, involve
activities which are not subject to
environmental review or compensatory
mitigation. Thus, the compensatory
mitigation figures reported in the
proposed rule’s preamble were designed
to offset permitted losses only, not
Tulloch losses.
One commenter disagreed about
implications of wetlands losses,
expressing doubt about whether
wetlands losses might result in a
potential for increased flooding, and
characterizing the link between the two
as an unsupported assumption. We
note, however, that an extensive body of
scientific literature indicates that
wetlands typically store water at least
temporarily, keeping it from flowing
further downhill and downstream,
thereby helping reduce the frequency
and severity of flooding. For example,
the U.S. Geological Survey’s National
Water Summary on Wetlands Resources
(1996) notes that ‘‘[i]n drainage basins
with flat terrain that contains many
depressions (for example, the prairie
potholes and playa lake regions), lakes
and wetlands store large volumes of
snowmelt and (or) runoff. These
wetlands have no natural outlets, and
therefore this water is retained and does
not contribute to local or regional
flooding.’’ Other studies, such as the
1994 report by the Interagency
Floodplain Management Review
Committee, similarly have found links
between wetlands losses and flooding.
Sharing the Challenge: Floodplain
Management Into the 21st Century, at
Vol. 1, pg. ix; Vol. V at pp 79–88.
2. Miscellaneous Issues
One commenter raised an issue with
respect to whether or not snow plowed
into headwater creeks would be
regulated by today’s rule. Although we
recognize that other Federal or State
requirements may govern such an
activity, we do not regulate snow
plowing into waters of the U.S. under
section 404. Today’s rule addresses
discharges of dredged material, which
snow is not. However, if during a snow
removal operation, snowplows, front
loaders, bulldozers, or similar
equipment discharge gravel, sand, or
other material into waters of the U.S. or
move sediment or soil to new locations
within a water of the U.S., then such
activities would be regulated under
section 404.
Some commenters raised concerns
about the definition of ‘‘waters of the
U.S.,’’ expressing the view that the term
is very broad and may be overly
inclusive. Today’s rule clarifies the
definition of the term ‘‘discharge of
dredged material’’ regulated under CWA
section 404. It does not address the
definition or scope of ‘‘waters of the
U.S.’’ We are contemplating initiating
rulemaking to clarify the definition of
‘‘waters of the U.S.’’ (see the Unified
Regulatory Agenda, 65 FR 23574 (April
24, 2000)), and would encourage public
comments on a proposed definition at
that time. We also note issues related to
the scope of ‘‘waters of the U.S.’’ are
currently pending before the Supreme
Court in Solid Waste Agency of
Northern Cook County v. U.S. Army
Corps of Engineers (No. 99–1178)
(SWANCC).
One commenter indicated support for
the deletion of the ‘‘grandfather’’
provision that was a part of the previous
definition of dredged material. We
agree, and today’s final rule deletes that
provision as being out of date and no
longer necessary.
A number of commenters raised
issues that, while related to wetlands
regulation, were not germane to the
proposed rule. Examples include
comments regarding delineation
methodology or geographic jurisdiction
of the section 404 program, fill material
regulation or the agencies proposed
rulemaking regarding the definition of
fill material, and general statements
about section 404 regulation. These
comments have been made available to
other relevant dockets or addressed, as
appropriate, in the record for today’s
rule.
3. Economic Issues
Many commenters opposed to the rule
expressed concern over its economic
effects. Some of the commenters raising
economic concerns believed that the
proposal would have regulated
‘‘incidental fallback’’ or was a return to
the Tulloch Rule invalidated by the
court in AMC and NMA. Many of the
comments raising economic issues
questioned the discussion in the
proposed rule’s preamble that it did not
alter or enlarge section 404 program
jurisdiction or create information
requirements. Other commenters
expressed concern with the expense and
difficulty of rebutting the presumption
contained in the proposed rule,
especially when, in their view, this was
a standardless proposition. Another
asserted their belief that the reference in
the proposed rule preamble to
‘‘potentially’’ regulated entities was
misleading, as all persons engaging in
excavation activities listed in the rule
would be regulated. Some of the
commenters believed the proposal
would have an annual economic effect
of more than $100 million dollars, and
that issuance of the proposal without a
detailed economic analysis or
consulting with affected entities
violated the requirements of the
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Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
Regulatory Flexibility Act (RFA) as
Amended by the Small Business
Regulatory Enforcement Fairness Act or
the Unfunded Mandates Reform Act
(UMRA). Some of the commenters
expressed concern that, coupled with
the changes made in the Corps
Nationwide Permit Program, the
proposal would result in increased
delays in obtaining authorizations; one
commenter believed the proposal
somehow superceded existing
Nationwide Permits. Others questioned
how the proposed rule could be deemed
to have small economic effects when the
preamble to the proposal noted upwards
of 20,000 acres of wetlands were subject
to ditching and more than 150 miles of
streams channelized. Others questioned
why, if the rule was not economically
significant, it was deemed a ‘‘significant
regulatory action’’ for purposes of
Executive Order 12866. One commenter
expressed concern over the absence of a
grandfather provision.
We continue to believe that the
economic impacts of the rule will be
insignificant. While some of the
commenters expressing concern with
economic impacts believed they would
have to consult in advance with the
Corps or that all excavation activities
would be subject to regulation, this is
not the case. Nothing in today’s rule
alters the current regulatory provisions
that exclude incidental fallback from
regulation as a discharge, provisions
which were found to comply with the
AMC and NMA decisions by the court
in its NAHB Motion Decision. Today’s
rule does not alter that status quo, and
we thus do not agree with commenters
whose economic concerns were
premised on the proposal somehow
enlarging program jurisdiction or
reinstating the invalidated Tulloch Rule.
See also section III A of today’s
preamble for further discussion.
Moreover, as noted in section II C of
today’s preamble, the final rule has been
clarified in a number of respects to
make clear it is not creating or imposing
new process or information
requirements and will not result in
substantially increased workloads. First,
it no longer uses a rebuttable
presumption. Second, the final rule has
been clarified to expressly provide that
it does not alter any burden in any
administrative or judicial proceeding
under the CWA. Finally, we have
provided a descriptive definition of
incidental fallback which helps to
clarify for both the regulated community
and regulatory staff the type of
redeposits which are not subject to
regulation. In this respect, it may
actually reduce costs for the potentially
regulated entities conscientiously
attempting to comply with the existing
regulations. Moreover, as noted and
discussed numerous times in today’s
preamble, the final rule continues to
provide for project-specific
considerations in determining if more
than incidental fallback results. In this
regard, the proposed rule’s preamble
reference to ‘‘potentially’’ regulated
entities was intended to convey this
case-by-case nature, and the final rule
preamble thus continues to use that
formulation. For all of these reasons, we
continue to believe that today’s rule
does not have substantial economic
effects, and does not trigger the
requirements of the RFA as amended or
UMRA.
Today’s rule does not affect section
404 Nationwide permits for dredged
material discharges. Rather, it clarifies
the types of activities which we regard
as being likely to result in regulable
discharges. Where only incidental
fallback results, a regulable discharge of
dredged material does not occur, and
there is no obligation to obtain coverage
under either an individual or a
Nationwide permit. Some of the
commenters expressed concern over
lengthy permit review times under
Nationwide and individual permits; we
do not believe that the facts warrant
these concerns and have included the
most recent available statistics on
permit review time in the administrative
record for informational purposes,
although, as just noted, the rule does not
alter existing requirements for permit
coverage. With regard to commenters
raising concerns over the economic
effects of changes that have been made
in the Nationwide permit program (see
65 FR 12818), although outside the
scope of today’s rule, we note that the
Corps has prepared and is continuing to
work on economic documentation
related to that program.
We do not believe there is any
inconsistency in the discussion of
Tulloch losses in the proposed rule’s
preamble and the conclusion that the
rule will not have significant economic
effects. As evidenced by photos from
field visits, some of those losses were
accompanied by substantial relocation
and movement of dredged material, and
thus seem to reflect the mistaken belief
that any excavation or drainage activity
is exempt from regulation under CWA
section 404, regardless of the presence
of a discharge. Activities resulting in a
discharge of dredged material already
are subject to regulation under CWA
section 404 and today’s rule does not
alter this jurisdictional prerequisite.
With regard to questions concerning
consistency of our conclusion that the
rule does not have significant economic
4571
impacts even though it was submitted
for review under Executive Order
12866, we have clarified in today’s
preamble (see section IV B below) that
this submittal is not made on the basis
of economic effects, but rather on the
portion of that Executive Order
addressing, among other things, rules
which involve legal or policy issues
arising out of legal mandates or the
President’s priorities. In light of past
litigation challenging the 1993 Tulloch
Rule and the importance of effectively
protecting our Nation’s aquatic
resources, the proposed and final rules
were submitted for review under
Executive Order 12866. Finally, with
regard to the commenter expressing
concern over the absence of a
grandfather provision, we have not
included one as today’s rule still
provides for consideration of projectspecific
information, and does not
create new substantive or procedural
requirements. We thus do not believe a
grandfather provision is appropriate.
4. Tribal and Federalism Issues
Several commenters raised concerns
that the proposed rule would have
substantial direct effects on States, and
so is subject to the ‘‘Federalism’’
Executive Order 13132 (64 FR 43255
(August 10, 1999)). One commenter
additionally noted that the proposed
rule imposes significant compliance
costs on Tribal governments, and
therefore must comply with the
consultation requirements of Executive
Order 13084. Some commenters were
concerned specifically about the
potential information burden of
rebutting the presumption. We disagree
that today’s rule will have a substantial
direct impact on States or impose
significant compliance costs on Tribes.
Today’s rule does not change CWA
section 404 program jurisdiction, nor
affect a discharger’s obligation to obtain
a section 404 permit for discharges of
dredged material into waters of the U.S.
Section 404 always has regulated the
‘‘discharge of dredged material.’’
Today’s rule simply clarifies program
expectations of what activities are likely
to result in a regulable discharge. In
addition, today’s rule does not use the
proposal’s rebuttable presumption
formulation, and has been clarified to
expressly state it does not shift any
burden in any administrative or judicial
proceeding under the CWA.
Two commenters suggested that the
CWA section 404 program itself was
inconsistent with federalism principles,
because it imposed on the traditional
State area of regulating land use or is
only weakly connected to a Federal
responsibility. Such comments are
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4572 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
beyond the scope of today’s rulemaking.
However, we do not agree that the
section 404 program is inconsistent with
federalism principles. Controlling the
impacts of pollution and protecting
natural resources has long been a matter
of joint Federal and State concern, and
the Federal government long has
legislated in the field of environmental
pollution control and resource
protection. Section 404 does not
constitute conventional land use
planning or zoning, but instead is a form
of environmental protection and
pollution control that leaves the
ultimate determination of land use to
State and local authorities consistent
with Federal pollution control
requirements. In a case involving
impacts of mining on Federal lands, the
U.S. Supreme Court expressed the
distinction this way: ‘‘Land use
planning in essence chooses particular
uses for the land; environmental
regulation, at its core, does not mandate
particular uses of the land but requires
only that, however the land is used,
damage to the environment is kept
within prescribed limits.’’ (California
Coastal Commission v. Granite Rock
Co., 480 U.S. 572, 587 (1987)). Section
404 does not dictate the particular use
for a parcel of property; it regulates the
manner in which the proposed use can
be accomplished by avoiding and/or
mitigating the environmental impacts of
a discharge of dredged or fill material
into waters of the U.S.
One commenter argued that the
proposed rule unlawfully expanded
Constitutional limits to the Corps’
ability to protect biological resources, by
including protection of habitat with
significant biological value but little or
no commercial value. The commenter
stated that such habitat does not involve
interstate commerce, and as a result is
beyond Federal powers and should be
protected by State and local
governments. This issue is not within
the scope of today’s rulemaking and
raises questions about the definition of
‘‘waters of the U.S.’’ which are currently
pending before the U.S. Supreme Court
in SWANNC. In addition, nothing in
today’s rule limits a State or local
government’s ability to protect habitat
and other resources.
One commenter suggested that
Federal regulation is not necessary
because ample State and local authority
exists to protect wetlands. Again, this
issue is beyond the scope of today’s
rulemaking. We disagree about the lack
of a need for a Federal presence in
wetlands regulation. The Federal
wetlands program both addresses
interstate issues arising from wetlands
protection, and helps support the States’
own environmental objectives. For
example, the section 404 program helps
protect States from the effects that
filling of wetlands in one State may
have on water quality, flood control,
and wildlife in another State. States
with wetlands programs might
coordinate closely with the Federal
program, as a means of avoiding
duplication and reducing any
administrative burden. For example,
States might choose to coordinate their
environmental studies with Federal
initiatives or to use Federal expertise in
identification and mapping of wetlands.
We also note that in the SWANCC case,
eight states filed an amicus brief
explaining the benefits of 404 regulation
to the states and expressing their
support for such regulation (CA, IA, ME,
NJ, OK, OR, VT, and WA).
One commenter argued that no
Federal reason has been demonstrated
for regulating activities such as ditching
and channelization, and the proposal
should not be finalized until an
economic analysis is completed that
supports a valid Federal reason to
‘‘expand’’ the Corps’ authority. Another
commenter noted that the NMA
decision has forced a number of States
to incur significant financial costs by
acting to stem further wetlands
destruction, and that limited funding
has prevented some States from
stepping into the post-NMA loophole.
We note that today’s rule does not
regulate on the basis of ditching and
drainage activities, but instead on the
presence of a discharge of dredged
material into waters of the U.S., as
called for under the CWA. Today’s rule
does not expand the scope of CWA
section 404 program jurisdiction, nor
establish a new program or new
required processes affecting the
regulated community. For these reasons,
we do not agree that today’s rule
requires an economic analysis such as
that called for by the commenter.
We note that many Federal
environmental programs, including
CWA section 404, were designed by
Congress to be administered at the State
or Tribal level whenever possible. The
clear intent of this design is to use the
strengths of the Federal and State and
Tribal governments in a partnership to
protect public health and the Nation’s
resources. EPA has issued regulations
governing State and Tribal assumption
of the section 404 program (40 CFR part
233). The relationship between EPA and
the States and Tribes under assumption
of the section 404 Program is intended
to be a partnership. With assumption,
States and Tribes assume primary
responsibility for day-to-day program
operations. EPA is to provide consistent
environmental leadership at the
national level, develop general program
frameworks, establish standards as
required by the CWA, provide technical
support to States and Tribes in
maintaining high quality programs, and
ensure national compliance with
environmental quality standards.
Currently two States (New Jersey and
Michigan) have assumed the section 404
program.
One Tribal commenter felt that the
proposed rule impinges on Tribal
sovereignty, in that it does not allow
Tribal decisions to undertake ditching
activities for flood control without
Federal review. This commenter also
contended that the agencies did not
comply with Executive Order 13084
which would have required that the
agencies consult with the Tribes on the
proposed rule under certain
circumstances. The commenter stated
that the agencies’ conclusion that the
proposed rule will not significantly
effect Indian communities nor impose
significant compliance costs on Indian
Tribal governments is erroneous. As
mentioned above, today’s rule does not
change program jurisdiction. In
addition, it does not create any new
formal process. In fact, unlike the
proposal, the final rule does not employ
a rebuttable presumption, and also has
been clarified to expressly provide that
it does not shift any burden in any
administrative or judicial proceeding
under the CWA. We thus believe the
rule does not create an impingement to
Tribal sovereignty or significantly affect
Tribal communities.
IV. Administrative Requirements
A. Paperwork Reduction Act
This action does not impose any new
information collection burden or alter or
establish new record keeping or
reporting requirements. Thus, this
action is not subject to the Paperwork
Reduction Act.
B. Executive Order 12866
Under Executive Order 12866 (58 FR
51735, October 4, 1993), we must
determine whether the regulatory action
is ‘‘significant’’ and therefore subject to
review by the Office of Management and
Budget (OMB) and the requirements of
the Executive Order. The Order defines
‘‘significant regulatory action’’ as one
that is likely to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more, or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
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State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
Pursuant to the terms of Executive
Order 12866, it has been determined
that this rule is a ‘‘significant regulatory
action’’ in light of the provisions of
paragraph (4) above. As such, this action
was submitted to OMB for review.
Changes made in response to OMB
suggestions or recommendations are
documented in the public record.
C. Executive Order 13132 (Federalism).
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires us to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’
This rule does not have federalism
implications. As explained in sections II
and III of today’s preamble, the rule
does not alter or enlarge section 404
program jurisdiction and therefore does
not affect a discharger’s (including State
dischargers) obligation to obtain a
section 404 permit for any discharge of
dredged material into waters of the U.S.
Rather, the rule identifies what types of
activities are likely to give rise to an
obligation to obtain such a permit under
the definition of ‘‘discharge of dredged
material’’ contained in our existing
regulations. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. Thus, Executive
Order 13132 does not apply to this rule.
D. Regulatory Flexibility Act (RFA) as
Amended by the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. 601 et seq.
The RFA generally requires an agency
to prepare a regulatory flexibility
analysis of any rule subject to noticeand-comment
rulemaking requirements
under the Administrative Procedure Act
or any other statute unless the agency
certifies that the rule will not have a
significant economic impact on a
substantial number of small entities.
Small entities include small businesses,
small organizations and small
governmental jurisdictions.
For purposes of assessing the impacts
of today’s rule on small entities, a small
entity is defined as: (1) A small business
based on SBA size standards; (2) a small
governmental jurisdiction that is a
government of a city, county, town,
school district, or special district with a
population of less than 50,000; and (3)
a small organization that is any not-forprofit
enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of today’s rule on small entities,
we certify that this action will not have
a significant economic impact on a
substantial number of small entities. As
explained in sections II and III of
today’s preamble, the rule does not alter
or enlarge section 404 program
jurisdiction and therefore does not
change any discharger’s obligation to
obtain a section 404 permit for any
discharge of dredged material into
waters of the U.S. Rather, the rule
identifies what types of activities are
likely to give rise to an obligation to
obtain such a permit under the existing
regulatory program. Moreover, we also
do not anticipate that provision of
project-specific information that a
regulable discharge does not occur
would result in significant costs.
E. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and Tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with ‘‘Federal mandates’’ that may
result in expenditures to State, local,
and Tribal governments, in the
aggregate, or to the private sector, of
$100 million or more in any one year.
Before promulgating an EPA rule for
which a written statement is needed,
4573
section 205 of the UMRA generally
requires EPA to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
most cost-effective or least burdensome
alternative that achieves the objectives
of the rule. The provisions of section
205 do not apply when they are
inconsistent with applicable law.
Moreover, section 205 allows EPA to
adopt an alternative other than the least
costly, most cost-effective or least
burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including Tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
We have determined that this rule
does not contain a Federal mandate that
may result in expenditures of $100
million or more for State, local, and
Tribal governments, in the aggregate, or
the private sector in any one year. As
explained in sections II and III of
today’s preamble, the rule does not alter
or enlarge section 404 program
jurisdiction and therefore does not affect
a discharger’s obligation to obtain a
section 404 permit for any discharge of
dredged material into waters of the U.S.
Rather, the rule identifies what types of
activities are likely to give rise to an
obligation to obtain such a permit under
the definition of ‘‘discharge of dredged
material’’ contained in our existing
regulations. Thus, today’s rule is not
subject to the requirements of sections
202 and 205 of the UMRA. For the same
reasons, we have determined that this
rule contains no regulatory
requirements that might significantly or
uniquely affect small governments.
Thus, today’s rule is not subject to the
requirements of section 203 of UMRA.
F. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (the NTTAA), Public Law
104–113, section 12(d) (15 U.S.C. 272
note), directs us to use voluntary
consensus standards in our regulatory
activities unless to do so would be
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4574 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standards bodies. The NTTAA directs
us to provide Congress, through OMB,
explanations when we decide not to use
available and applicable voluntary
consensus standards.
This rule does not involve technical
standards. Therefore, we did not
considering the use of any voluntary
consensus standards.
G. Executive Order 13045
Executive Order 13045, entitled
Protection of Children From
Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997),
applies to any rule that: (1) Was
initiated after April 21, 1997, or for
which a notice of proposed rulemaking
was published after April 21, 1998; (2)
is determined to be ‘‘economically
significant’’ as defined under Executive
Order 12866, and (3) concerns an
environmental health or safety risk that
we have reason to believe may have a
disproportionate effect on children. If
the regulatory action meets all three
criteria, we must evaluate the
environmental health or safety effects of
the planned rule on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives that
we considered.
This final rule is not subject to
Executive Order 13045 because it is not
an economically significant regulatory
action as defined by Executive Order
12866. As explained in sections II and
III of today’s preamble, the rule does not
alter or enlarge section 404 program
jurisdiction and therefore does not affect
a discharger’s obligation to obtain a
section 404 permit for any discharge of
dredged material into waters of the U.S.
Rather, the rule identifies what types of
activities are likely to give rise to an
obligation to obtain such a permit under
the definition of ‘‘discharge of dredged
material’’ contained in our existing
regulations. Furthermore, it does not
concern an environmental health or
safety risk that we have reason to
believe may have a disproportionate
effect on children.
H. Executive Order 13084
Under Executive Order 13084, we
may not issue a regulation that is not
required by statute, if it significantly or
uniquely affects the communities of
Indian Tribal governments and imposes
substantial direct compliance costs on
those communities, unless the Federal
government provides the funds
necessary to pay the direct compliance
cost incurred by the Tribal governments,
or we consult with those governments.
If we comply by consulting, Executive
Order 13084 requires us to provide the
Office of Management and Budget, in a
separately identified section of the
preamble to the rule, a description of
the extent of our prior consultation with
representatives of affected Tribal
governments, a summary of the nature
of their concerns, and a statement
supporting the need to issue the
regulation. In addition, Executive Order
13084 requires us to develop an
effective process permitting elected
officials and other representatives of
Indian Tribal governments ‘‘to provide
meaningful and timely input in the
development of regulatory policies on
matters that significantly or uniquely
affect their communities.’’
Today’s rule does not significantly or
uniquely affect the communities of
Indian Tribal governments, nor does it
impose significant compliance costs on
them. As explained in sections II and III
of today’s preamble, the rule does not
alter or enlarge section 404 program
jurisdiction and therefore does not affect
a discharger’s obligation to obtain a
section 404 permit for any discharge of
dredged material into waters of the U.S.
Rather, the rule identifies what types of
activities are likely to give rise to an
obligation to obtain such a permit under
the definition of ‘‘discharge of dredged
material’’ contained in our existing
regulations. Accordingly, the
requirements of section 3(b) of
Executive Order 13084 do not apply to
this rule.
I. Environmental Documentation
As required by the National
Environmental Policy Act (NEPA), the
Corps prepares appropriate
environmental documentation for its
activities affecting the quality of the
human environment. The Corps has
made a determination that today’s rule
does not constitute a major Federal
action significantly affecting the quality
of the human environment, and thus
does not require the preparation of an
Environmental Impact Statement (EIS).
One commenter expressed the view that
an Environmental Impact Statement
(EIS) was necessary for the rule.
However, as we noted in the proposed
rule’s preamble, the Corps prepares
appropriate NEPA documents, when
required, covering specific permit
situations. The implementation of
today’s rule would not authorize anyone
(e.g., any landowner or permit
applicant) to perform any work
involving regulated activities in waters
of the U.S. without first seeking and
obtaining an appropriate permit
authorization from the Corps. As
explained in sections II and III of
today’s preamble, the rule does not alter
or enlarge section 404 program
jurisdiction and therefore does not affect
a discharger’s obligation to obtain a
section 404 permit for any discharge of
dredged material into waters of the U.S.
Rather, the rule identifies what types of
activities are likely to give rise to an
obligation to obtain such a permit under
the definition of ‘‘discharge of dredged
material’’ contained in our existing
regulations. Accordingly, the Corps
continues to believe an EIS is not
warranted and has prepared an
environmental assessment (EA) for the
rule.
J. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. We will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This rule is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). This rule
will be effective February 16, 2001.
List of Subjects
33 CFR Part 323
Water pollution control, Waterways.
40 CFR Part 232
Environmental protection,
Intergovernmental relations, Water
pollution control.
Corps of Engineers
33 CFR Chapter II
Accordingly, as set forth in the
preamble 33 CFR part 323 is amended
as set forth below:
PART 323—[AMENDED]
1. The authority citation for part 323
continues to read as follows:
Authority: 33 U.S.C. 1344.
2. Amend section 323.2 as follows:
a. In paragraph (d)(1) introductory
text, remove the words ‘‘paragraph
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Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Rules and Regulations
(d)(2)’’ and add, in their place, the
words ‘‘paragraph (d)(3)’’.
b. Redesignate paragraphs (d)(2)
through (d)(5) as paragraphs (d)(3)
through (d)(6), respectively.
c. Add new paragraph (d)(2).
d. In newly redesignated paragraph
(d)(4), in the first sentence of paragraph
(d)(4)(i) remove each time they appear
the words ‘‘paragraphs (d)(4) and (d)(5)’’
and add, in their place, the words
‘‘paragraphs (d)(5) and (d)(6)’’, remove
paragraph (d)(4)(iii), and redesignate
paragraph (d)(4)(iv) as new paragraph
(d)(4)(iii).
The addition reads as follows:
§ 323.2 Definitions.
* * * * *
(d) * * *
(2)(i) The Corps and EPA regard the
use of mechanized earth-moving
equipment to conduct landclearing,
ditching, channelization, in-stream
mining or other earth-moving activity in
waters of the United States as resulting
in a discharge of dredged material
unless project-specific evidence shows
that the activity results in only
incidental fallback. This paragraph (i)
does not and is not intended to shift any
burden in any administrative or judicial
proceeding under the CWA.
(ii) Incidental fallback is the redeposit
of small volumes of dredged material
that is incidental to excavation activity
in waters of the United States when
such material falls back to substantially
the same place as the initial removal.
Examples of incidental fallback include
soil that is disturbed when dirt is
shoveled and the back-spill that comes
off a bucket when such small volume of
soil or dirt falls into substantially the
same place from which it was initially
removed.
* * * * *
Dated: January 8, 2001.
Joseph W. Westphal,
Assistant Secretary of the Army (Civil Works),
Department of the Army.
Environmental Protection Agency
40 CFR Chapter I
Accordingly, as set forth in the
preamble 40 CFR part 232 is amended
as set forth below:
PART 232—[AMENDED]
1. The authority citation for part 232
continues to read as follows:
Authority: 33 U.S.C. 1344.
2. Amend section 232.2 as follows:
a. In paragraph (1) introductory text of
the definition of ‘‘Discharge of dredged
material’’, remove the words ‘‘paragraph
(2)’’ and add, in their place, the words
‘‘paragraph (3)’’.
b. In the definition of ‘‘Discharge of
dredged material’’, redesignate
paragraphs (2) through (5) as paragraphs
(3) through (6), respectively.
c. In the definition of ‘‘Discharge of
dredged material’’, add new paragraph
(2).
d. In the first sentence of newly
redesignated paragraph (4)(i) remove
each time they appear the words
‘‘paragraphs (4) and (5)’’ and add, in
their place, the words ‘‘paragraphs (5)
and (6)’’, remove paragraph (4)(iii), and
redesignate paragraph (4)(iv) as new
paragraph (4)(iii).
The addition reads as follows:
4575
§ 232.2 Definitions.
* * * * *
Discharge of dredged material * * *
(2)(i) The Corps and EPA regard the
use of mechanized earth-moving
equipment to conduct landclearing,
ditching, channelization, in-stream
mining or other earth-moving activity in
waters of the United States as resulting
in a discharge of dredged material
unless project-specific evidence shows
that the activity results in only
incidental fallback. This paragraph (i)
does not and is not intended to shift any
burden in any administrative or judicial
proceeding under the CWA.
(ii) Incidental fallback is the redeposit
of small volumes of dredged material
that is incidental to excavation activity
in waters of the United States when
such material falls back to substantially
the same place as the initial removal.
Examples of incidental fallback include
soil that is disturbed when dirt is
shoveled and the back-spill that comes
off a bucket when such small volume of
soil or dirt falls into substantially the
same place from which it was initially
removed.
* * * * *
Dated: January 9, 2001.
Carol M. Browner,
Administrator, Environmental Protection
Agency.
[FR Doc. 01–1179 Filed 1–16–01; 8:45 am]
BILLING CODE 6560–50–P
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a citizen’s guide to
TransportationD ecisionmaking
U.S. Department
of Transportation
Federal Highway
Administration
Federal Transit
Administration

A Citizen’s Guide to
Transportation
Decisionmaking
1

2
Introduction
H
ave you ever wondered how decisions
are made about transportation
projects that affect your life? How do
government officials decide where to put a
bus stop, road, or bridge? How are these and
other transportation projects planned? And
how can you make sure your opinions are
heard and considered by the planners, road
designers, elected officials, and other citizens?
The Federal Highway Administration (FHWA)
and Federal Transit Administration (FTA)
wrote this guide to give you the answers to
these and other transportation-related
questions. We hope this guide will help
you understand how transportation
decisions are made at the local, state, and
national levels. We believe that the better
citizens understand the transportation
decisionmaking process, the more certain it
is we will have a transportation system that
is safe, efficient, and responsive to public
needs and concerns about their
communities and the natural environment.
The Federal Highway
Administration (FHWA)
and Federal Transit
Administration (FTA) are
part of the U.S.
Department of
Transportation (USDOT).
USDOT is a federal
government agency that
funds, sets policy for
safety, and provides other
guidance for
transportation by air,
highways, rail, transit, and
water.

4
How the Decisionmaking Starts
F
or many of us, transportation projects
seem to come from nowhere. Others
may vaguely remember a project
“promised” years ago. Too often, too many
people have negative impressions of how
transportation projects come about.
Instead, try comparing the transportation
decisionmaking process to the creative
process for producing a piece of pottery. The
potter begins with a mass of clay and an idea
for the final creation—but as the mass begins
to take shape, there are changes and
adjustments that have to be made, with some
clay added here and there. You, the public, are
involved in the shaping and adding to make
the creation as beautiful and useful as
possible. We, at the FHWA and FTA, want, and
look forward to, your involvement from the
beginning to the end of each transportation
project.
Transportation affects almost every aspect of a
person’s life. With your help, the FHWA and
FTA can do our part to keep the U.S.
transportation system one of the safest and
most efficient in the world! We also want the
system to be one of the most community and
environmentally friendly as well. Please read
this guide, and contact us with any questions
you may have.

This guide only discusses
federal requirements for
the transportation
decisionmaking process.
The federal role is to
provide funds, standards,
and planning for state and
local decisions. The states,
MPOs, and transit
operators make project
decisions. There are other
state, regional, and local
rules and requirements
affecting transportation
decisions that are not
discussed in this guide.
5

6
The Basics of Transportation
Decisionmaking
I
magine any ground transportation:
train, car, bicycle,
wheelchair, or foot. Now,
think about your favorite way to
travel. Which would you use to get
to your destination? Are you
satisfied with your choice? Will
you have any problems using this
method? Would you like more
options?
The process of identifying
transportation problems and
looking for solutions to those
problems is called transportation
planning.
Transportation planning is the job
of professionals who study and
work out the best ways to get you
to . . .
● where you live,
● where you work,
● where you shop,
● where your kids go to school,
● where you take vacations, and
. . . anywhere else
you need to go.

Transportation professionals place a high priority on
getting you to and from your destinations safely and
on time. They are also committed to preserving our
communities and farms, and keeping our air and
water clean.
Transportation decisionmaking looks for ways to
solve current transportation problems while
avoiding future problems. Transportation planners
try to figure out how to get you to and from your
destination safely and on time—not only today, but
also 5, 10, and even 20 years from now. To give you
the best transportation choices, transportation
planners work with many different public and private
groups that provide housing, schools, jobs, and parks.
7

8
The Government and Transportation
Decisionmaking
Transportation decisionmaking is carried out by
several governmental levels:
● State Departments of Transportation
(DOTs) are the largest units of government
that develop transportation plans and projects.
They are responsible for setting the
transportation goals for the state. To do so,
they work with all of the state’s transportation
organizations and local governments. They are
responsible for planning safe and efficient
transportation between cities and towns in the
state.
● Metropolitan Planning Organizations
(MPOs) represent areas with a population of
50,000 people or more. An MPO may have
“council of governments” or “regional
planning commission” in its official name.
Each MPO is different because individual
metropolitan areas are so different. A policy
board, which is comprised of local elected
officials, set an MPO’s policy; but other
groups, such as non-profit organizations,
community organizations, or environmental
organizations, can influence the direction an
MPO follows. The MPOs’ mission is to provide
short and long-term solutions to
transportation and transportation-related
concerns.

Project
Solutions
Monitoring &
Evaluation
STIP/TIP
Non-Project
Solutions
Current
Transportation
System
Long Range
Plan
Visioning
& Goals
Solutions
Future
Needs
● Local governments carry out many
transportation planning functions, such as
scheduling improvements and maintenance
for local streets and roads.
● Transit agencies are public and private
organizations that provide transportation for
the public. Public transportation includes
buses, subways, light rail, commuter rail,
monorail, passenger ferryboats, trolleys,
inclined railways and people movers.
● The Federal Government (U.S. DOT)
reviews the transportation planning and
project activities of the MPOs and state
DOTs. The federal government also provides
advice and training on transportation topics,
ranging from pavement technology to design
to efficient operations of highway and transit
systems. The federal government also
supplies critical funding needed for
transportation planning and projects. At least
every two years, the federal government
approves projects planned for construction
by the state and other state agencies using
federal funds.
9

10
Different Transportation Plans and
Programs
B
efore transportation planners start, the
citizens and officials of a region or a state
must have a long-term vision for
transportation in that area. A vision plan provides
broad goals for what the region or state will look
like and reflects what is important for the future.
To develop a vision, you need to consider several
characteristics of your region, state, or
metropolitan area—and how you expect
these characteristics to change over the next
several years. Here are some characteristics
to consider:
● Projected population growth
● Projected economic changes
● Current and future transportation
needs (air, bicycle, bus, rail, roads,
pedestrian, and water)
● Safety
● Maintenance of transportation
facilities
● Preserving the human and natural
environment
● Quality of life
Some transportation plans
focus strictly on
transportation, while others
are more general, with
transportation just one part
of a larger plan for green
space, parks, and other
uses. Transportation
planning processes often
are complicated because of
the need to cover entire
state and metropolitan
transportation systems. A
state plan will also include
regional, metropolitan, and
other local transportation
plans.

Once you have reviewed and established the
goals for your vision, you have a foundation
for plans to improve the transportation
system for your area. These long-range plans
provide transportation solutions that cover
20 or more years. The solutions can range
from a new traffic signal system to a
pedestrian pathway or a new bus line to a
completely new road project.
11

12
Putting the Plans in Place
T
ransportation planners help the
public and elected officials translate
the vision into long-range
transportation plans. Planners look at
different transportation
alternatives and work with the
public to select the alternatives
that make the most sense for
their areas. Sometimes they use
mathematical models to predict
future travel; sometimes they lead
public discussions to get the
opinion of the public and
experts.
These transportation solutions
must be able to keep the air
quality of a state or region safe
for all people in the community.
The Environmental Protection
Agency (EPA) sets maximum safe
amounts of pollution that a
region or state can have in the air.
How much pollution is allowed
from cars, trucks, and buses to
the air will vary depending on the area’s
climate, wind, and other pollution sources
and factors.

Usually, the first product after the long-range
plan is a Statewide Transportation
Improvement Program (STIP) or an
MPOs’ Transportation Improvement
Program (TIP). These improvement
programs are usually developed on a 3-year
cycle. They contain individual transportation
improvements and projects. All projects
must be part of an improvement program to
be implemented. The following chart
illustrates which organizations tend to use
the various plans and projects:
Plan Use by Organization
Vision Long-range TIPSs Project
Organization Planning Plans Planning
State DOTs ✔ ✔ ✔ ✔
MPOs ✔ ✔ ✔
Transit Agencies ✔ ✔
City/Local Trans. Dept. ✔ ✔
13

14
Funding Transportation Projects
B
efore states and MPOs can make improvements in
your area’s transportation system, they must identify
funds that will be readily available over the three-tofive-year
life of the Transportation Improvement Program. Just
as an individual would budget money for short-term family
and home expenses, MPOs and states allocate funds for
specific transportation projects. STIPs and TIPs are important
documents for budgeting the funds needed to make these
transportation improvements possible.

Communities and the Environment in
Transportation Planning
Transportation planning must reflect the desires
of communities, and take into account the
impacts on both the natural and human
environments. Moreover, transportation plans
should help your regions and communities
reach their goals. As previously mentioned, a
project must be included in a TIP for it to be
funded, and plans and programs must comply
with air quality standards established by the
Environmental Protection Agency (EPA).
15

16
Your Role in the Planning Process
S
o how do you fit into the transportation
planning process? Your role in the process is
very important. Without your input—your
ideas—state and local governments cannot have a
true understanding of your community’s needs.
Although some people may think that transportation
officials can get all needed
information on their own, that is
not the case. You may know
information that is more current
or detailed than is available to
transportation professionals. You
may also see things differently
than transportation officials. This
is why it is so important for you
to be involved.
The transportation planning
process is ongoing, nonstop, and
can take many years, so there are
several ways to make
transportation planners aware of
your needs and concerns, and
also help develop transportation
solutions. To make sure that you
are following the latest
developments, you can:

● Put your name on a mailing list to receive
newsletters, updates and other information
from the MPOs and State DOTs.
● Attend meetings of local transportation
boards.
● Provide your input on transportation
plans.
● Volunteer to serve on a citizen focus group
or citizens’ advisory committee.
● Ask a transportation official to attend
your rotary clubs, NAACP, Kiwanis clubs,
community organizations, schools, and
other civic organizations and explain the
process.
● Find out what specific public involvement
opportunities are available in your area by
contacting your MPO, State DOT, transit
agency, local government, and federal
government.
Remember that vision plans, long-range
transportation plans, and transportation
improvement programs are the key documents
that come from transportation planning. These
documents are used to build the foundation for
individual transportation projects. They are all
part of the big transportation picture and are
important to your transportation future. Get
involved!
17

18
Project Development
T
he next step after transportation
planning is project development,
which is also known as project
planning in many areas. Project development
occurs on individual projects, ranging in size
from small (such as new lane striping) to very
large (for example, a new transit project or
highway). But whether small or large, most
projects must first go through the
transportation planning process, appear in
the TIP and/or STIP, have some citizen
involvement, and be approved by
transportation officials. The project
development process is critical because it
links the planning process with the actual
project location, design, and eventual
construction.

20
Goals of Project Development and the
NEPA Process
The goals of the project development stage
are to find out where a project is located
and what it looks like.
Projects that come through a
transportation planning process will
eventually be closely looked at to see how
they might impact the community, the
natural environment, and our health and
welfare. Before any project can move
forward to construction, the FHWA and
FTA may address and comply with more
than 40 laws related to safety and the
environment. These laws cover social,
economic, and environmental (SEE)
concerns ranging from community
cohesion to threatened and endangered
species.To get through this detailed
process, FHWA and FTA use the National
Environmental Policy Act (NEPA) process
to evaluate all SEE concerns with each
individual project.
The National Environmental
Policy Act (NEPA), enacted
in 1969, requires that any
activity or project receiving
federal funding or other
federal approvals (including
transportation projects)
undergo this analysis of
potential impacts. Under
NEPA, FHWA and FTA work
closely with other federal
agencies and state, local,
and tribal governments;
public and private
organizations; and the
public to understand a
project’s impact. This
process involves striking a
delicate balance among
many different factors—
mobility needs, economic
prosperity, health and
environmental protection,
community and
neighborhood preservation,
and quality of life for
present and future
generations.

Documenting Decisions
I
t is important for government
officials to carefully evaluate the
choices available to them when
making transportation decisions. This is why
FHWA and FTA (along with your state DOT)
always document their work and decisions
for the public and for
government agencies to review
and provide input. We prepare
documents before and after
decisions are made so
everyone can see why the
decisions were made and can
also provide input.
In addition to the
documentation just
mentioned, FHWA and FTA
also prepare documents to
meet NEPA requirements.
Since every transportation
project is different, and some
are more complex than others,
FHWA and FTA prepare one or
more of the following
documents for a proposed
project to conform with NEPA
requirements:
21

22
● Environmental Impact Statements (EIS) are
prepared for federal actions that have a significant effect
on the human and natural environment.
● Draft EIS (DEIS) and Final EIS (FEIS) are disclosure
documents that provide a full description of the
proposed project, the existing environment, and
analysis of the anticipated beneficial and adverse
environmental effects of all reasonable alternatives.
● Categorical Exclusions (CE) are prepared for federal
actions that do not have a significant human and
natural environmental effect.
● Environmental Assessments (EA) are prepared for
federal actions where it is not clearly known how
significant the environmental impact might be. If, after
preparing an Environmental Assessment, it is
determined that the project’s impact is significant, an
Environmental Impact Statement is then prepared. If
not, a finding of “no significant impact” is
documented.
● Record of Decision (ROD) is a concise decision
document for an environmental impact statement that
states the decision (selected alternative or choice),
other alternatives considered, and mitigation adopted
for the selected alternative or choice.
● Finding of No Significant Impact (FONSI) is a
statement indicating that a project was found to have
no significant impacts on the quality of the human
environment and for which an environmental
statement will therefore not be prepared.

Categorical
Exclusion
In preparing an EIS, CE or EA for projects, FHWA
and FTA must consider all of the relevant SEE
impacts and pursue public involvement. In
considering the potential SEE impacts of a project
or activity, FHWA and FTA work with other federal,
state and local agencies to consider their interests.
Although the size and complexity of the three
levels of NEPA documentation are different, they
all serve the same purpose—to achieve better
decisions by making the impact of choices known
and by involving you, the public, in making
transportation decisions.
Project Development Process
No
Project and
Non-Project
Solutions
Any
Significant
Impact?
Yes
D E I S
F E I S
Uncertain
Yes
Environmental
Assessment
Any
Significant
Impact?
No
R O D FONSI
23

24
Your Role in Project
Development
Y
our participation in each step of the
transportation planning process is
key to finding good solutions. You
also have an important role in project
development. You will have history and
knowledge about your local area that
transportation officials might not have, and
you know what is important to you about
your community. Your views and ideas about
proposed transportation solutions at the
project development stage are critical.
Remember, project development is about
finding a location and developing a design
for how the project will look and work.
Perhaps you can recommend ways to avoid,
lessen, or compensate for an impact. We call
this mitigation. Or you may be able to
recommend some special or additional
features that may benefit your community.
These are called enhancements. Mitigation
and enhancements are discussed during
project development.

You can help your
planning organization and
State DOT develop
methods to get your
viewpoint. If there are
better ways to reach your
groups, please let us
know.
Just as with transportation planning, you
should get your name put on the project
mailing list, attend meetings, and invite
a transportation official to your
meetings. During this phase, a citizens
advisory committee may be formed to
give the community direct access to the
project staff and input to the process. On
larger projects, you can expect the
sponsoring agency to have public
hearings, meetings and/or workshops in
the project area.
25

26
We recommend that you get involved early to
have the greatest impact on developing
transportation solutions. Your input, whether
verbal or written, is needed early in the
transportation decisionmaking process to
help shape the quality of life for your
community.
You Can Make a Difference
You are essential to the transportation
decisionmaking process. The earlier you get
involved, the greater your influence will be.
We want you and your family to get to and
from work, school, and play safely and on
time. Please, help us to serve you better.
Thank you!
To find out where you can get involved,
contact your FHWA and FTA office, local
transportation planning organization, or
State Department of Transportation.
The transportation
decisionmaking process is
like a train with a certain
number of stops.
What if three people board
at every stop, and each
person gets a vote on
where the train should
stop. The longer you wait
to board and vote, the
harder it will be to
influence the train route.
It is possible to influence a
project outcome from the
start. It is more difficult
when you join the process
in the latter stages.

I don’t have time.
I’ll wait until
there’s a project in
my community.
I just wanted a
bicycle lane!
V I S I T O U R W E B S I T E S
Planning
FHWA www.fhwa.dot.gov/environment/planning.htm
FTA www.fta.dot.gov/office/planning
NEPA
FHWA www.fhwa.dot.gov/environment/nepa.htm
FTA www.fta.dot.gov/office/planning/envr.htm
Public Involvement
FHWA www.fhwa.dot.gov/environment/pubinv2.htm
FTA www.fta.dot.gov/office/planning/pi.htm
27

28
Glossary
Citizens Advisory Committee—representative stakeholders that meet
regularly to discuss issues of common concern, such as transportation,
and to advise sponsoring agency officials. These groups effectively
interact between citizens and their government.
Categorical Exclusion (CE)—an action that does not individually or
cumulatively have a significant impact on the human environment.
This Categorical Exclusion does not require an Environmental
Assessment nor an Environmental Impact Statement.
Enhancements—activities that assist communities reach social,
cultural, aesthetic and environmental goals as well as help harmonize
the transportation system with the community. Enhancements are part
of the mitigation for project impacts and can include bike and
pedestrian trails, renovating streetscapes, and scenic beautification.
Environmental Assessment (EA)—an interim decision document
prepared for an action where the significance of social, economic, or
environmental impact is not clearly established. If the action is
determined to have significant impact, an Environmental Impact
Statement is then prepared. If no significant impact is determined, a
finding of no significant impact is prepared.
Environmental Impact Statement (EIS)—a document, required
under the National Environmental Policy Act, prepared for an action
that is likely to have significant impact. This document summarizes the
major environmental impacts, outlines issues, examines reasonable
alternatives, and arrives at a record of decision, identifying the selected
alternative for the project.

Federal Highway Administration (FHWA)—a branch of the United
States Department of Transportation that administers the Federal-aid
Highway Program, providing financial assistance to states to construct
and improve highways, urban and rural roads, and bridges. The FHWA
also administers the Federal Lands Highway Program that provides
access to and within national forests, national parks, Indian
reservations and other public lands. The FHWA is headquartered in
Washington, DC, with field offices across the country, including one in
each state capital.
Federal Transit Administration (FTA)—a branch of the United States
Department of Transportation that is the principal source of federal
financial assistance to America’s communities for the planning,
development, and improvement of public or mass transportation
systems. FTA provides leadership, technical assistance, and financial
resources for safe, technologically advanced public transportation to
enhance mobility and accessibility, to improve the nation’s
communities and natural environment, and to strengthen the national
economy. The FTA is headquartered in Washington, DC, with regional
offices in Atlanta, Boston, Chicago, Dallas, Denver, Kansas City, New
York, Philadelphia, San Francisco, and Seattle.
Finding of No Significant Impact (FONSI)—a statement indicating
that a project was found to have no significant impacts on the quality
of the human environment and for which an environmental statement
will therefore not be prepared.
29

30
Long-Range Transportation Plan—a document resulting from a
regional or statewide process of collaboration and consensus on a
region or state’s transportation system. This document serves as the
defining vision for the region’s or state’s transportation systems and
services. In metropolitan areas, the plan indicates all of the
transportation improvement scheduled for funding over the next 20
years.
Metropolitan Planning Organization (MPO)—a forum for regional
planning, collaboration, and decisionmaking, MPOs are designated
agencies for metropolitan areas larger than 50,000 in population that
conduct regional transportation planning.
Mitigation—means to avoid, minimize, rectify, or reduce an impact,
and in some cases, to compensate for an impact.
National Environmental Policy Act (NEPA)—a law enacted in 1969
that established a national environmental policy requiring that any
project using federal funding or approval, including transportation
projects, examine the effects the proposal and alternative choices have
on the environment before a federal decision is made.
Project Development—the phase a proposed project undergoes once
it has been through the planning process. The project development
phase is a more detailed analysis of a proposed project’s social,
economic, and environmental impacts and various project alternatives.
What comes from the project development phase is a decision reached
through negotiation among all affected parties, including the public.
After a proposal has successfully passed the project development phase,
it may move to preliminary engineering, design, and construction.

Public Hearing—a formal event held prior to a decision that gathers
community comments and positions from all interested parties for
public record and input into decisions.
Public Meeting—a formal or informal event designed for a specific
issue or community group where information is presented and input
from community residents is received.
Record of Decision (ROD)—a concise decision document for an
environmental impact statement that states the decision (selected
alternative or choice), other alternatives considered, and mitigation
adopted for the selected alternative or choice.
State Department of Transportation (State DOT)—a statewide
agency that is responsible for conducting transportation planning
activities in non-metropolitan areas of the state, and assisting MPOs in
transportation planning for the metropolitan areas. State DOTs are also
responsible for developing, designing, and constructing most of the
projects on major highways in most states.
Statewide Transportation Improvement Program (STIP)—prepared
by the State DOTs, the STIP is a staged, multiyear listing of projects
proposed for federal, state, and local funding encompassing the entire
state. It is a compilation of the TIPs (see TIP) prepared for the
metropolitan areas, as well as project information for the nonmetropolitan
areas of the state and for transportation between cities.
31

32
Transportation Equity Act for the 21st Century (TEA-21)—a law
enacted in 1998, TEA-21 authorized federal funding for transportation
investment for the time period spanning fiscal year 1998 to fiscal year
2003. Approximately $218 billion in funding was authorized, the
largest amount in history, and is used for highway, transit, and other
surface transportation programs.
Transportation Improvement Program (TIP)—a staged, multiyear
(typically three to five years) listing of surface transportation projects
proposed for federal, state, and local funding within a metropolitan
area. MPOs are required to prepare a TIP as a short-range programming
document to complement its long-range transportation plan. TIPs
contain projects with committed funds over a multiyear period.
Transportation Planning—a collaborative process of examining
demographic characteristics and travel patterns for a given area. This
process shows how these characteristics will change over a given period
of time, and evaluates alternatives for the transportation system of the
area and the most expeditious use of local, state, and federal
transportation funding. Long-range planning is typically done over a
period of twenty years; short-range programming of specific projects
usually covers a period of three to five years.

Transportation
Decisionmaking a citizen’s guide to
Publication No. FHWA-EP-01-013
HEPH/3-01(15M)E

Tuesday,
January 15, 2002
Part II
Department of
Defense
Department of the Army, Corps of
Engineers
Issuance of Nationwide Permits; Notice
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2020 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Issuance of Nationwide Permits;
Notice
AGENCY: Army Corps of Engineers, DoD.
ACTION: Final notice.
SUMMARY: The Corps of Engineers is
reissuing all the existing Nationwide
Permits (NWPs), General Conditions,
and definitions with some
modifications, and one new General
Condition. These final NWPs will be
effective on March 18, 2002. All NWPs
except NWPs 7, 12, 14, 27, 31, 40, 41,
42, 43, and 44 expire on February 11,
2002. Existing NWPs 7, 12, 14, 27, 31,
40, 41, 42, 43, and 44 expire on March
18, 2002. In order to reduce the
confusion regarding the expiration of
the NWPs and the administrative
burden of reissuing NWPs at different
times, we are issuing all NWPs on the
same date so that they expire on the
same date. Thus, all issued, reissued
and modified NWPs, and General
Conditions contained within this notice
will become effective on March 18, 2002
and expire on March 19, 2007.
DATES: All NWPs and general conditions
will become effective on March 18,
2002. All NWPs have an expiration date
of March 19, 2007.
ADDRESSES: HQUSACE, ATTN: CECW–
OR, 441 ‘‘G’’ Street, NW., Washington,
DC 20314–1000.
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson, at (703) 428–7570, Mr.
Rich White, at (202) 761–4599, or Mr.
Kirk Stark, at (202) 761–4664 or access
the U.S. Army Corps of Engineers
Regulatory Home Page at: http//
:www.usace.army.mil/inet/functions/
cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION:
Background
In the August 9, 2001 (66 FR 42070),
Federal Register the Corps proposed to
reissue all the existing Nationwide
Permits (NWPs), General Conditions,
and definitions with some
modifications, and one new General
Condition. We proposed to modify
NWPs 14, 21, 27, 31, 37, 39, 40, 42, and
43, General Conditions 4, 9, 13, 19, 21,
26, and add a new General Condition
27.
The proposal intended to simplify
and clarify permits that have no more
than minimal effect on the environment,
add additional requirements that will
enhance protection of the aquatic
environment, increase flexibility for the
Corps field staff to target resources
where most needed to protect the
aquatic environment, reduce
unnecessary burdens on the regulated
public, and retain the key protections
for the aquatic environment that were
added last year (e.g. acreage limit of 1 ⁄2
acre of impact per project, the
requirement for the Corps to be notified
of any impacts over 1 ⁄10 acre, and
important limits on impacts within
mapped floodplains).
As a result of the comments received
in response to the August 9, 2001,
Federal Register notices and the public
hearing on September 26, 2001, the
Corps has made a number of changes to
the proposed NWPs and General
Conditions that are designed to further
clarify the permits and strengthen
environmental protection. These
changes are discussed in the preamble.
In the December 13, 1996, issue of the
Federal Register, the Corps announced
its intention to replace NWP 26 with
activity-specific NWPs before the
expiration date of NWP 26. In the March
9, 2000, Federal Register notice (65 FR
12818—12899), the Corps published
five new NWPs, modified six existing
NWPs, modified six General Conditions,
and added two new General Conditions
to replace NWP 26. The five new NWPs
(i.e., 39, 41, 42, 43, 44) and six modified
NWPs (i.e., NWPs 3, 7, 12, 14, 27, and
40) would have expired five years from
their effective date of June 7, 2000.
Today the Corps of Engineers is
reissuing all the existing Nationwide
Permits (NWPs), General Conditions,
and definitions with some
modifications, and one new General
Condition. These final NWPs will be
effective on March 18, 2002. All NWPs
except NWPs 7, 12, 14, 27, 31, 40, 41,
42, 43, and 44 expire on February 11,
2002. Existing NWPs 7, 12, 14, 27, 31,
40, 41, 42, 43, and 44 expire on March
18, 2002. In order to reduce the
confusion regarding the expiration of
the NWPs and the administrative
burden of reissuing NWPs at different
times, we are issuing all NWPs on the
same date so that they expire on the
same date. Thus, all issued, reissued
and modified NWPs, and General
Conditions contained within this notice
will become effective on March 18, 2002
and expire on March 19, 2007.
Grandfather Provision for Expiring
NWPs at 33 CFR 330.6
Activities authorized by the current
NWPs issued on December 13, 1996,
(except NWPs 7, 12, 14, 27, 31, 40, 41,
42, 43, and 44), that have commenced
or are under contract to commence by
February 11, 2002, will have until
February 11, 2003 to complete the
activity. Activities authorized by NWPs
7, 12, 14, 27, 31, 40, 41, 42, 43, and 44,
that were issued on March 9, 2000, that
are commenced or under contract to
commence by March 18, 2002, will have
until March 18, 2003 to complete the
activity.
Clean Water Act Section 401 Water
Quality Certification (WQC) and
Coastal Zone Management Act (CZMA)
Consistency Agreement
In the August 9, 2001, Federal
Register notice and concurrent with
letters from Corps Districts to the
appropriate state agencies, the Corps
requested 401 certification and CZM
consistency agreement. This began the
Clean Water Act section 401 water
quality certification (WQC) and Coastal
Zone Management Act (CZMA)
consistency agreement processes.
Today’s Federal Register notice
provides a 60-day period for the states
to complete the Clean Water Act section
401 water quality certification (WQC)
and Coastal Zone Management Act
(CZMA) consistency agreement
processes. On August 9, 2001, we
proposed to increase the normal 60-day
period to complete the WQC and CZMA
processes to 90 days. However, due to
a majority of the NWPs expiring
February 11, 2001, and schedule delays,
we have had to keep the WQC and
CZMA processes to 60 days. Also during
this 60-day period, Corps divisions and
districts will finalize their regional
conditions for the new and modified
NWPs.
Discussion of Public Comments
I. Overview
In response to the August 9, 2001,
Federal Register notice, we received
more than 2,100 comments. We
reviewed and fully considered all
comments received in response to that
notice.
Many commenters expressed
opposition to the proposed NWPs, but a
few commenters indicated support for
these NWPs. Most of the comments in
opposition of the NWPs were two
versions of identical post cards and a
form letter that objected to proposed
changes to general conditions 19 and 26,
opposed the removal of linear limits for
NWPs 21, 39, 40, 42, 43, and 44, and
requested the withdrawal of NWP 21.
Other commenters said that the NWPs
were too difficult for the public to use,
the NWPs exceeded the Corps
jurisdiction, and the acreage and linear
limits were too low for the NWPs to be
useful. One commenter indicated that
few changes proposed in the August 9,
2001, Federal Register notice will result
in decreased workload for the Corps.
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After considering the comments
received in response to the August 9,
2001, Federal Register notice, we made
several changes to the NWPs, general
conditions, and definitions. These
changes are discussed in detail in the
preamble discussion for each NWP,
general condition, and definition. We do
not agree that the NWPs are too difficult
for the regulated public to use. We have
retained the 1 ⁄2 acre limit for many of
the NWPs, to ensure that those NWPs
authorize only activities with minimal
adverse effects on the aquatic
environment, individually and
cumulatively. We have not adopted the
proposed waiver process for the 300
linear foot limit for perennial streams in
NWPs 39, 40, 42, and 43. We did adopt
the waiver for intermittent streams in
NWPs 39, 40, 42, and 43. NWPs 21 and
44 do not currently have a linear foot
limitation, so the waiver does not apply.
We believe that the changes to the
NWPs will allow the Corps to more
effectively authorize activities with
minimal adverse effects on the aquatic
environment.
II. General Comments
Many commenters objected to the
NWP proposal, stating that it will place
citizens at risk from flooding, promote
wetland and stream destruction,
degrade water quality, and result in the
loss of critical habitat. Another
commenter indicated that the NWPs
need to be strengthened to ensure that
marine, riparian, and riverine habitats,
and the fish species that depend on
those habitats, are adequately protected
under the NWP process. One
commenter said that the NWPs should
authorize only those activities that have
minimal impacts on water quality. This
commenter said that the NWPs will lead
to piecemealing and result in
cumulative impacts detrimental to
particular waterbodies. A commenter
objected to the NWPs, stating that the
NWPs authorize activities that expand
existing developments. Another
commenter said that the proposed
NWPs will only benefit the
development community and the Corps,
while exposing the public and
environment to unnecessary harm. One
commenter stated that the Corps
proposal to modify the NWPs would
significantly weaken wetlands
protection and severely hamper the
ability of State fish and wildlife
agencies to conserve wetlands and
watersheds.
The terms and conditions of the
NWPs, including the general conditions,
ensure that the activities authorized by
NWPs result in no more than minimal
adverse effects on the aquatic
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
environment, including wetlands and
streams. General Condition 26, Fills
Within 100-year Floodplains, addresses
the use of certain NWPs to authorize
activities in 100-year floodplains and
ensures that such activities comply with
FEMA-approved State and local
floodplain management requirements.
General Condition 11, Endangered
Species, ensures that activities
authorized by NWPs comply with the
Endangered Species Act. Water quality
certification is required for NWP
activities authorized under section 404
of the Clean Water Act. In addition,
district engineers can require water
quality management measures to ensure
that NWP activities result in no more
than minimal adverse effects on water
quality. NWPs authorize single and
complete projects, and do not result in
piecemealing of projects. District
engineers consider cumulative adverse
effects when reviewing requests for
NWP verifications, including activities
that result in the expansion of existing
developments. The NWPs do not
impede the efforts of State fish and
wildlife agencies to conserve wetlands
and watersheds.
Several commenters asserted that the
NWP program contradicts the clear
intent of Congress to establish a
streamlined general permit process for
activities with minimal adverse effects
on the aquatic environment. A couple of
commenters said that the NWPs regulate
activities that are exempt from the Clean
Water Act and its implementing
regulations. These commenters
requested more consistency between the
NWPs and these statutory exemptions.
One commenter stated that drainage
districts are generally exempt from
permit requirements, including preconstruction
notification (PCN)
requirements. This commenter said that
the NWP conditions and notification
requirements are too costly and could
impair the ability of drainage districts to
meet their obligations to protect citizens
from flooding, and that the drainage
ditches should be exempt from these
regulations. One commenter stated that
the Corps should recognize the
important differences between wetland
landscapes and the protection of nonaquatic
areas that are dominated by
ephemeral drainage systems in the
desert regions of the southwest United
States.
The NWPs provide an expedited
review process for activities in waters of
the United States that result in no more
than minimal individual and
cumulative adverse effects on the
aquatic environment. Although the
NWP program has undergone
substantial changes in recent years, we
2021
believe those changes were necessary to
ensure compliance with section 404(e)
of the Clean Water Act. Section 404(e)
authorizes the Corps to issue general
permits, including NWPs. General
permits authorize activities that are
similar in nature and result in no more
than minimal adverse effects on the
aquatic environment, individually and
cumulatively. The lower acreage limits
and more restrictive terms and
conditions of the NWPs are necessary to
comply with section 404(e).
The NWPs do not regulate activities
that are exempt from the permit
requirements of the Clean Water Act.
Certain activities that are conducted by
drainage districts, such as the
maintenance of drainage ditches, may
be eligible for section 404(f) exemptions
and therefore may not require
authorization from the Corps. The
construction of new drainage ditches
may require a Department of the Army
(DA) permit, if the proposed work
involves discharges of dredged or fill
material into waters of the United States
and/or work in Section 10 waters. The
NWPs do not change the section 404(f)
exemptions. The NWPs authorize
certain activities that require a DA
permit pursuant to section 10 of the
Rivers and Harbors Act and/or section
404 of the Clean Water Act. Some
NWPs, such as NWPs 3 and 14, contain
references to the section 404(f)
exemptions. Project proponents can
contact district engineers to determine
whether specific activities qualify for
the section 404(f) exemptions.
The NWPs allow district engineers
flexibility when reviewing activities that
involve discharges of dredged or fill
material into ephemeral streams.
Division engineers can regionally
condition the NWPs to restrict or
prohibit specific activities that result in
the loss of ephemeral stream beds, or
require project proponents to notify
district engineers prior to construction
for case-by-case review. The waiver
process for the 300 linear foot limit for
NWPs 39, 40, 42, and 43 allows district
engineers to issue NWP verifications for
activities that result in the loss of greater
than 300 linear feet of intermittent (but
not perennial) stream bed and have no
more than minimal adverse effects on
the aquatic environment.
Several commenters indicated that the
proposed changes to the NWP program
fails to address the significant problems
with the new and modified NWPs that
were published in the March 9, 2000,
Federal Register (65 FR 12818). Two
commenters stated that the restrictions
in those NWPs have resulted in large
burdens on the transportation
construction industry and planning
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2022 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
officials. One commenter said that the
elimination of the NWP 26 has resulted
in large increases in delays associated
with obtaining individual permits for
transportation activities that were
authorized by NWP 26. One commenter
stated that these NWPs will result in
longer delays and greater expenses for
simple projects. This commenter said
that NWP 26 should be reinstated to
replace these cumbersome NWPs. One
commenter asserted that the NWPs
result in substantial burdens on the
regulated public. Two commenters
recommended that the Corps improve
the NWP program by increasing acreage
limits, increasing PCN thresholds, and
reducing PCN information
requirements.
The replacement of NWP 26 with
activity-specific NWPs was necessary to
ensure compliance with section 404(e)
of the Clean Water Act. The terms and
conditions of the NWPs published in
the March 9, 2000, Federal Register
notice were intended to ensure that the
NWPs authorize only those activities
that result in no more than minimal
adverse effects on the aquatic
environment. We recognize that certain
activities that were previously
authorized by NWPs now require
individual permits, and that it takes
more time to authorize those activities,
including some transportation projects.
We do not agree that the acreage limits
and PCN thresholds of the NWPs should
be increased, because the lower limits
and thresholds ensure that the NWPs
authorize only activities with no more
than minimal adverse environmental
effects.
One commenter stated that the Corps
data shows that the number of acres of
wetlands created under the mitigation
requirements of the NWP program
exceeds the number of acres permitted
under the program. This commenter
asked why the Corps has failed to do
more to carry out the policies
established in section 101(f) of the Clean
Water Act to minimize paperwork, seek
the best uses of manpower and funds,
and to prevent needless delays at all
levels of government.
The NWP program complies with the
requirements of section 101(f) of the
Clean Water Act, by providing an
effective means of authorizing activities
with no more than minimal individual
and cumulative adverse effects on the
aquatic environment.
Implementation
One commenter objected to the
NWPs, stating that these permits remove
the public, resource agencies, and the
Corps from the permit review process.
Another commenter said that NWP
activities should be coordinated with
natural resource agencies and the
public. One commenter said that it is
not appropriate for the Corps to rely on
discretionary authority, regional
conditions, and the PCN process to
reduce the adverse impacts to the
aquatic environment to a minimal level.
This commenter stated that regional
conditions are not consistently
implemented across the country or to
the degree necessary to ensure minimal
effects.
The NWPs authorize minor activities
that are usually not controversial and
would result in little or no public or
resource agency comment if they were
reviewed through the standard permit
process. Conducting full public interest
reviews for NWP activities would
substantially increase the Corps
workload without substantial added
value for the aquatic environment. NWP
activities that require notification to the
district engineer and result in the loss
of greater than 1 ⁄2 acre of waters of the
United States are coordinated with the
appropriate Federal and state agencies
(see paragraph (e) of General Condition
13). Discretionary authority, regional
conditions, and the PCN process are
essential elements of the NWP program,
to ensure that NWP activities result in
no more than minimal adverse effects
on the aquatic environment. In response
to a PCN, a district engineer can add
special conditions to the NWP
authorization to ensure that the activity
will result in no more than minimal
adverse effects on the aquatic
environment. If the proposed work will
result in more than minimal adverse
effects on the aquatic environment,
district engineers can exercise
discretionary authority to require an
individual permit. Regional conditions
are not consistent throughout the
country, because they address
differences in aquatic resource functions
and values in watersheds or other types
of geographic regions.
One commenter stated that in order to
ensure that the NWPs authorize only
activities with minimal adverse effects
on the aquatic environment, the NWPs
should include a new general condition.
This general condition would require
public notices in all cases where
notification is required and the
submission of surveys of terrestrial and
aquatic species and cultural and historic
resources that may be affected by the
NWP activity.
We do not agree that the general
condition proposed in the previous
paragraph is practical or necessary.
General Condition 11, Endangered
Species, addresses compliance with the
Endangered Species Act. General
Condition 12, Historic Properties,
addresses compliance with the
requirements of the National Historic
Preservation Act. Project proponents
may be required to provide surveys of
endangered species or cultural resources
to ensure compliance with these general
conditions.
One commenter asserted that there is
an unsubstantiated presumption that
compensatory mitigation in any form
effectively offsets the individual or
cumulative adverse effects of NWP
activities. One commenter indicated
that, due to the small NWP acreage
limits, the Corps has lost the ability to
direct mitigation toward areas that
would provide the most benefits on a
watershed basis. One commenter said
that mitigation should not be used to
ensure that NWP activities result in
minimal adverse effects on the aquatic
environment. This commenter suggested
that avoidance and practicable
alternatives should be emphasized.
Compensatory mitigation is an
important mechanism to ensure that the
activities authorized by NWPs result in
no more than minimal adverse effects
on the aquatic environment,
individually and cumulatively.
Compensatory mitigation can be
provided through individual aquatic
resource restoration, creation,
enhancement, or in exceptional
circumstances, preservation projects, as
well as mitigation banks, in lieu fee
programs, and other types of
consolidated mitigation efforts. General
Condition 19 discusses mitigation for
NWP activities, including the
requirement for project proponents to
avoid and minimize adverse effects on
waters of the United States to the
maximum extent practicable on the
project site.
One commenter objected to the
NWPs, stating that conditions imposed
on the NWPs are rarely monitored for
compliance. This commenter suggested
that the Corps commit to an aggressive
monitoring and enforcement program
for activities authorized by NWPs.
Another commenter said that the lack of
compliance inspections has resulted in
numerous instances where activities
authorized by NWPs have resulted,
through implementation failures and
intentional violations, in substantial
adverse effects. This commenter
suggested that each NWP should be
subject to a statistically sufficient
number of compliance inspections to
determine whether compliance is being
achieved, and whether the NWP
activities are resulting in more than
minimal individual or cumulative
adverse effects. One commenter said
that enforcement efforts should not be
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weakened. One commenter stated that
the Corps needs to monitor and enforce
the national and regional conditions of
the NWPs.
We are committed to strong
enforcement and compliance efforts for
activities authorized by DA permits,
including NWPs, but the amount of time
dedicated to enforcement and
compliance is dependent upon the
value of the impacted resource and the
available amount of district resources.
The Corps is increasing its compliance
efforts to further improve compliance.
In consultation with other Federal
agencies, the Corps is currently
finalizing guidance that will address the
need for improved compliance.
One commenter asserted that Corps
personnel rarely verify the information
provided in NWP verification requests,
and speculated that project proponents
may under-report the amount of impacts
to waters of the United States to qualify
for NWP authorization. This commenter
suggested that the Corps commit to
independent verification of the
information submitted in NWP
verification requests or verify the
information for randomly selected
subsets of verification requests. One
commenter suggested that Corps
produce educational brochures and web
pages that describe the basic
information that must be submitted in
order to ensure that a NWP request is
considered complete.
District personnel review requests for
NWP verifications to determine if the
information provided by the project
proponents is accurate. The level of
review is dependent on the amount of
impacts proposed by the applicant and
the resources available to Corps
personnel. Site visits cannot be
conducted for all NWP verification
requests. District personnel utilize their
knowledge of local conditions when
reviewing NWP verification requests to
assess whether the information
provided in the NWP verification
request is accurate. The Corps
Headquarters homepage, see address
above, and Corps district homepages
contain information on the NWPs,
including the NWPs, general conditions,
regional conditions, state 401 and CZM
conditions, and decision documents.
The text of General Condition 13,
Notification, lists the information
necessary for a complete PCN. Several
districts also provide brochures to assist
project proponents who are preparing
permit applications or NWP verification
requests. District home pages on the
Internet also have other information that
is useful for permit applicants.
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
Acreage Limits
Three commenters suggested that
higher acreage limits should be adopted
for impacts to non-wetland waters and
that district engineers should have the
authority to issue project-specific
waivers to NWP acreage limits. One
commenter said that there should be
higher acreage limits for master planned
communities or similar planned
development projects. One commenter
said that a 500 linear foot limit for
stream impacts should be added to the
NWPs.
We do not agree that higher acreage
limits should be implemented for NWP
activities that result in the loss of nonwetland
waters, or for master planned
development projects. Open waters,
such as streams, ponds, lakes, estuaries,
and the oceans, are important
components of the overall aquatic
environment and provide valuable
functions and environmental benefits.
We also do not agree that a waiver
process should be implemented for the
acreage limits of NWPs. We do not
believe it is necessary to impose a 500
linear foot limit on all losses of stream
bed authorized by NWPs. The 300 linear
foot limit for NWPs 39, 40, 42, and 43,
and the waiver process for intermittent
streams will ensure that those NWPs
authorize no more than minimal
impacts to stream beds. And such a
limit is not necessary for the other
NWPs. In addition, these acreage limit
suggestions would require notice and
comment, before they could be adopted.
One commenter stated that the
standard permit process does not
necessarily result in additional
avoidance, minimization, or
compensatory mitigation, but causes
substantial project delays, higher costs,
and increased risks to public safety.
Two commenters suggested that the
Corps implement an NWP program that
imposes the acreage limits of the 1996
NWPs (i.e., 3 acres) on the activityspecific
NWPs published in the March
9, 2000, Federal Register. A number of
commenters recommended reissuing
NWP 26. One commenter said that the
NWPs are too restrictive and they add
unnecessary administrative burdens
while providing questionable
environmental benefits. Two
commenters said that there is nothing in
the administrative record that indicates
the need for the 1 ⁄2 acre limit. Three
commenters stated that the acreage
limits and PCN thresholds are arbitrary
and capricious and unsupported by
sound science.
The standard permit process can
result in additional avoidance and
minimization because of the Section
2023
404(b)(1) guidelines analysis required
for those standard permit activities that
involve discharges of dredged or fill
material into waters of the United
States. The terms and conditions of the
NWPs, including the 1 ⁄2 acre limit for
many of the NWPs, are necessary to
ensure that the NWPs authorize only
those activities with no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. We do not agree that
NWP 26 should be reinstated, because
the replacement of NWP 26 was
necessary to ensure compliance with
section 404(e) of the Clean Water Act.
One commenter stated that the 1 ⁄2 acre
limit for certain NWPs has dramatically
expanded the scope of the regulatory
program, leading to increased costs and
delays with few demonstrated
environmental benefits. One commenter
asserted that the acreage limits of the
NWPs do not decrease losses of
wetlands because projects are designed
to impact the maximum amount to
avoid the individual permit process.
Several commenters said that the NWP
program is no longer useful to industry
and other regulated entities because the
strict terms and conditions of the NWPs
provide no incentives for project
proponents to design projects to qualify
for NWP authorization. This commenter
said that there should be more reliance
on regional conditions to ensure that
there is no more than minimal adverse
environmental effects, instead of
unnecessarily restrictive national
conditions. A number of commenters
indicated that impacts on the
environment will increase since few
projects qualify for NWP authorization.
The 1 ⁄2 acre limit for certain NWPs has
not increased the scope of the regulatory
program, although it may result in more
activities requiring individual permits.
The terms and conditions of the NWPs
are necessary to ensure that the NWPs
authorize only those activities that
result in no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. Division
engineers can add regional conditions to
the NWPs to address important aquatic
resource functions and values in
particular geographic areas, but the
terms and national general conditions of
the NWPs are necessary to address
national concerns for the aquatic
environment. The NWP program
encourages avoidance and minimization
of impacts to wetlands, and most project
proponents do not request NWP
authorization to fill the maximum
amount of wetlands under the NWP
acreage limits. General Condition 29
requires project proponents to avoid and
minimize impacts to waters of the
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2024 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
United States to the maximum extent
practicable on the project site. We
believe that many project proponents
will continue to design their projects to
qualify for authorization under the
NWPs, including avoiding and
minimizing impacts to aquatic resources
on the project site.
Pre-construction Notification Process
One commenter requested that the
Corps reinstate the 1 ⁄3 acre PCN
threshold, or demonstrate that a lower
notification threshold is necessary to
ensure that adverse effects on the
aquatic environment are minimal.
The 1 ⁄10 acre PCN threshold for
several of the NWPs is necessary so that
district engineers can review those
activities to ensure that they result in no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. Therefore, we have
retained the 1 ⁄10 acre PCN threshold for
certain NWPs. Additionally, the Corps
does not believe the PCN requirements
impose a significant burden on most
project proponents.
A few commenters stated that NWPs
are complex and the PCN process
requires too much time. One commenter
said that the time limit for determining
if a PCN is complete is longer than the
15 day period for determining if a
standard permit application is complete.
This commenter recommended that the
Corps delete the 30 day completeness
review for PCNs. This commenter said
that increasing the PCN review period to
45 days does not comply with the goal
for an expedited permit process, and
makes the NWP process resemble the
standard permit process. One
commenter said that the PCN review
process provides disincentives for
project proponents to design their
projects to qualify for NWP
authorization.
The 45 day PCN review period is
necessary to allow district engineers to
adequately review those activities that
require PCNs. However, most NWP
verifications do not take the full 45
days. The average time to verify a NWP
activity is 19 days. Although the 30 day
completeness review period for PCNs is
less than the 15 day completeness
review period for standard permit
applications, the PCN process allows
more effective authorization of activities
with no more than minimal adverse
effects on the aquatic environment. An
individual activity authorized by an
NWP does not require a public notice or
the same level of review required for a
standard permit activity. Project
proponents requesting NWP
verifications generally receive their
authorizations more quickly than they
would receive standard permits. The 45
day PCN review period includes the 30
day completeness review, and we do not
agree that the 30 day completeness
review period should be deleted. The
completeness review period makes the
PCN process more efficient by requiring
district engineers to request additional
information early in the PCN process. If
a district engineer receives a complete
PCN, then the decision to verify that the
activity is authorized by NWP or
exercise discretionary authority must be
made within 45 days. We do not agree
that the PCN process discourages project
proponents from designing their
projects to qualify for NWP
authorization, because the NWP process
is faster than the standard permit
process.
Compliance With Section 404(e) of the
Clean Water Act and the National
Environmental Policy Act
Several commenters said that the
NWPs do not comply with section
404(e) of the Clean Water Act because
they authorize activities with more than
minimal adverse effects on the aquatic
environment. One commenter asserted
that the NWPs should be limited to
specific uses. Numerous commenters
stated that the NWPs do not comply
with the ‘‘similar in nature’’
requirement of section 404(e) of the
Clean Water Act.
The terms and conditions of the
NWPs, including the acreage limits and
PCN review process, ensure that the
NWPs authorize only those activities
with no more than minimal individual
and cumulative adverse effects on the
aquatic environment. The NWPs
undergo a thorough review process
every five years to ensure compliance
with the requirements of section 404(e)
of the Clean Water Act. Each of the
NWPs complies with the requirement
for general permits to authorize
activities that are ‘‘similar in nature.’’
One commenter indicated that the
database may not be adequate enough to
warrant the proposed changes to the
NWPs and said that the Corps cannot
assure the public that the proposed
changes will not result in greater
impacts to waters of the United States.
Another commenter said that the
database to justify the proposed changes
is small compared to the overall age of
the permit program. A few commenters
suggested that the regulations should be
modified to require each Corps district
office to furnish quarterly reports to
each state agency in the district that
would summarize the number, type, and
impacts of activities in waters of the
United States for all NWP verifications
issued. Several commenters said that
the Corps needs to improve its database
for the regulatory program.
The proposed changes to the NWPs
published in the August 9, 2001,
Federal Register will not result in more
than minimal adverse effects on the
aquatic environment. The proposed
modifications are intended to improve
the efficiency of the NWP program, and
enhance protection of important aquatic
resources. We do not agree that it is
necessary to change the Corps
regulations to require districts to
provide states with quarterly reports
concerning the impacts authorized by
all NWP verifications. Corps
headquarters is developing a new data
collection and reporting system to
replace the current system. The new
system will improve data collection for
the regulatory program, and will help
the Corps compile summary data and
evaluate trends. The new data collection
system will improve the reliability of
regulatory program data.
One commenter said that the Corps
has not adequately assessed cumulative
impacts and that virtually no mitigation
has been required because of the smaller
individual impacts of these NWPs.
Another commenter objected to the
NWPs, stating that district engineers
cannot determine the magnitude of
individual and cumulative
environmental impacts. One commenter
said that the NWPs should not be
reissued because cumulative impacts
have not been addressed at a regional or
national level.
We maintain our position that
assessing cumulative impacts across the
nation is not possible or appropriate.
We believe that no assessment of
individual and cumulative impacts can
be made a national level, because the
functions and values of aquatic
resources vary considerably across the
country. Assessment of cumulative
impacts is more appropriately
conducted by Corps districts on a
watershed basis, because they have
better understanding of local conditions
and processes. However, the NWP
program is designed programmatically
to ensure no more than minimal adverse
effects, individually and cumulatively.
This is accomplished through acreage
limits, the PCN process, regional
conditioning, and the exercise of
discretionary authority to require
individual permits. Each district
generally tracks losses of waters of the
United States authorized by Department
of the Army permits, including verified
NWPs, as well as required
compensatory mitigation achieved
through aquatic resource restoration,
creation, and enhancement. The
regional conditioning process, including
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the preparation of supplemental
Environmental Assessments by division
engineers, also helps ensure that the
NWPs authorize activities with no more
than minimal adverse effects on the
aquatic environment, individually and
cumulatively.
One commenter stated that National
Environmental Policy Act (NEPA)
requires the Corps to evaluate the
environmental impacts of every major
Federal action, such as the issuance of
section 404 permits, that significantly
affects the quality of the human
environment. Several commenters said
that Environmental Impact Statements
(EISs) are required for the NWPs, at both
the national and district levels. One of
these commenters asserted that these
EISs should examine all reasonable
alternatives to the NWPs, general
conditions, and regional conditions.
One commenter said that EISs should be
completed for NWPs 13, 29, 39, 40, 42,
and 44. Two commenters said that
regional conditions for the NWPs
should not be finalized until an EIS on
the NWPs is completed. One commenter
expressed disagreement with the
Finding of No Significant Impact
(FONSI) for the NWP program that was
issued on June 23, 1998, which stated
that the Corps is not required to do an
EIS for the NWPs. One commenter said
that an EIS is required to demonstrate
compliance with section 404(e) of the
Clean Water Act.
We maintain our position that the
NWPs do not require an EIS, even
though we are in the process of
preparing a voluntary programmatic EIS
for the NWP program. Since the NWPs
authorize only those activities that have
no more than minimal adverse effects
on the aquatic environment, the NWP
program does not reach the significance
threshold required for the preparation of
an EIS. The NWPs are subjected to a
reissuance process every five years. This
reissuance process involves a public
notice and comment period, which
provides the Corps with information to
ensure that the NWPs continue to
authorize only those activities with no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. Again, the NWP
program does not reach the level of
significant impacts that requires the
preparation of an EIS. To comply with
NEPA, Corps headquarters issues an
Environmental Assessment (EA) for
each NWP when it is issued, reissued,
or modified. These EAs consider the
environmental effects of each NWP from
a national perspective. Each Corps
division and district engineer will
supplement these EAs to evaluate
regional environmental effects of the
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
NWPs. For the reasons above, the NWP
program and the NWPs do not reach the
level of significant impacts that requires
the preparation of an EIS, and in fact are
far below that level.
We do not agree that regional
conditions for the NWPs should not be
finalized until an EIS on the NWPs is
completed. We also believe that the
FONSI for the NWP program that was
issued on June 23, 1998, is still valid
despite the changes to the NWPs that
have occurred since the FONSI was
issued. There have been no substantial
changes to the NWP regulations at 33
CFR part 330 or to the implementation
of the NWP program since the FONSI
was issued. The FONSI discussed, in
general terms, the implementation of the
NWP program, including the procedures
used by the Corps to ensure that the
NWPs authorize only those activities
with no more than minimal individual
and cumulative adverse effects on the
aquatic environment. The Corps is not
required to do an EIS to demonstrate
compliance with section 404(e) of the
Clean Water Act. The decision
documents issued for each NWP address
compliance with the section 404(b)(1)
guidelines, which require an analysis
for the issuance of general permits (see
40 CFR 230.7). Finally, although not
required to prepare an EIS, the Corps is
preparing a voluntary Programmatic EIS
to assess the NWP Program to see if
there are changes to the NWP program
that would further ensure that there are
no more than minimal adverse effects to
the aquatic environment, individually
and cumulatively. The Programmatic
EIS is discussed below.
One commenter said that the Corps
can not limit its analyses to only those
effects of the NWPs that occur in
jurisdictional waters at the location of
the permitted activity. Another
commenter said that an EIS is required
each time an NWP is used to authorize
a private development project.
For the purposes of NEPA and the
Corps regulatory program, the scope of
analysis is limited to address the
impacts of the specific activity requiring
a DA permit and those portions of the
entire project over which the district
engineer has sufficient control and
responsibility to warrant Federal review
(see 33 CFR part 325, Appendix B,
paragraph 7(b)). We do not agree that an
EIS is warranted whenever an NWP is
used to authorize a private development
project, because the NWPs authorize
only those activities that occur within
the Clean Water Act section 404 limited
scope of review and that have no more
than minimal adverse effects on the
aquatic environment.
2025
One commenter stated that the EAs
for the NWPs must contain current data.
Two commenters asserted that the
decision documents, including the EAs
and Statements of Finding, for the
NWPs should be subjected to an agency
coordination and public comment
period before they are finalized.
Another commenter said that the EAs
fail to consider alternatives to the
proposed NWPs. One commenter stated
that the EAs prepared for the NWPs do
not adequately describe or assess the
significant cumulative effects the NWP
program has on the environment. One
commenter recommended that the
Corps issue new EAs for each
nationwide permit to demonstrate
compliance with NEPA. One commenter
objected to the preliminary EAs, stating
that those documents do not
demonstrate an ecological rationale for
the proposed acreage limits of the
NWPs. One commenter stated that the
EAs do not adequately assess potentially
significant environmental impacts of the
NWPs.
We believe it was unnecessary to
make the revised EAs for the NWPs
proposed in the August 9, 2001, Federal
Register available for agency review and
public comment. The EAs for the new
and modified NWPs issued today
discuss, in general terms, the acreage
limits for these NWPs, the types of
waters subject to the new and modified
NWPs, and the functions of those
waters. The EAs also address projected
impacts to waters of the United States
that will occur through the use of these
NWPs. These projected impacts are
based on recent data. The EAs also
contain discussions of alternatives
analyses. Since aquatic resource
functions and values vary considerably
across the country, we cannot include
detailed ecological analyses to support
the acreage limits for these NWPs. In
addition, due to NEPA requirements
concerning the length of environmental
documentation, the EAs for the new and
modified NWPs must be limited to
general discussions of potential impacts.
Division engineers will be issuing
supplemental EAs that will address
regional issues at the district level. The
‘‘Forty Most Frequently Asked
Questions’’ concerning NEPA developed
by the Council on Environmental
Quality (i.e., Question 36) and the Corps
regulations at 33 CFR part 325,
Appendix B, discuss the recommended
length of EAs. Finally, the changes in
the new NWPs, relative to the existing
NWPs, are minimal and generally
designed to simplify the permits and
increase protection of the aquatic
environment. EAs for the existing
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2026 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
permits have been publicly available
since these permits were issued.
A few commenters said that the Corps
must finalize the Programmatic
Environmental Impact Statement (PEIS)
for the NWPs before finalizing the NWP
proposal published in the August 9,
2001, Federal Register. One commenter
stated that the current NWPs should be
extended until the PEIS is completed.
One commenter stated that the draft
PEIS for the NWP program does not
address the specific effects of the NWPs
on listed species, critical habitat or any
other natural resources. Another
commenter said that the draft PEIS lacks
available data to assess the impacts of
the NWP program because the Corps
database is faulty. This commenter
asserted that there should be no
permitting until the Corps can
adequately assess the success or failure
of the regulatory program. One
commenter said that the NWP PEIS does
not provide sound scientific data that
demonstrates that the NWPs have only
minimal impacts on the environment.
In March 1999 the Corps began
preparation of a voluntary PEIS to
evaluate procedures and processes for
the NWP program. The PEIS will not
address the impacts of any specific
NWPs. The PEIS is not a legally
required EIS. The Council of
Environmental Quality’s regulations at
50 CFR 1506.1(c) do not prohibit the
Corps from issuing the NWPs prior to
completing the voluntary PEIS. The
issuance of the NWPs will not preclude
the ability of the Corps to modify the
NWP program or modify individual
NWPs in accordance with any need for
changes identified in the PEIS. The
Corps is in compliance with NEPA
because a FONSI for the NWP program
was issued on June 23, 1998, and the
Corps issues decision documents,
including EAs, for each NWP when the
NWP is issued, reissued, or modified.
Specific comments concerning the PEIS
will be addressed through the PEIS
process.
Jurisdictional Issues
In response to the August 9, 2001,
Federal Register notice, we received
numerous comments concerning the
scope of the Corps regulatory authority.
These comments addressed issues such
as excavation activities in waters of the
United States, isolated waters, and
ephemeral streams as waters of the
United States.
One commenter stated that the Corps
should develop regulations that
accurately reflect the regulatory
exemptions for excavation because all
maintenance activities associated with
any existing structures or fill are exempt
from Section 404 permit requirements.
One commenter stated that the
definition of ‘‘loss of waters of the
United States’’ in the NWPs should be
clarified to exclude excavation. As an
example, this commenter said that if an
activity involves non-jurisdictional
excavation and temporary stockpiling of
excavated material, those activities
should not be included in the
measurement of ‘‘loss of waters of the
United States’’.
In the January 17, 2001, issue of the
Federal Register (66 FR 4550), we
promulgated a final rule that revised the
Clean Water Act regulatory definition of
the term ‘‘discharge of dredged
material’’ to address recent Court
decisions. It is important to note that
not all excavation activities in waters of
the United States result only in
incidental fallback into waters of the
United States. Excavation activities that
result in the redeposit of dredged
material into waters of the United
States, other than incidental fallback,
require a Section 404 permit. Excavated
material that is temporarily stockpiled
in waters of the United States before it
is removed to a permanent deposit area
requires a Section 404 permit. We have
retained the excavation language in the
new and modified NWPs and the
definition of ‘‘loss of waters of the
United States’’ because some of these
activities may be authorized by NWPs.
All excavation activities in navigable
waters of the United States require
Section 10 permits, even if those
excavation activities result only in
incidental fallback into Section 10
waters. NWPs issued under Section 10
of the Rivers and Harbors Act may
authorize excavation activities in
navigable waters of the United States.
Two commenters indicated that the
NWPs should be modified to ensure
compliance with the recent Solid Waste
Agency of Northern Cook County v.
United States Army Corps of Engineers
et al. decision (U.S. Supreme Court No.
99–1178).
The Solid Waste Agency of Northern
Cook County v. United States Army
Corps of Engineers et al. decision
related to the scope of CWA jurisdiction
over non-navigable isolated intrastate
waters. The NWPs do not establish
jurisdiction that does not otherwise
exist. They only authorize activities that
require a permit. If an activity does not
require a permit, the NWPs do not
create a requirement for a permit. If an
activity does require a permit and
complies with the terms and conditions
of an NWP, that activity may be
authorized by the NWP.
A couple of commenters suggested
that the Corps needs to improve its
definition of ordinary high water mark
(OHWM) because the current definition,
which is based on physical evidence,
does not provide any criteria regarding
the frequency of flow necessary to
establish an OHWM. These commenters
stated that Corps personnel use the
outermost banks to identify OHWMs,
regardless of how frequently flows
actually inundate the area between
banks. Another commenter stated that
Congress did not intend to extend
Federal jurisdiction to discharges of
dredge or fill material into areas that are
ordinarily dry. This commenter
indicated that a Corps district is
asserting jurisdiction up to the limits of
the 25-year floodplain. This commenter
also suggested that the Corps limit its
jurisdiction to areas with an OHWM
within a less frequently flooded
floodplain and that areas outside of the
1 to 5 year floodplain should not be
considered to be within the OHWMs.
The Corps agrees that we should look
at improving the definition of the
OHWM. This will be the subject of a
separate review. However, no schedule
has been developed for this review. The
frequency and duration at which water
must be present to develop an OHWM
has not been established for the Corps
regulatory program. District engineers
will use their judgment on a case-bycase
basis to determine whether an
OHWM is present. The criteria used to
identify an OHWM are listed in 33 CFR
328.3(e).
Procedural Comments
One commenter said that it was
unreasonable to: (1) Expect the public to
travel to a public hearing to provide
comments on the August 9, 2001,
proposal in a government building in
Washington DC; (2) schedule only one
public hearing; (3) expect public
comments to reach the Corps in a timely
manner when the Federal Register
notice had only a physical address for
receiving public comments; and (4)
expect the public to receive updated
information regarding the rescheduling
of the public hearing because of
computer viruses and the absence of
phone numbers or e-mail addresses in
the Federal Register notice. This
commenter also stated that it was not
reasonable to expect public comments
on proposed NWP regional conditions
to be submitted in a timely manner
because the physical addresses
published in the August 9, 2001,
Federal Register notice contained
errors, the deadline for public comment
on the regional conditions was not
published in the Federal Register, and
the comment period for proposed
regional conditions preceded the
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deadline for public comment published
in the Federal Register notice. This
commenter said that future public
notices by the Corps should include an
electronic mail address, a physical
address, and a telephone number for
submitting of non-electronic comments.
This commenter also asserted that
additional public hearings should be
conducted throughout the country to
provide adequate opportunities for the
general public to provide public
comment prior to the reissuance and
modification of the NWPs.
In response to the August 9, 2001,
Federal Register notice announcing the
proposed changes to the NWPs, we
received over 2,100 comments and had
19 people attend the public hearing in
Washington, DC. We believe that the
level of participation is consistent with
other proposals. We understand that the
events on September 11, 2001, has
affected the general public and we have
made reasonable efforts to accommodate
the public. In response to these events,
we postponed and rescheduled the
September 12, 2001, public hearing and
extended the 45-day comment period by
15 days. The new date of the public
hearing and the extension of the
comment period were announced on
our web page at http://
www.usace.army.mil/inet/functions/cw/
cecwo/reg and published in the
September 18, 2001 (66 FR 48121), and
September 21, 2001 (66 FR 48665),
issues of the Federal Register,
respectively. We believe that sufficient
time and notice was given to the public
to either participate in the public
hearing or submit written comments. A
physical address, web address that
allowed electronic submittal of
comments, and a telephone number
with a point of contact were included in
the August 9, 2001, September 18, 2001,
and September 21, 2001, issues of the
Federal Register. While some addresses
within the notice may have contained
zip code errors, we continue to provide
the best information possible. We
disagree that additional public hearings
need to be conducted and maintain our
position that we have fully complied
with the public hearing requirements of
the Clean Water Act.
One commenter said that the August
9, 2001, Federal Register notice
contained several significant changes to
the NWPs that were not discussed in the
preamble. This commenter cited the
addition and removal of a particular
word or clauses that may narrow the
protection provided by the terms and
conditions of an NWP, the general
conditions, and the definitions. One
commenter said that NWPs should be
coordinated with state agencies and the
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public and that any permit conditions
requested by state agencies should be
incorporated into the NWPs.
The preamble to the August 9, 2001,
Federal Register notice discussed the
substantive changes that we proposed
for the NWPs and general conditions.
We do not believe it was necessary to
explain all minor editing changes to the
NWPs, general conditions, and
definitions in the preamble. However,
there were a few errors in the proposal
that contained some substantive
changes that we did not intend to
propose as changes. These were not
discussed in the proposal and have been
changed back to the original March 9,
2000 language. These errors are
discussed in the discussion of the NWP,
general condition or definition where
they occurred. Each Corps district
issued public notices announcing the
publication of the August 9, 2001,
Federal Register notice for the proposal
to reissue and modify the NWPs. The
district public notice process included
coordination with state agencies and the
public, to solicit their comments on
regional issues related to the reissuance
and modification of the NWPs,
including any proposed regional
conditions. We do not agree that all
conditions requested by state agencies
should be incorporated into regional
conditions. Division engineers approve
only those regional conditions that are
necessary to ensure that the NWPs
authorize activities with minimal
adverse effects on the aquatic
environment, individually and
cumulatively. However, state and Tribal
Section 401 water Quality Certification
and state Coastal Zone Consistency
conditions are included as conditions to
the NWPs
One commenter said that the August
9, 2001, proposal to reissue and modify
NWPs should have had information
concerning the cost of administering the
NWP program. This commenter stated
that costs of administering the NWP
program can be reduced by requiring
individual permits for all NWP
activities that result in more than
minimal adverse effects on the aquatic
environment and require mitigation.
Another commenter asserted that the
August 9, 2001, Federal Register notice
should have included statistics on the
current NWP program, such as the
number of activities authorized by
NWP, the amount of staff time expended
to process NWP verification requests,
and the amount of staff time used for
compliance and enforcement.
We did not believe it was necessary
to discuss the costs of administering the
NWP program in the August 9, 2001,
Federal Register notice. Requiring
2027
individual permits for all NWP
activities that may result in more than
minimal adverse environmental effects
before consideration of mitigation
would not reduce costs. The individual
permit process is more costly to
implement than the NWP process.
Increasing the number of individual
permits processed by the Corps would
increase the costs to implement the
Corps regulatory program. We do not
agree that it was necessary to include
statistics on the NWP program or the
amount of staff time expended to
implement the NWP program in the
August 9, 2001, notice.
Discretionary Authority
A few commenters objected to the
NWPs because they place a large part of
the responsibility on discretionary
authority at the district and division
levels to reduce the adverse individual
and cumulative effects to the aquatic
environment to a minimal level. One
commenter suggested that more
restrictive national standards on the
NWPs should be imposed instead of
relying upon the discretionary authority
process. One commenter stated that the
use of discretionary authority needs
further guidance. Another commenter
requested clear criteria district
engineers should use to incorporate
safeguards as a result of discretionary
authority.
We disagree with these commenters
because the PCN and discretionary
authority processes provide substantial
protection for the aquatic environment.
The PCN requirements of the NWPs
allows case-by-case review of activities
that have the potential to result in more
than minimal adverse effects to the
aquatic environment. If the adverse
effects on the aquatic environment are
more than minimal, then a district
engineer can either add special
conditions to the NWP authorization to
ensure that the activity results in no
more than minimal adverse
environmental effects or exercise
discretionary authority to require an
individual permit. We believe that
district engineers are the best qualified
to identify projects or activities at the
local level that may result in more than
minimal adverse effects to the aquatic
environment. In addition, division
engineers can add regional conditions to
the NWPs to lower the PCN threshold or
otherwise further restrict the use of the
NWPs to ensure that the NWPs
authorize only activities with no more
than minimal adverse effects on the
aquatic environment in a particular
watershed or other geographic region.
The functions and values of aquatic
resources differ greatly across the
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2028 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
country. Therefore, minimal effects
determinations for proposed NWP
activities should be made at the local
level by district engineers. We do not
agree that guidance concerning the use
of discretionary authority needs to be
developed and implemented at the
national level.
Compliance With the Endangered
Species Act
A couple of commenters said that the
Corps should initiate formal Endangered
Species Act (ESA) consultation for the
NWP program. One commenter
suggested that NWPs be subject to
national and district-level ESA
assessments and formal consultation.
One commenter indicated that the Corps
is violation of section 7 of the ESA for
failing to complete the mandatory
formal consultation process with the
U.S. Fish and Wildlife Service (FWS)
and National Marine Fisheries Service
(NMFS) prior to reissuing and
implementing the NWPs.
The Corps has initiated formal
programmatic ESA consultation with
the U.S. FWS and NMFS for the NWP
program in 1999. A draft Biological
Opinion has been prepared, but a final
Biological Opinion has not been issued
to date. A section 7(d) determination
that the NWP reissuance will not
foreclose any options has been
prepared. Further, we believe that the
NWPs, through the requirements of
General Condition 11, comply with
ESA. Further where necessary for
specific cases we use the interagency
ESA section 7 consultation regulations
at 50 CFR part 402 when determining
compliance with ESA. General
Condition 11 requires a non-federal
permittee to notify the district engineer
if any listed species or designated
critical habitat might be affected or is in
the vicinity of the proposed activity, or
if the proposed work is located in
designated critical habitat. General
Condition 11 also states that the
permittee 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 by NWP. General
Condition 11 further indicates that the
NWP does not authorize the taking of
any endangered species.
A few commenters indicated that
NWPs create cumulative impacts that
affect endangered species. One
commenter suggested that the Corps
prohibit the use of NWPs in proximity
to areas containing habitat that may be
used by threatened or endangered
species. A couple of commenters
objected to General Condition 11,
stating that it places the responsibility
of determining whether a proposed
activity may affect a threatened or
endangered species in the hands of the
prospective permittee.
To address cumulative impacts that
affect endangered species, division
engineers can impose regional
conditions on the NWPs and district
engineers can add case-specific special
conditions to NWP authorizations to
address impacts to endangered or
threatened species or designated critical
habitat. For example, regional
conditions can prohibit the use of NWPs
in certain geographic areas or require
PCNs for all activities in areas inhabited
by endangered or threatened species.
Some Corps districts have conducted
programmatic ESA consultation to
address activities regulated by the Corps
that may affect Federally-listed
endangered or threatened species.
General Condition 11 requires nonfederal
permittees to notify the Corps if
any Federally-listed endangered or
threatened species or designated critical
habitat might be affected by the
proposed work. Those activities that
will not affect any Federally-listed
endangered or threatened species or
designated critical habitat do not require
notification to the district engineer. The
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
adversely modify designated critical
habitat. The implementation of General
Condition 11, regional conditions, and
case-specific special conditions will
ensure that the NWP program complies
with the ESA.
Regional Conditioning of the
Nationwide Permits
One commenter stated that the
preamble of the August 9, 2001, Federal
Register notice makes it clear that in
taking into account these regional
differences, district engineers can
change notification thresholds or
require notification for all activities
within a particular watershed or
waterbody. This commenter indicated
that district engineers should also have
the discretion to eliminate notification
requirements, increase acreage limits,
add permits, and authorize activities
where the impacts to the environment
will be minimal based upon the regional
conditions.
Division engineers cannot modify the
NWPs by adding regional conditioning
to make the NWPs less restrictive. Only
the Chief of Engineers can modify an
NWP to make it less restrictive, if it is
in the national public interest to do so.
Such a modification must go through a
public notice and comment process.
However, if a Corps district determines
that regional general permits are
necessary for activities not authorized
by NWPs, then that district can develop
and implement regional general permits
to authorize those activities, as long as
those regional general permits comply
with section 404(e) of the Clean Water
Act.
One commenter stated that regional
conditions are not uniformly applied by
district engineers throughout the
country and in some cases can
potentially result in less protection for
the aquatic resources. This commenter
suggested that Corps districts adopt
stronger regional conditions or institute
stronger national conditions. One
commenter agreed that regional
conditions are an essential tool for
protecting valuable aquatic resources
and accounting for differences in
aquatic resource functions and values
across the country. One commenter
stated that regional conditions have
broadened the applicability of NWPs to
make them less protective.
We believe that imposing more
restrictive national terms and
limitations on the NWPs is unnecessary.
The terms and conditions of the NWPs
published in this Federal Register
notice, the PCN process, and the
regional conditioning process will
ensure that the NWPs authorize
activities with no more than minimal
adverse effects on the aquatic
environment, individually and
cumulatively. It is far more efficient to
develop NWPs that authorize most
activities that have no more than
minimal adverse effects on the aquatic
environment and provide division and
district engineers with the authority to
limit the use of these NWPs through
discretionary authority or by adding
conditions to the NWPs.
For particular regions of the country
or specific waterbodies where
additional safeguards are necessary to
ensure that the NWPs authorize only
those activities with no more than
minimal adverse effects, regional
conditions are the appropriate
mechanism to address those concerns.
For example, regional conditions can
restrict the use of NWPs in high value
waters for those activities that do not
require submission of a PCN. Division
and district engineers are much more
knowledgeable about local aquatic
resource functions and values and can
prohibit or limit the use of the NWPs in
these waters. We believe that regional
conditioning of the NWPs provides
effective protection for high value
wetlands and other aquatic habitats.
One commenter stated that NWPs
could affect treaty and other Indian
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ights and would like to consult with
the Corps on a government to
government basis to develop regional or
national conditions that will address the
concerns. One commenter
recommended regional conditions that
would require notification of Tribes and
provide appropriate Tribes with the
opportunity to comment on particular
NWP activities.
We believe that General Condition 8,
Tribal Rights, addresses the issue of
tribal rights and the use of NWPs.
Division and district engineers can
consult with Tribes to develop regional
conditions that will ensure that tribal
rights are adequately addressed by the
NWP process. Division engineers can
regionally condition the NWPs to
require coordination with Tribes when
proposed NWP activities may affect
Tribal lands or trust resources.
One commenter said that regional
conditions should be developed for all
NWPs to conserve Essential Fish
Habitat. A couple of commenters
indicated that NWPs should not be used
in any areas that have been ranked as
high value wetlands or critical resource
waters. One commenter indicated that
NWPs should not be used to authorize
Section 10 and Section 404 activities in
the Lower Hudson River. One
commenter indicated that regional
conditions are troubling because there
are no central, definitive sources for
information concerning those
conditions.
We agree that regional conditions are
an effective mechanism to help ensure
that the NWPs comply with the
Essential Fish Habitat provisions of the
Magnuson-Stevens Fishery
Conservation and Management Act. We
require division and district engineers
to coordinate with regional offices of the
National Marine Fisheries Service to
develop and implement regional
conditions to conserve Essential Fish
Habitat. Areas with high value wetlands
or critical resource waters can be
subjected to regional conditions, to
ensure that activities authorized by
NWPs do not result in more than
minimal adverse effects to those waters.
General Condition 25 addresses the use
of certain NWPs in designated critical
resource waters. This general condition
states that district engineers can
designate additional critical resource
waters after notice and opportunity for
public comment. The Corps has a
general map of Corps division and
district boundaries that is available on
the Internet at http://
www.usace.army.mil/
where.html#Divisions. This interactive
map also provides links to the home
pages of Corps districts. Due to the scale
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
of this map and since some Corps
district boundaries are based on
watershed boundaries, prospective
permittees should contact the nearest
Corps district office to determine which
Corps district will review their PCN,
permit application. Most Corps districts
post their regional conditions on their
Internet home pages.
One commenter stated that the last
paragraph on page 42070 of the August
9, 2001, Federal Register notice
contains an incorrect statement. This
paragraph states that: ‘‘In addition to the
‘‘notification’’ provision, regional
conditions may be developed by District
Engineers to take into account regional
differences in aquatic resource functions
and values across the country and to put
mechanisms into place to protect them.
After identifying the geographic extent
of ‘‘higher’’ quality aquatic systems,
District Engineers can either change
‘‘notification’’ thresholds, or require
‘‘notification’’ for all activities within a
particular watershed or waterbody to
ensure that NWP use and authorization
only occurs for activities with minimal
adverse effects, individually and
cumulatively.’’ This commenter said
that district engineers can only
recommend regional conditions and that
regional conditions must be approved
by division engineers.
This commenter is correct, because
regional conditions must be approved
by division engineers after a public
notice and comment period. District
engineers can propose regional
conditions at any time, but the division
engineer must approve those regional
conditions before they become effective.
Water Quality Certification/Coastal
Zone Management Act Consistency
Determination Issues
One commenter suggested that
agencies should work together to make
early agreements on certification
conditions or denials of certification by
states and tribes under section 401 of
the Clean Water Act and section 307 of
the Coastal Zone Management Act
(CZMA). This would improve protection
of the aquatic resources, benefit the
regulated community, and reduce
duplication of workload. Some
commenters indicated that NWPs
should be conditioned to prohibit
construction by an applicant until all
state and local permits are issued. A few
commenters stated that the Corps
should not issue a provisional NWP
verification letter if the state denies
Water Quality Certification because
local regulators are easily persuaded to
issue their permit.
We encourage States and Tribes to
coordinate with Corps districts to
2029
complete and expedite water quality
certification (WQC) and coastal zone
certification for the NWPs. The
proposed changes to the NWPs that
were announced in the August 9, 2001,
Federal Register notice are minor, and
we believe that the proposed changes
will not substantially affect the water
quality certification and coastal zone
consistency determination processes.
Concurrent with the publication of the
August 9, 2001, Federal Register notice,
Corps districts and divisions were
required to issue public notices to
solicit comments on proposed regional
conditions and initiate coordination
with states and Tribes for the purposes
of WQC and CZMA consistency
determinations. The NWPs published in
today’s Federal Register notice have not
been extensively modified from the
proposal published in the August 9,
2001, Federal Register. These NWPs
will become effective in 60 days. Since
there have been few changes to the
proposed NWPs, we believe that 60 days
is sufficient time for states and Tribes to
complete their WQC and CZMA
consistency determinations. We believe
that it is incumbent upon the Corps to
let the applicant know when we have
completed the Corps review and what
the Corps decision is. It is up to the
applicant to get the required individual
State 401 water quality certification
from the state, where the state has
denied a water quality certification for
the NWP as a whole.
Discussion of Comments and Final
Permit Decisions
Nationwide Permits
The following is a discussion of the
public comments received on the
proposed nationwide permits and our
final decisions regarding the NWPs, the
general conditions, and the definitions.
The Corps prepared decision documents
on each of the NWPs, which are
available on the Corps web site,
indicated above. Following the
discussion of the public comments are
the final NWPs, the final general
conditions, and the final definitions.
1. Aids to Navigation. There were no
changes proposed to this nationwide
permit. Since there were no comments
on this nationwide permit. The
nationwide permit is reissued without
change.
2. Structures in Artificial Canals.
There were no changes proposed to this
nationwide permit. There were no
comments on this nationwide permit.
The nationwide permit is reissued
without change.
3. Maintenance. We did not propose
any change to this nationwide permit.
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However, there were several comments
on this NWP. One commenter suggested
that ‘terms’ should be applied to
maintenance of all flood protection
works that the Corps built in
partnership with the State, and that are
now maintained by local entities or by
ourselves.
We presume that this comment refers
to ‘‘term limits’’ on the time that may
elapse between maintenance events in
flood protection projects. Although this
idea may have merit in the context of
the original project authorization, or
with respect to maintenance agreements
with local sponsors, we do not believe
that such limits can or should be
imposed through NWP 3. We do not
intend this NWP to encourage or compel
maintenance activities to be conducted
more frequently than is necessary.
However, the eligibility requirements of
NWP 3(i) do encourage maintenance to
be conducted before the structure or fill
falls into such a state of disrepair that
it can no longer be considered
‘‘serviceable.’’
Another commenter expressed the
opinion that NWP 3 addressed activities
that are exempt from regulations under
section 404(f)(1) of the Clean Water Act
This is not correct. NWP 3 does not,
in any way, extend Clean Water Act or
River and Harbor Act jurisdiction to any
area or activity that is not subject to
these laws. Any activity that is exempt
does not require a permit for the Corps
including NWP 3.
One commenter suggested that while
bioengineered projects are less
environmentally damaging than riprap
and offer benefits to salmon, the
presence of wood in some bank
protection structures has the potential to
interfere with treaty fishing access by
preventing the use of nets in areas.
Another commenter stated that Tribes
should be informed of all requests for
this NWP that involve in-water work
and granted 30 days to provide
comments.
General Condition 8, Tribal Rights,
does not allow an activity or its
operation to impair reserved tribal
rights, including but not limited to,
reserved water rights and treaty fishing
and hunting rights. Compliance with the
general condition for NWP 3 regarding
interference with treaty fishing rights, or
other tribal rights, and the
determination of any relevant and
necessary modification of this NWP is
the responsibility of our Division and
District offices.
One commenter suggested that riprap
should not be allowed in any waterbody
where habitat-forming processes are
limited, as identified by a state or
federal watershed analysis for salmon
and/or their habitat, and where the
riprap would interfere with these
processes. This commenter also
suggested that the placement of riprap
should be the minimum necessary to
protect the structure.
We believe that NWP 3, as proposed,
will limit the placement of riprap to the
minimum necessary to provide adequate
erosion protection. However, applicable
law does not impose any restriction
related to the habitat-forming processes
mentioned by this commenter. In light
of this, we believe that it would be
inappropriate to impose such a policy
under any Corps permit process.
Although the consideration of such
concerns may be proper in the context
of authorizations for new work, we do
not agree that it should be a compelling
consideration in the context of the kinds
of maintenance activities that are
eligible for authorization under this
NWP.
One commenter suggested that the
Corps prohibit the addition of new
riprap or, at a minimum, require
‘‘Notification’’ if new riprap is
proposed, and that the Corps prohibit
the placement of riprap or any other
bank stabilization material in any
special aquatic site, including wetlands.
Another commenter stated the permit
should prohibit ‘‘removal of
accumulated sediments’’ in special
aquatic sites.
Since this NWP only authorizes
activities that restore an area to its
previous condition, we do not believe it
is appropriate to prohibit the
maintenance of structures or fills simply
because a special aquatic site may have
formed in areas that require such repair.
Similarly, with respect to the discharge
of riprap or other bank stabilization
materials, we do not believe that
restoration of banks or of stabilization
projects, within the limits of NWP 3,
should be precluded by the presence of
a special aquatic site.
One commenter suggested that this
NWP should not be issued for
maintenance work on culverts that fail
to meet appropriate standards for the
upstream and downstream passage of
fish, or issued for culverts that do not
allow for the downstream passage of
substrate and wood. This commenter
also suggested that if the proposed
action is to remove the build-up of
substrate at the upstream end of the
culvert, or from the culvert itself, a
condition of the permit should be that
all substrate of spawning size and all
wood of any size should be placed at the
downstream end of the culvert.
We do not believe there are any
national standards that we can apply to
NWP 3 to assure that an adequate
passage for fish and substrate materials
is provided in the maintenance
situations that can be authorized under
this NWP. However, we agree that, to
the extent that actions to enhance such
fish and substrate passage can be
incorporated into individual NWP 3
authorizations, they should be included
as best management practices. We will
encourage Corps districts to consider
this issue when approving maintenance
of culverts. Any redeposit of excavated
spawning-size substrate may be
authorized under NWP 18, but is subject
to the limitations of that NWP
Several commenters indicated the
Corps should withdraw section (iii) as
the dredging and discharge allowed is
double that authorized by NWPs 18 and
19 and, as such, will result in greater
than minimal adverse effects. Several
commenters also offered the opinion
that restoring upland areas damaged by
a storm, etc., has nothing to do with
maintaining currently serviceable
structures. Furthermore, some
commenters suggested that it may be
difficult to determine if the ‘‘damage’’ is
due to a discreet event after a two-year
period. Additionally, there is no acreage
limit for this section and placement of
‘‘upland protection structures’’ will
result in changes in the upstream and
downstream hydromorphology of a
stream.
We do not agree that the mere fact
that the amount of the dredging or
discharge authorized under this NWP,
as compared to the authorization of
similar activities under other NWPs, in
any way indicates that the effects are
more than minimal. The question of
whether or not restoring upland areas
has anything to do with maintaining
currently serviceable structures is not
relevant to the consideration of this
NWP since no such relationship is
required by the permit itself, or by the
regulations governing the issuance of
such permits. We do agree that, in some
cases, it may be difficult to determine
whether any damage is due to a discrete
event. For this reason, the NWP
prescribes only limited criteria in this
regard, and it affords considerable
discretion to the District Engineer to
determine when there is a reasonable
indication that the damage being
repaired qualifies for authorization
under NWP 3.
Two commenters indicated the permit
can be used to expand the scope of other
NWPs, including 13, 18, 19 and 31
which could result in more than
minimal impact to the environment.
General condition 15 addresses the
use of multiple NWPs for a project. This
condition provides that more than one
NWP can only be used if the acreage lost
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does not exceed the acreage limit of the
NWP with the highest specified acreage
limit. Normally, when NWPs are
combined for a project, the combined
impacts are no more than minimal. We
rely on our District offices to provide
reasonable final assurance that the use
of one or more NWPs, as they are
applied in actual situations, do not
result in more than minimal impacts.
Districts have discretionary authority to
require individual permits in situations
where there is reason to believe that any
NWP, individually or in combination
with other NWPs, will result in more
than minimal impacts.
One commenter suggested that the
permit (inappropriately) encourages
reconstruction in floodplains without
questioning the need or desirability of
doing so.
We believe that, inherent in the
authorization of a structure or fill, is the
reasonable right to maintain those
structures or fills. With respect to the
kinds of activities that are eligible for
authorization under NWP 3, we do not
agree that an assessment of need or
desirability, is appropriate or necessary
to ensure that the relevant effects are no
more than minimal, including the
effects on the floodplain.
Several commenters stated the lack of
a definition of ‘‘discreet event’’ ignores
the natural, hydrological processes at
work in stream systems and allows
landowners to prevent natural
meandering processes within a
waterway caused by normal storm
events.
On the contrary, NWP 3 clearly
recognizes that maintenance may be
required either as a result of a discrete
event such as a storm, or as a result of
non-discrete forces. However, we do not
agree that landowners should be
prevented or unduly constrained from
maintaining legitimately constructed
structures or fills that are subject to the
effects of natural hydrologic processes
of adjoining waters.
A couple of commenters stated
allowing riprap and gabions will result
in the permanent channelization of
natural streams by inhibiting their
natural movement within the floodplain
with major direct and secondary effects
to the aquatic environment, as well as
adverse hydrologic affects to
downstream properties.
Since NWP 3 only authorizes
activities that repair or return a project
to previously existing conditions, we do
not believe that it will result in any
effects that did not previously accrue
from the existence of the original
structure or fill, and we believe that the
maintenance activities authorized under
this NWP will have no more than
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
minimal adverse effects on the aquatic
environment, individually and
cumulatively.
One commenter stated that NWP 3(i)
should be modified to also allow for the
maintenance of existing structures or fill
that did not require a permit at the time
they were constructed.
NWP 31 does authorize regulated
activities related to the repair,
rehabilitation, or replacement of
structures or fills that did not require
authorization at the time they were
constructed. As referenced in NWP 3(i),
the regulations at 33 CFR 330.3 provide
an elaboration on this point.
One commenter suggested that NWP
3(ii) should be modified to allow the
Corps District Engineer to waive the
200’ limitation in any direction from the
structure when the aquatic resource
impacts would remain minimal. It
should also specify that areas that are
only excavated with only incidental
fallback, temporary stockpile areas, and
temporary redeposits should not be
included in the 200’ limitation since
such impacts would not cause a loss of
waters of the US.
It is entirely reasonable to conclude
that regulated discharges associated
with the removal of accumulated
sediments that occur more than 200 feet
from a certain structure may have no
more than minimal effects. However,
our intent in qualifying such removal
for eligibility under NWP was to
authorize them as part of the
maintenance of a specific structure, and
not simply because the effects were no
more than minimal. Although we
cannot certify that 200 feet is, in any
way, an absolute distance within which
removals are clearly associated with the
maintenance of the structure, we believe
that it is a reasonable distance for
asserting such association for the
purposes of this NWP. Incidental
fallback associated with otherwise
unregulated activities is not regulated
under section 404 of the Clean Water
Act or under section 10 of the Rivers
and Harbors Act. Temporary stockpiles
and other temporary discharges of
dredged or fill materials in waters of the
US are regulated, but we believe that
they can and should be avoided in most
maintenance situations. Although they
may not result in a permanent or net
loss of waters of the US, and they may
have no more than minimal adverse
effects on the aquatic environment, we
do not believe that they are necessary in
most cases. They can also lead to
discharges of pollutants into waters of
the US that may or may not have
minimal adverse effects, depending on
the circumstances. For these reasons, we
are not including such activities among
2031
those eligible for authorization under
NWP 3.
One commenter suggested that NWP
3(iii) should be modified to allow the
Corps District Engineer to waive the
limitation which states that dredging
may not be done primarily to obtain fill
for restorative purposes when the
aquatic resource impacts would remain
minimal or when it is environmentally
advantageous to allow some
modification of pre-existing contours or
discharges of additional fill material to
prevent recurring damage and the
associated repeated disturbance to
continually repair the damage. This
commenter further suggested that the
District Engineer could then exercise
more discretion in terms of requiring
watershed based mitigation banks and
in-lieu fee programs for additional
impacts while requiring mitigation at a
site of superior watershed importance.
This NWP focuses on the repair and
restoration of currently serviceable
structures and not on the source of such
material. We are not convinced that
allowing dredging to obtain the fill
material would normally have no more
than minimal impacts unless there were
also detailed listing of dredging
limitations and conditions. Further, to
establish such limitations we would
need to provide opportunity for public
review and comment. In light of this, we
do not agree that the suggested
expansion of this NWP is appropriate.
This NWP does allow some minor
deviation, but modifications that are
more than minor deviations cannot be
considered to be ‘‘maintenance’’ as it is
envisioned in this NWP and, depending
on the nature and location of such
prospective changes, separate
authorization may be required.
One commenter stated that
individuals should not be able to use
this Nationwide Permit to increase the
area impacted by bank stabilization
structures.
NWP 3 does not authorize any
significant increase in the original
structure or fill. Only minor deviations
that are necessary to effect repairs are
eligible for authorization under this
NWP.
One commenter insisted the
notification requirement should be
removed from NWP 3(ii) and NWP 3(iii)
as these requirements create additional
administrative burden with no increase
in environmental protection or added
value to the process. For NWP 3(iii), the
commenter suggested that the
requirement should be changed to a
post-construction notification in order
to expedite repairs necessary to public
infrastructure.
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2032 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
We believe that these PCN
requirements, as proposed, are a
prudent means of assuring that the
proposed maintenance activities are
limited to those eligible for
authorization under this NWP. We
recognize that the PCN requirement
imposes an additional burden on the
project proponent, but we do not believe
that it is inequitable or, in most
circumstances, substantial. Emergency
permit procedures are available to
authorize such maintenance activities
more quickly in emergency situations.
One commenter suggested that NWP 3
should be withdrawn as it is too broad
for projects to be considered ‘‘similar in
nature’’, or to be able to determine that
the various projects, when considered
individually or cumulatively, will result
in minimal adverse environmental
effects. The commenter also felt that its
limitations are arbitrary and capricious
and potentially could result in the
exposure of highly toxic compounds.
We believe that NWP 3, as proposed,
describes activities that are sufficiently
similar in nature for the purposes of the
NWP Program. Since this NWP only
authorizes activities needed to return a
project to a previously existing
condition that either was authorized or
that was implemented prior to the need
for authorization, we do not agree that
the effects will be more than minimal.
One commenter stated the Corps is
unlikely to obtain adequate information
on whether or not a change in use is
contemplated, what the practicable
alternatives are, or what materials are
used unless an Individual Permit is
required. In light of this, the commenter
suggested that NWP 3 should be
rewritten to prevent serious and
widespread abuses.
We acknowledge that under this NWP
we rely on the applicant’s information
on the intended use and on other
aspects of the regulated activity. Since
this NWP only authorizes activities that
would return a project to previously
existing conditions, we believe that the
likelihood of serious or widespread
abuses is exceedingly low. Further, we
have the authority and use our authority
to enforce compliance with permits,
where necessary. The nationwide
permit is reissued without change.
4. Fish and Wildlife Harvesting,
Enhancement, and Attraction Devices
and Activities. There were no changes
proposed to this nationwide permit.
There were no comments on this
nationwide permit. The nationwide
permit is reissued without change.
5. Scientific Measurement Devices.
There were no changes proposed to this
nationwide permit. One commenter
stated the word ‘‘primarily’’ should be
replaced with the word ‘‘solely’’. We
believe that this change would
unnecessarily restrict the NWP and
require an individual permit in a few
cases, simply because there was a
secondary use or benefit of the scientific
devise. Further, we do not believe that
the requirement for an individual
permit, for that reason, would result in
any added value for the environmental.
The nationwide permit is reissued
without change.
6. Survey Activities. There were no
changes proposed to this nationwide
permit. There were no comments on this
nationwide permit. The nationwide
permit is reissued without change.
7. Outfall Structures and
Maintenance. There were no changes
proposed to this nationwide permit.
One commenter suggested that
notification should be limited to
impacts greater than one acre, and that
the District Engineer should have the
authority to quickly issue this permit,
without agency notification, by placing
conditions limiting construction
activities to periods of low-flow or noflow
in unvegetated ephemeral
watercourses. Another commenter
indicated the Corps should withdraw
NWP 7(ii) since NWP 19 already
provides for minor dredging, or limit the
amount of material to be excavated to 25
cubic yards in order to be consistent
with NWP 19.
The Corps believes that the
limitations on the amount of fill that can
be placed per linear foot is normally
sufficient to ensure that the adverse
effects on the aquatic environment will
be minimal, individually and
cumulatively. We agree that some
impacts can be reduced by conducting
certain activities in waters of the United
Sates during low-flow or no-flow
conditions. However, we also believe
that a prohibition is not necessary or not
practicable in many cases. We believe
that this practice should be encouraged
to further minimize any adverse effects
on the aquatic environment. Therefore,
we have modified general condition 3 to
encourage this practice. We agree that
there is some redundancy between NWP
7(ii) and NWP 19. However, we believe
that NWP 7(ii) should not be eliminated
since it is related to other activities
authorized by NWP 7. Furthermore, the
terms of NWP 7 are specific to that type
of activity.
One commenter said this permit
should prohibit the removal of
accumulated sediments from small
impoundments and special aquatic sites
as these locally support rare, threatened
or endangered water-dependent
organisms.
The Corps does not believe that these
areas normally support rare, threatened
or endangered water dependent
organisms, but this NWP does not
authorize any regulated activity unless
it complies with the Endangered
Species Act. This NWP only allows the
removal of accumulated sediments to
maintain a preexisting depth, to
facilitate water withdrawal at the
location of the water intake.
One commenter insisted that NW7
should be withdrawn as it is too broad
for projects to be considered ‘‘similar in
nature’’, or to be able to determine that
the various projects, when considered
individually or cumulatively, will result
in minimal adverse environmental
effects. The commenter also suggested
that its limitations are arbitrary and
capricious. The Corps believes that the
description of the type of activities will
ensure that those activities authorized
by this NWP will be similar in nature.
Further, we believe that these activities
normally will have no more than
minimal adverse effects on the aquatic
environment, individually or
cumulatively. Further, Division and
District Engineers will condition such
activities where necessary to ensure that
these activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively.
The nationwide permit is reissued
without change, however condition 3
was modified based on a comment on
this NWP as indicated above.
8. Oil and Gas Structures. There were
no changes proposed to this nationwide
permit. However, one commenter
recommended that NWP 8 should be
withdrawn as it is too broad for projects
to be considered ‘‘similar in nature’’, or
to be able to determine that the various
projects, when considered individually
or cumulatively, will result in minimal
adverse environmental effects. The
commenter indicated that this permit
category has the potential for
catastrophic secondary, indirect, and
cumulative adverse impacts, including
adverse impacts to federally listed
threatened or endangered species.
The Corps believes that this NWP is
sufficiently restrictive to protect the
environment. The only structures that
can be authorized under this NWP are
those within areas leased by the
Department of the Interior, Minerals
Management Service. The general
environmental concerns are addressed
in the required NEPA documentation
that the Service must prepare prior to
issuing a lease. Further, Corps
involvement is only to review impacts
on navigation and national security as
stated in 33 CFR 322.5(f). The
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nationwide permit is reissued without
change.
9. Structures in Fleeting and
Anchorage Areas. There were no
changes proposed to this nationwide
permit. However, one commenter
suggested changing the permit to read:
‘‘Buoys, floats and similar nonstructural
devices placed within
anchorage or fleeting areas to facilitate
moorage of vessels where the USCG has
established such areas for that purpose.’’
The Corps believes that this change is
not needed. The current language is
sufficient to ensure that the category of
activities will be similar in nature. We
believe that the suggested language
would not allow certain structures that
are necessary for moorage of vessels to
be authorized within anchorage and
fleeting areas. The types of structures
permitted by this NWP within USCG
established anchorage or fleeting areas
are only those for the purpose moorage
of vessels. We believe that this limits
the type of structure sufficiently to be
considered similar in nature. The
nationwide permit is reissued without
change.
10. Mooring Buoys. There were no
changes proposed to this nationwide
permit, and there were no comments on
this nationwide permit. The nationwide
permit is reissued without change.
11. Temporary Recreational
Structures. There were no changes
proposed to this nationwide permit.
However, one commenter recommended
withdrawing NWP 11 as it is too broad
for projects to be considered ‘‘similar in
nature’’, or to be able to determine that
the various projects, when considered
individually or cumulatively, will result
in minimal adverse environmental
effects. The commenter also stated that
the permit category has the potential for
catastrophic secondary, indirect, and
cumulative adverse impacts, including
adverse impacts to Federally listed
threatened or endangered species.
Another commenter suggested that
temporary buoys, markers, small
floating docks, and similar structures
can interfere with the exercise of treaty
fishing access and, therefore, in an area
subject to treaty fishing, notification to
affected tribes is required. The
commenter further stated the regional
conditions should be added, to require
that such structures shall be removed
from salmon spawning areas prior to
commencement of the spawning season.
We believe that the listing of the type
of activities will ensure that those
activities authorized by this NWP will
be similar in nature. Further, we believe
that normally these activities will have
no more than minimal adverse effects
on the aquatic environment,
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individually and cumulatively. Further,
Division and District Engineers will
condition such activities where
necessary to ensure that these activities
will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. We
agree that this NWP, as with all NWPs,
should not authorize any activity that
may impair reserved tribal rights,
including, but not limited to, those
reserved water rights, and treaty fishing
and hunting rights, as stated in general
condition 8. District and division
engineers will consider the need to add
regional conditions or case-specific
conditions where necessary to protect
such tribal rights. The nationwide
permit is reissued without change.
12. Utility Line Activities. No changes
to this nationwide permit were
proposed. Several commenters raised
issues and suggested changes related to
size and threshold limits and
construction practices. One commenter
said that the permit should contain
height and depth requirements for
utility line installation. Another
commenter suggested that a strict cap
limit on the size of the utility line
should be established. One commenter
suggested that the Corps should require
revegetation, as well as restoration, of
the landscape’s original contours for all
NWP12 projects. One commenter
suggested that sidecasting of material
into wetlands should be prohibited, as
should the construction of permanent
access roads. One commenter suggested
that the Corps should limit temporary
sidecasting to 30 days, rather than 90 to
180 days as currently written. The
commenter also suggested that, because
temporary impacts can have more than
minimal adverse effects, they should be
limited to 1 ⁄2-acre, and total impacts
should be limited to 0.3 acres. One
commenter recommended raising the
acreage limit from 1 ⁄2 acre to one acre.
Another commenter said that the 1 ⁄2 acre
limit is arbitrary and capricious.
Based on our experience, the Corps
believes that the current thresholds and
construction limitations are adequate to
protect the aquatic environment while
allowing needed projects to proceed,
with restrictions. Furthermore, district
engineers can further restrict specific
activities, such as limiting sidecasting to
30 days where necessary. At this time,
we do not believe that it is necessary or
appropriate to increase or reduce the
thresholds.
Several commenters suggest changes
to the preconstruction notification
(PCN) requirement. One commenter
recommended requiring a PCN for all
lines greater than 6″ in diameter. Two
commenters indicated that the absence
2033
of a clear definition of ‘‘mechanized
land clearing’’ and a reasonable
threshold for requiring PCNs creates
regulatory uncertainty and an
unnecessary burden on gas utility and
pipeline construction projects. They
further indicated that the notification
requirement would be more reasonable
and consistent with other NWP criteria
if it only applied when mechanized
land clearing affects more than a
reasonable acreage of forested wetland.
Another commenter recommended
removing the PCN requirements for any
mechanized land clearing that occurs in
forested wetlands for utility rights-ofway.
One commenter stated the Corps
should exempt all utility projects other
than sewer lines from the notification
criteria because it is an unnecessary
burden on non-sewer, energy-related
utility projects, which typically will
cross a water at right angles as opposed
to running parallel to a stream bed that
is within a jurisdictional area. Also, one
commenter suggested we substitute a
Corps-only PCN for activities resulting
in the loss of between 1 ⁄2 and one acre
of waters of the U.S. and a broader PCN
for activities resulting in the loss of
more than one acre. One commenter
recommended reducing the PCN time
period for a Corps response from 45 to
30 days.
The Corps believes that the current
PCN requirements continue to be the
appropriate criteria for determining
when a PCN is required. We do not
believe that an additional PCN
requirement related to the size of the
utility line is appropriate since the
impacts of the utility line are temporary,
and since restoration to preconstruction
contours is required. We believe that
projects involving mechanized land
clearing require a PCN so that the Corps
can ensure that the effect are no more
than minimal. We also believe that the
requirement for agency coordination of
PCNs for activities that affect more than
1 ⁄2 acre for all NWPs, including this one,
should remain in place to avoid
confusion and to be consistent for all
other NWPs. We believe that the 45 day
response time for PCN is appropriate. It
provides adequate time for those NWP
activities that need some extra time to
review. Corps Districts do not routinely
use the 45 day period. Currently the
average review time for NWP
verifications is 18 days.
One commenter stated that natural gas
distribution and pipeline projects
typically only result in incidental
fallback and, as such, should not require
a 404 permit.
The Corps disagrees that such projects
exclusively result in only incidental
fallback. The Corps recognizes that
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2034 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
some excavation activities are likely to
result in only incidental fallback that
does not require a Corps permit under
section 404 of the Clean Water Act.
However, the Corps regards the use of
mechanized earth moving equipment in
waters of the US as resulting in a
discharge of dredged material unless
project specific evidence shows that the
activity results in only incidental
fallback. (See 33 CFR 323.2(d)(2)(i)). The
determination whether a permit is
required will be made on a case-by-case
basis. In addition, the backfill for the
pipeline is a regulated discharge which
requires authorization under section 404
of the Clean Water Act.
A few commenters suggested that the
NWP, as proposed, would eliminate the
1 ⁄2 acre threshold for several activities.
They indicated that the proposed NWP
states that ‘‘activities authorized by
paragraph (i) and (iv) may not exceed a
total of 1 ⁄2-acre loss of waters of the
U.S.’’ whereas the existing NWP states
that ‘‘activities authorized by
paragraphs (i) through (iv) may not
exceed a total of 1 ⁄2-acre loss of waters
of the United States.’’ Since the current
NWP language more clearly indicates
that the total loss may not exceed 1 ⁄2acre,
they recommended that the current
language should be retained.
The Corps agrees with this comment.
The change was an error and the Corps
did not intend to change this NWP. The
current language will be retained.
Several commenters indicated that the
discharge of dredged or fill material
under this NWP could adversely affect
a number of species listed under the
Endangered Species Act.
The Corps believes that General
Condition 11 is adequate to protect
endangered species. No NWP authorizes
any activity that does not comply with
the Endangered Species Act.
One commenter recommended that
the Corps prohibit ‘‘stacking’’ NWP 12
authorizations to allow multiple
crossings, or to allow the use of NWP 12
in combination with any other NWP.
This NWP can only be used once for
a pipeline crossing of a water of the
United States. A pipeline project may
cross more than one stream. However,
each of these separate and distinct
crossings is considered a single and
complete crossing in accordance with
Corps regulations at 33 CFR 330.2(i).
A few commenters recommended that
the use of NWP12 for water intakes
should not be approved because the low
head dams typically associated with
such structures can violate general
condition 4. Some commenters also
indicated that water withdrawal projects
have different requirements than
standard utility line crossings resulting
in alterations to natural flow regimes
that cannot be considered under this
NWP.
NWP 12 specifies that all activities
authorized by this NWP must comply
with General Condition 4. Furthermore,
NWP 12 cannot be used to authorize
low head dams. Such structures would
require an individual permit or some
other general permit.
Two commenters requested the Corps
revoke NWP12(ii) since they believed
that it is unnecessary to construct such
facilities in wetlands. They believe that
providing an easily attainable
authorization for such construction will
actually encourage the placement of
utility lines in wetland areas, resulting
in an increase in the loss of wetlands.
We agree that any unnecessary
construction of utility line substations
in wetlands should be avoided.
However, where such construction
cannot be avoided as a practical matter,
we believe that the limitations we have
imposed in the NWP will ensure that
any adverse effects on the aquatic
environment will be no more than
minimal, individually and
cumulatively.
One commenter suggested that NWP
12 should be conditioned to require
BMP’s on private lands only, since
federal and state land managers are
more likely to impose conditions on
properties under their control.
We believe that the term and
conditions are adequate to ensure that
any adverse effects on the aquatic
environment will be no more than
minimal, individually or cumulatively.
The Corps districts will add regional or
case specific conditions where they
determine a need for such conditions.
One commenter said that NWP 12
should be withdrawn as it is too broad
for projects to be considered ‘‘similar in
nature’’, or to be able to determine that
the various projects, when considered
individually or cumulatively, will result
in minimal adverse environmental
effects. The permit category has the
potential for catastrophic secondary,
indirect, and cumulative adverse
impacts, including adverse impacts to
federally listed threatened or
endangered species.
We believe that the minor nature of
these types and categories of activities
are similar in nature. We further believe
that the conditions and specified
thresholds will ensure that the activities
will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. The
thresholds have been developed based
on years of experience and were
developed to consider most effects that
could occur in many areas of the
country. However, Division and District
Engineers will condition such activities
where necessary to ensure that those
activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. Activities authorized by
this NWP must comply with general
condition 11 to ensure that the activity
is in compliance with the Endangered
Species Act.
One commenter suggested we remove
the sentence ‘‘waters of the United
States temporarily affected by filling,
flooding, excavation, or drainage, where
the project area is restored to
preconstruction contours and
elevations, are not included in the
calculation of permanent loss of water
of the United States.’’
The Corps has established the
threshold limits for all NWPs to be for
permanent loss of waters of the US.
Further we have establish the thresholds
to provide for the Corps to be able to
look at those projects to ensure that
there will be no more minimal adverse
effects on the aquatic environment,
individually or cumulatively. Because
the temporary discharges do not result
in long lasting impacts and any short
term impacts are less per acre than
permanent, adding those temporary
impacted acreage to permanent acreage
would not provide an accurate measure
of the potential impacts that may result
in more than minimal effects.
One commenter recommended that a
threshold of 1 ⁄2-acre should be used
below which no compensatory
mitigation should be required, unless a
District Engineer determines otherwise.
Another commenter suggested the
changes in values and functions
associated with the permanent
conversion of maintaining gas line
rights-of-way are more likely to be
beneficial than detrimental. Because of
the benefits, as well as the very limited
extent of vegetation change, a mitigation
ratio of 1:1 should be adopted for
wetland disturbances above 1 ⁄2-acre.
One commenter suggested we remove
the paragraph that characterizes the
conversion of a forested wetland to an
herbaceous wetland as a ‘‘permanent
adverse effect’’ that requires mitigation.
Compensatory mitigation should not be
required as well-maintained herbaceous
wetlands are of significant value and
often provide greater ecological
functions. Additionally, many utility
construction and maintenance activities
result in only temporary effects on
wetlands.
The Corps believes that mitigation
should be required to ensure that any
adverse effects on the aquatic
environment will be no more than
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minimal, individually or cumulatively.
We have proposed to modify General
Condition 19 concerning mitigation
requirements for the NWPs. See the
preamble discussion on General
Condition 19 for our response to
mitigation comments. The nationwide
permit is reissued without change.
13. Bank Stabilization. The Corps
proposed no changes to this NWP. One
commenter said that this NWP should
be withdrawn because it is too broad to
meet the ‘‘similar in nature’’
requirement of general permits and it
authorizes activities that may result in
more than minimal adverse
environmental effects. This commenter
also stated that this NWP has the
potential for substantial secondary,
indirect, and cumulative adverse
impacts, including adverse impacts to
federally listed threatened or
endangered species and environmental
damage at riprap extraction sites.
Another commenter stated that the
Corps needs to develop a method to
document, analyze, and minimize
environmental impacts from all bank
stabilization activities. One commenter
stated that this NWP authorizes
activities that adversely affect natural
stream processes, is contrary to current
practices and philosophies of natural
stream rehabilitation, and impedes
future restoration work. A couple of
commenters suggested that the Corps
adopt a ‘‘no net loss in natural stream
banks’’ policy, requiring the removal of
one linear foot of bank stabilization for
every linear foot of new bank
stabilization. Two commenters stated
that the Corps should direct its bank
stabilization and bank restoration
programs toward the goal of maintaining
and restoring natural stream processes
to the Nation’s rivers and streams.
This NWP complies with the ‘‘similar
in nature’’ requirement of general
permits, including nationwide permits,
even though there are numerous
methods of bank stabilization that can
be authorized by this NWP. The terms
and conditions, including the
notification requirements and the ability
of division and district engineers to
impose regional and case-specific
conditions on this NWP, will ensure
that the activities authorized by this
NWP will result in no more than
minimal individual and cumulative
adverse effects on the aquatic
environment. For those NWP 13
activities that require notification,
district engineers will review the
proposed work to ensure that those
activities result in no more than
minimal adverse effects to the aquatic
environment. We do not agree that it
would be appropriate to adopt a ‘‘no net
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
loss’’ goal for stream banks. Stream bank
stabilization activities are necessary to
protect property and ensure public
safety. Stream restoration is not always
feasible in developed areas and other
types of bank stabilization may be more
appropriate in those areas.
One commenter said the NWP should
encourage consideration of more
environmentally acceptable methods of
bank stabilization first, and if those
methods are not appropriate, then hard
erosion control measures such as riprap
or bulkheads could be authorized. A
commenter recommended that this
NWP authorize techniques that employ
more natural methods of bank
protection channelward of the ordinary
high water mark, which may or may not
include the use of hard armoring
materials.
We do not agree that it is necessary
to establish preferences for bank
stabilization methods in the terms and
conditions of this NWP. In certain
situations, riprap or bulkheads may be
the only practicable methods of bank
stabilization. This NWP can be used to
authorize bank stabilization activities
channelward of the ordinary high water
mark, as long as the terms and
conditions of the NWP are met.
One commenter stated that the 500
linear foot limit of this NWP should be
reduced to 100 linear feet, to prevent
significant degradation of salmon
habitat. Two commenters said that NWP
13 should not authorize bank
stabilization activities in excess of 300
linear feet. One commenter indicated
that NWP 13 should be modified to
allow district engineers to waive the 500
linear foot limit when impacts to
aquatic resource are minimal or when it
is environmentally advantageous to
allow additional bank stabilization to
prevent recurring damage. Such a
waiver would reduce repeated
disturbances associated with
continuously repairing damaged bank
stabilization measures that were
shortened to meet the limit. This
commenter also said that this waiver
would allow district engineers to
exercise more discretion in terms of
requiring watershed based mitigation
banks and in-lieu fee programs for
additional impacts and requiring
mitigation at a site of greater watershed
importance.
Based on our experience of using this
limit for over 25 years, we believe that
500 linear feet is the appropriate limit.
However, this limit can be waived as
indicated in the first sentence of the last
paragraph of NWP 13 which states that
bank stabilization activities in excess of
500 feet in length may be authorized if
the project proponent notifies the
2035
district engineer in accordance with
General Condition 13 and the district
engineer determines that the proposed
work results in minimal individual and
cumulative adverse environmental
effects. Division engineers can
regionally condition this NWP to
prohibit or restrict its use in streams
inhabited by salmon. For those activities
that require notification, district
engineers will review the proposed
work to ensure that the adverse
environmental effects are no more than
minimal.
One commenter said that projects
proposing bank stabilization structures
of more than 300 feet should be elevated
to the Individual Permit level.
Past experience with the limits of this
NWP leads us to believe that the
currently proposed 500-foot limit
generally will not result in more than
minimal impacts.
Two commenters recommended the
Corps prohibit stacking of NWP 13 with
itself or any other NWP. Two
commenters stated the Corps should
prohibit the use of waste concrete for
bank stabilization material due to the
environmental problems, such as toxic
paints from sidewalks, rebar from
construction, and petroleum products
from automobiles. One commenter
indicated that the placement of wood in
bank stabilization projects has the
potential to interfere with treaty fishing
access and affected tribes should be
notified of activities authorized by this
NWP.
This NWP authorizes single and
complete bank stabilization activities.
We do not agree that it would be
appropriate to prohibit the use of NWP
13 with other NWPs, but we do prohibit
using a NWP more than once for a single
and complete project. General Condition
15 addresses the use of more than one
NWP for a single and complete project.
General Condition 18 addresses the use
of suitable material for discharges of
dredged or fill material into waters of
the United States. This general
condition prohibits the use of materials
that contain toxic pollutants in toxic
amounts. General Condition 8, Tribal
Rights, indicates that no activity or its
operation may impair reserved tribal
rights, including, but not limited to,
reserved water rights and treaty fishing
and hunting rights. This NWP can
further be regionally conditioned by
division engineers to ensure that bank
stabilization activities do not interfere
with specific treaty fishing access. This
nationwide permit is reissued without
change.
14. Linear Transportation Projects. In
the August 9, 2001, Federal Register
notice, we proposed to modify NWP 14
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2036 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
to authorize private transportation
projects in non-tidal waters to have a
maximum acreage of 1 ⁄2-acre instead of
the current 1 ⁄3-acre, and to eliminate the
200 linear-feet prohibition.
Numerous commenters agreed with
the proposal to treat both public and
private transportation projects the same
for tidal and non-tidal waters and
increase the impact limit to 1 ⁄2-acre in
non-tidal areas. Most agreed that the
Corps was unjust in differentiating
between private and public projects in
the past. Two commenters
recommended that the 1 ⁄2 acre threshold
be increased to assist the applicant with
projects that may still have minimal
impacts however will go over the
allowed threshold and stated this will
decrease the amount of individual
permits. Several commenters disagreed
with the proposal to treat both public
and private transportation projects the
same and indicated that private
individuals are less likely to have access
to critical resource and ecological
information to assist them in designing
their project with minimal impacts to
the aquatic environment. Some
commenters recommended that the 1 ⁄2acre
threshold be changed to 1 ⁄2-acre
overall. One commenter stated that the
change in the acreage threshold
conflicts with the general requirement
of the Nationwide Permits to have
minimal adverse impacts on the aquatic
environment. One commenter stated
that this NWP supports a non-water
dependant activity and therefore
activities proposed under this NWP
should be reviewed as an Individual
Permit. One commenter recommended
that the Corps withdraw all proposed
changes.
We have determined that the impacts
to the aquatic environment for
transportation projects will be
essentially the same whether the project
is public or private and on the average
we would expect the private
transportation projects to be smaller. We
believe that private projects go through
local, state, and other permitting
processes and have the same access to
resource and ecological information as
public projects. Furthermore, the terms
and conditions will ensure that NWP 14
will have no more than a minimal
adverse effect on the aquatic
environment. We believe that a
distinction needs to be made for
transportation crossings based on
whether they cross tidal or non-tidal
waters. We are not changing the
maximum acreage of NWP 14, but are
applying the maximum acreage to nontidal
waters rather than public projects.
We have determined that the maximum
loss of waters of the US for this NWP
should be 1 ⁄2 acre in non-tidal waters of
the US and 1 ⁄3 acre in tidal waters of the
US. Both limits along with the terms
and conditions of the NWP will ensure
that this NWP does not authorize
activities with more than minimal
adverse effects on the aquatic
environment.
Many commenters objected to the
removal of the 200 linear-foot restriction
because this type of impact could not be
considered minimal. The commenters
stated that streams have no adjacent
wetlands therefore allowing several
hundred feet of stream to be impacted
before the 1 ⁄2 acre threshold is reached,
that requiring a linear measure ensures
that impacts will be minimal, and no
justification was provided in the
Federal Register for proposing this
change. Numerous commenters agree
with the removal of the 200 linear-foot
restriction and have stated that the PCN
threshold, as well as the acreage limit,
will continue to provide protection to
the environment. One commenter
recommended that a 100 linear-foot
restriction be adopted.
We proposed to remove the 200
linear-feet prohibition from NWP 14 to
eliminate varied interpretations and to
simplify the basis for use of the permit.
We have determined that the removal of
this prohibition will have little practical
effect as the limiting factor contained in
the terms and conditions of NWP 14 is
most often the acreage limitation. We
believe that very few projects exceeding
the 200 linear-feet would remain below
the 1 ⁄10-acre ‘‘notification’’ threshold.
For example, a 200′ by 22′ wide
transportation crossing would impact
4,400 sq. ft. (i.e., 1 ⁄10-acre). We have
determined that the ‘‘notification’’
threshold (i.e. 1 ⁄10-acre for areas without
special aquatic sites, and all proposed
projects that would involve fill in
special aquatic sites) allows the Corps to
do a case-by-case review. Therefore, we
have concluded that these measures,
along with the other terms and
conditions of the NWPs and other
mechanisms such as regional conditions
and the discretionary authority, will
ensure that any NWP 14 activity that
complies with the acreage threshold
will have no more than a minimal
adverse effect on the aquatic
environment.
Two commenters recommend that all
proposed changes be implemented and
individual Corps Districts not be
allowed the use of discretionary
authority to restrict these changes nor
require an individual permit for
multiple stream crossings. One
commenter recommended that
mitigation always be required for
impacts under NWP 14.
We believe that the use of
discretionary authority by District
Engineers is necessary to ensure that
impacts to the aquatic environmental
that are more than minimal receive the
proper review. The requirement for a
compensatory mitigation proposal
applies to those activities that require
notification. Further, for projects not
requiring a PCN, District Engineers may
determine, on a case-by-case basis, that
compensatory mitigation is necessary to
offset losses of waters of the United
States because the work, without
compensatory mitigation, will result in
more than minimal adverse effects on
the aquatic environment. This could
occur if the project proponent submits
a voluntary verification request to the
Corps or if a concern is raised to the
Corps by a third party.
Numerous commenters agreed with
the preamble clarification that features
integral to linear transportation projects
are covered under NWP 14 and stated
this clarification will reduce confusion
without adversely affecting
environmental values. One commenter
objected to the clarification of features
integral to linear transportation projects
and stated that the addition of these
activities expands the possibility of
impacts, which often could be avoided.
One commenter recommended that the
term ‘‘stormwater detention basin’’ (as
used in the preamble to the proposed
NWPs) be changed to read ‘‘stormwater
management basin’’ and ‘‘water quality
enhancement measure’’ be changed to
read ‘‘water quality/wetland
enhancement measures’’. The
commenter stated that this change
would allow additional stormwater best
management practices to be authorized
by this permit.
We do not believe that the features
described in preamble of the August 9,
2001, issue of the Federal Register,
expanded the activities that can be
authorized by NWP 14. We have
maintained that NWP 14 may not be
used to authorize non-linear features
commonly associated with
transportation projects, such as vehicle
maintenance or storage buildings,
parking lots, train stations, or hangars.
We believe the examples listed in the
preamble are dependent integral
components of typical linear projects
and were added for clarification. We
maintain the authority to assert
discretionary authority when evaluating
the magnitude of adverse effects on the
aquatic environment (33 CFR 330.1(d),
330.4(e) & 330.5). These examples and
other integral features not listed could
be authorized. We agree that stormwater
management features and wetlands
features integrally related to the linear
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transportation project could be
authorized by this NWP. In addition,
other NWPs may be combined with this
NWP to authorize related activities
subject to general condition 15.
Several commenters addressed the
Corps definition of single and complete
project under NWP 14. One commenter
recommends that any proposed roadway
fill in special aquatic sites, including
wetlands require a PCN with agency
coordination. One commenter
recommended that the definition of
‘‘single and complete project’’ be
amended to include all portions of the
linear project that do not have
independent utility. One commenter
recommended that multiple stream
crossings should be deemed to be part
of a single road project. One commenter
recommended that additions to
previously permitted projects be
reviewed under the individual permit to
avoid piece-mealing.
Notification is required for all
discharges of dredged or fill material
into special aquatic sites and discharges
resulting in the loss of greater than 1 ⁄10
acre of waters of the United States. We
believe most activities authorized by
this NWP will require notification to the
district engineer and the determination
as to whether to require an individual
permit should be made on a case-bycase
basis. For example, if NWP 14 is
used more than once by different project
proponents to cross a single waterbody,
the district engineer will assess the
adverse effects on the aquatic
environment and determine if those
adverse effects are minimal. As with any
NWP, the district engineer can exercise
discretionary authority and require an
individual permit if the adverse effects
on the aquatic environment will be
more than minimal. The definition of
the term ‘‘single and complete project’’
for linear projects can be found in Corps
regulation at 33 CFR 330.2(i).
Many commenters recommend that
NWP 14 not be authorized within tidal
wetlands or waters and wetlands
adjacent to tidal waters as these areas
have great ecological importance and
already suffer from development
pressures. One commenter
recommended an individual permit be
required for activities within tidal
wetlands and wetlands adjacent to tidal
waters. One commenter recommended
the language in section a. (2) be changed
to read ‘‘linear transportation projects in
tidal waters and non-tidal wetlands
adjacent to tidal waters’’.
We agree that tidal waters or water
and wetlands adjacent to tidal water can
have great ecological importance and
have suffered from development
pressures. However, the current
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
language is sufficient to protect such
areas. We have developed terms and
conditions to keep adverse impacts at a
minimal level. Further, in many cases a
PCN is required and Districts will add
case specific conditions and mitigation
when needed to ensure that adverse
impacts will be minimal. Some projects
will need to be processed as an
individual permit. The district offices
will make that determination when
necessary to ensure that the adverse
effects to the aquatic environment will
be no more than minimal.
One commenter recommends that the
Corps prohibit the construction of new
transportation or spur projects under
this NWP. Due to the development
potential associated with road projects,
a thorough alternative analysis, along
with agency and public review should
be required.
The main purpose of this NWP is to
authorize new linear transportation
crossing of waters of the US. It may also
authorize new crossings involved in
relocating of existing linear
transportation projects. This NWP does
not authorize a transportation project as
a whole, which does not require
authorization by the Corps of Engineers.
However, we will address alternatives to
crossings to avoid and minimize adverse
effects in accordance with General
Condition 19, to ensure that adverse
effects on the aquatic environment are
no more than minimal.
One commenter recommends,
condition ‘‘f’’ be clarified to ensure less
than minimal effects on the
environment. The clarification should
state ‘‘all stream crossings be engineered
to transport flows and sediment during
both bank full and flood flows’’.
Furthermore the clarification should
state the permit does not authorize
crossings that block flows in or restrict
the stream’s access to the floodplain.
The commenter further recommended
that the condition require equalization
culverts be installed as part of crossings
that affect flood plains.
We agree that activities authorized by
this NWP can have adverse effects
related to flow and movement of water
through and under the crossings. For
that reason, the term f. of the NWP was
added to emphasize the need for
projects authorized by this permit to
adequately address water movement
impacts. This provision refers to
General Conditions 9 & 21. We believe
that along with these two conditions,
the effects of crossings on the movement
of water will be no more than minimal.
15. U.S. Coast Guard Approved
Bridges. There were no changes
proposed to this nationwide permit.
However, one commenter recommended
2037
that NWP 15 be withdrawn as it is too
broad for projects to be considered
‘‘similar in nature’’, or to be able to
determine that the various projects,
when considered individually or
cumulatively, will result in minimal
adverse environmental effects. The
commenter also stated that the permit
category has the potential for
catastrophic secondary indirect, and
cumulative adverse impacts, including
adverse impacts to federally listed
threatened or endangered species.
We believe that the listing of the type
of activities and that they are related to
bridge construction only will ensure
that those activities authorized by this
NWP will be similar in nature. Further,
we believe that normally these activities
will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively.
However, Division and District
Engineers will condition such activities
where necessary to ensure that these
activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. The nationwide permit is
reissued without change.
16. Return Water From Upland
Contained Disposal Areas. There were
no changes proposed to this nationwide
permit. A few commenters suggested
that, in order to assure that the lands
and waters draining the disposal areas
are not contaminated from pollutants
entrained in the dredged material, the
NWP should be tightened to require
individual permit review unless the
discharge/leachate from the dredged
material is controlled through a NPDES
permit. Another commenter stated that
NWP 16 should be withdrawn as it is
too broad for projects to be considered
‘‘similar in nature’’, or to be able to
determine that the various projects,
when considered individually or
cumulatively, will result in minimal
adverse environmental effects. The
commenter also stated that the permit
category has the potential for
catastrophic secondary indirect, and
cumulative adverse impacts, including
adverse impacts to federally listed
threatened or endangered species.
Consistent with 33 CFR
323.2(d)(1)(ii), this NWP authorizes the
return water as the discharge of dredged
material. As such, an NPDES permit is
not required. However, a 401
certification is required and we believe
will adequately control the quality of
the return flow. We believe that the
listing of the type of activities will
ensure that those activities authorized
by this NWP will be similar in nature.
Further, we believe that normally these
activities will have no more than
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2038 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
minimal adverse effects on the aquatic
environment, individually and
cumulatively. Further, Division and
District Engineers will condition such
activities where necessary to ensure that
these activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. General Condition 11
ensures that the activity will comply
with the Endangered Species Act. The
nationwide permit is reissued without
change.
17. Hydropower Projects. There were
no changes proposed to this nationwide
permit. There were no comments on this
nationwide permit. The nationwide
permit is reissued without change.
18. Minor Discharges. There were no
changes proposed to this nationwide
permit. One commenter said that NWP
18 should be withdrawn as it is too
broad for projects to be considered
‘‘similar in nature’’, or to be able to
determine that the various projects,
when considered individually or
cumulatively, will result in minimal
adverse environmental effects. The
permit category has the potential for
catastrophic secondary indirect, and
cumulative adverse impacts, including
adverse impacts to federally listed
threatened or endangered species. Also,
the thresholds of 25 cubic yards and
1 ⁄10th acre are arbitrary and capricious.
Another commenter stated that NWP 18
should be modified to allow the Corps
District Engineer to waive the 25 cubic
yard limitation when the aquatic
resource impacts would remain minimal
or when it is environmentally
advantageous and efficient to allow the
discharge of additional material as a
single project and direct mitigation to a
watershed based mitigation bank.
We believe that the minor nature of
these types of small discharge activities
authorized by this NWP will be similar
in nature. Further, we believe that
normally these activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. However, Division
and District Engineers will condition
such activities where necessary to
ensure that these activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. While we believe that
the small quantity limits are necessary
to ensure that on a national basis that
the adverse effect on the aquatic
environment will be no more than
minimal individually and cumulatively,
we also recognize that in some areas and
in some situations that larger quantities
would also have no more than minimal
individually and cumulatively. In these
situations the Corps Divisions and
districts may issue, after notice and
comment, regional general permits for
larger quantity limits. General Condition
11 ensures that the activity will comply
with the Endangered Species Act. The
nationwide permit is reissued without
change.
19. Minor Dredging. There were no
changes proposed to this nationwide
permit. One commenter said that NWP
19 should be withdrawn as it is too
broad for projects to be considered
‘‘similar in nature’’, or to be able to
determine that the various projects,
when considered individually or
cumulatively, will result in minimal
adverse environmental effects. The
permit category has the potential for
catastrophic secondary indirect, and
cumulative adverse impacts, including
adverse impacts to federally listed
threatened or endangered species. Also,
the thresholds of 25 cubic yards is
arbitrary and capricious.
We believe that the minor nature of
these types of small dredging activities
authorized by this NWP will be similar
in nature. Further, we believe that
normally these activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. However, Division
and District Engineers will condition
such activities where necessary to
ensure that these activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. Also these activities
do not require a permit under section
404 of the Clean Water Act if they result
in only incidental fallback (see 33 CFR
323.2 (d)). While we believe that the
small quantity limits are necessary to
ensure on a national basis that the
adverse effects on the aquatic
environment will be no more than
minimal individually and cumulatively,
we also recognize that in some areas and
in some situations that larger quantities
would also have no more than minimal
adverse effects, individually and
cumulatively. In these situations the
Corps Divisions and districts may issue,
after notice and comment, regional
general permits for larger quantity
limits. General Condition 11 ensures
that the activity will comply with the
Endangered Species Act. The
nationwide permit is reissued without
change.
20. Oil Spill Cleanup. There were no
changes proposed to this nationwide
permit. One commenter suggested that
NWP 20 should be withdrawn as it is
too broad for projects to be considered
‘‘similar in nature’’, or to be able to
determine that the various projects,
when considered individually or
cumulatively, will result in minimal
adverse environmental effects. The
permit category is a prime example of
the secondary, indirect, and cumulative
adverse impacts, including adverse
impacts to federally listed threatened or
endangered species in locations beyond
the location of the spill which could
result from activities authorized under
NWP 8.
We believe that the minor nature of
these types of small discharge activities
authorized by this NWP will ensure that
they are similar in nature. Further, we
believe that normally these activities
will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively.
However, Division and District
Engineers will condition such activities
where necessary to ensure that these
activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. This NWP only addresses
the need to clean up oil spills regardless
of the source of the spill and only when
the clean up involves a discharge of
dredged or fill material. The effects of
the oil spill itself will be considered by
the lead Federal or state agency
involved in the clean up exercise.
General Condition 11 ensures that the
activity will comply with the
Endangered Species Act. The
nationwide permit is reissued without
change.
21. Surface Coal Mining Activities.
The Corps proposed two changes to this
NWP to ensure the proper focus of the
NWP and to make certain adequate
mitigation will be required resulting in
no more than minimal adverse effects
on the aquatic environment. Both of
these changes will increase protection of
the aquatic environment. First, the
Corps proposed to require a specific
determination by the District Engineer
on a case-by-case basis that the
proposed activity complies with the
terms and conditions of this NWP and
that adverse effects to the aquatic
environment are minimal both
individually and cumulatively after
consideration of any required mitigation
before any project can be authorized.
Second, the Corps proposed to add
clarification to NWP 21 that the Corps
will require mitigation when evaluating
surface coal mining activities in
accordance with General Condition 19.
In addition, the Corps Section 404
review will address the direct and
indirect effects to the aquatic
environment from the regulated
discharge of fill material.
Definition of Fill and Waste
Two commenters stated that the Corps
issuance of NWP 21 to authorize valley
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fills is illegal in that the Corps current
definition of fill specifically precludes
pollutants discharged into the water
primarily to dispose of waste, as that
activity is regulated by EPA under
section 402 of the Clean Water Act. (33
CFR section 323.2(e)). One of these
commenters quoted from the Bragg v.
Robertson decision where the 4th
District Court, in ruling upon certain
claims against the State under SMCRA,
stated in dicta that the overburden or
excess spoil was a pollutant and waste
material and not fill material subject to
Corps authority under section 404 of the
CWA when it is discharged into waters
of the U.S. for the primary purpose of
waste disposal. The other commenter
added that even if the Corps had
jurisdiction to issue permits for valley
fills composed of mining spoils under
the April 2000 proposed rule, to amend
the definition of ‘‘fill material’’, it would
not have jurisdiction to authorize the
discharge of coal processing waste into
refuse impoundments under Section
404. In addition, the commenter
asserted that even if the Corps finalizes
the proposed rule regarding the
definition of fill, it must, under NEPA,
perform an EIS before implementing the
rule. Because this has not been done
and the current rule prohibits fills
composed of waste material, the
commenter claimed NWP 21 is
inapplicable to authorize the placement
of mining spoil or coal refuse in waters
of the U.S.
Another commenter added that the
final notice reissuing NWPs must
clearly and unambiguously prohibit
placement of coal processing wastes and
underground development wastes in
‘‘coal waste dams’’ or ‘‘tailings piles’’
into waters of the U.S., and must further
prohibit the placement of coal mine
‘‘spoil’’ material in such waters as
‘‘waste disposal’’ unless the final design
of the valley fill structure is
demonstrated to be necessary to support
the approved post-mining land use and
is thus placed for a beneficial purpose.
Definition of Fill Rule: On April 20,
2000, the Corps and EPA issued a joint
proposal to revise the definition of fill
found at 33 CFR 323.2(e) and 40 CFR
232.2 (65 FR 21292, April 20, 2001). The
proposed revision would clarify that fill
material means material (including, but
not limited to rock, sand and earth) that
has the effect of: (i) Replacing any
portion of water of the US with dry
land; or (ii) Changing the bottom
elevation of any portion of a water of the
US.
Among other things the proposed rule
would clarify that placement of excess
coal mining overburden, resulting from
mountaintop mining/reclamation
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
activities, in waters of the U.S. (valley
fills) is considered a discharge of fill
material. The agencies are reviewing
approximately seventeen thousand
comments received in response to the
proposed rule and are in the process of
drafting the final rule. NWP 21 is
available to authorize discharges of fill
material meeting the terms of the
permit. Issues related to the
applicability of Clean Water Act section
404 to ‘‘coal waste dams,’’ ‘‘tailings
piles’’’ coal mine ‘‘spoil’’ and coal slurry
impoundments turn on the
jurisdictional question of what
constitutes fill material, an issue that
will be clarified in that rulemaking.
Because the proposed nationwide
permits do not seek to resolve those
questions, these comments are outside
the scope of this proceeding. With
regard to valley fills, in a memorandum
dated September 26, 2001, the Corps
directed all involved field elements to
inform the public and initiate regulating
valley fills in all states, pursuant to
section 404 of the CWA. The
memorandum attaches a legal analysis
that concludes that Corps regulation of
valley fills may be pursued under the
current regulations. The Corps decided
to regulate valley fills because of the
need for consistent administration of the
Regulatory Program, assuring equity for
the public. In addition, the Corps will
require appropriate compensatory
mitigation, as necessary, for the loss of
aquatic resources.
Bragg Settlement Agreement: On
December 23, 1998, a settlement
agreement was signed to end litigation
against the federal government that
challenged whether applicable federal
programs were being appropriately
applied to regulate valley fills in West
Virginia (Bragg v. Robertson, Civil
Action No. 2:98–0636 (S.D. W.Va)). The
Court approved the agreement on June
17, 1999 (54F.Supp. 2d 653). The
settlement agreement was facilitated, in
part, by the Army establishing that the
Corps would regulate valley fills in
West Virginia pursuant to section 404 of
the CWA. While on appeal, the Fourth
Circuit Court of Appeals vacated a
subsequent decision issued by the
District Court addressing Surface
Mining Control and Reclamation Act
(SMCRA) claims in the case (see 248
F.3d 275); that Fourth Circuit decision
left intact the 1998 settlement
agreement. See 248 F.3d at 288, n.1
(noting District Court’s approval of the
settlement agreement). A portion of the
settlement agreement stated that excess
rock resulting from a surface coal
mining and reclamation operation
which would bury a stream segment
2039
draining a watershed of 250 acres or
more would generally be considered to
have more than minimal adverse effects
on waters of the U.S. Consistent with
the terms of this agreement, to which
the Corps is a party, the Corps will
generally use its discretionary authority
to require standard permits for coal
mining activities in West Virginia where
the material would bury a stream
segment draining a watershed of 250
acres or more. The Corps notes that this
agreement was negotiated among
various Federal agencies and the state of
West Virginia and relates to certain
types of coal mining operations in that
state. The Corps believes there are many
different types of coal mining operations
in other parts of the country and that the
conditions of the settlement agreement
may not be applicable to many of these
other operations. For this reason, the
terms of the agreement have not been
incorporated into the permit, which by
definition is nationwide in
applicability.
Further, we are gathering data and, in
conjunction with other federal agencies,
are preparing a programmatic
mountaintop mining/valley fill (MTM/
VF) EIS to better understand the
environmental effects of mountaintop
mining and valley fills, as well as
programmatic changes that may be
necessary to address those impacts. The
Corps will reevaluate NWP21 when the
mountain top mining EIS is completed.
The Corps intends to use the results of
this EIS and all other information that
may be available at that time, including
information resulting from individual
verification of all NWP 21 projects as
required under the revised terms and
conditions, to make sure that NWP 21
results in no more than minimal
impacts (site-specifically and
cumulatively) on the aquatic
environment. Therefore, at this time we
are not adding additional conditions
from the Bragg agreement to the NWP
itself. Thus, we do not believe that we
should add specific conditions from the
settlement agreement to this NWP,
which has a term of five years. However,
the Corps wishes to reiterate that it will
abide by all terms of the settlement
agreement in West Virginia as long as it
remains in effect.
It is important to the Corps that
surface coal mining activities authorized
by this NWP do not cause more than
minimal adverse effects to the aquatic
environment after considering
mitigation. As such, the District
Engineer will ensure that the discharge
of fill material in waters of the US
associated with coal mining activities
will have no more than minimal adverse
effects on the aquatic environment.
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2040 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
EIS/EA for NWP
A few commenters stated that the
Corps 1996 EA did not adequately
account for the increasing size and scale
of valley fills and their impacts. One of
these commenters suggested that this
NWP should not be reauthorized until
the new EA or EIS is completed which
may find that impacts due to this
nationwide are more than minimal.
Three commenters stated that
reissuance of NWP 21 was inconsistent
with the Corps obligation under NEPA,
since the Draft Nationwide Permit
Program Programmatic EIS (PEIS) dated
July, 2001, does not adequately address
the effects of eliminating NWP 21 and
other NWPs which have been
controversial due to their substantial
environmental effects.
The PEIS addressed the effects of
different permit processing scenarios
(standard, regional general and
nationwide general permits) on the
Corps permit program in terms of
workload, cost and protection for the
environment. It did not include
alternatives changing only some
nationwide permits to standard permits
or regional general permits or any other
combination of specific NWPs permits.
This combining of different scenarios
would have resulted in a very large
number of alternatives to analyze.
One commenter stated that the PEIS
fails to fully incorporate and analyze the
substantial body of scientific knowledge
and information that has been amassed
as part of the aforementioned MTM/VF
EIS relative to the effects of mountain
removal mining and valley fill
construction on Appalachian streams
and rivers. This commenter requests
that all available technical and scientific
studies, and the draft MTM/VF EIS be
incorporated into the DPEIS and that a
supplemental PEIS be prepared
concerning the proposal to reissue NWP
21, which includes the alternative of
reissuance of other nationwide permits
with the exception of NWP 21 and other
controversial NWPs.
The MTM/VF EIS will not be
completed for some time. However, the
Corps fully intends to use all relevant
information, including the results of this
EIS, to make sure that NWP 21 results
in no more than minimal impacts (sitespecifically
and cumulatively) on the
aquatic environment.
One commenter noted that the Corps
is currently involved in an EIS limited
to two states, Kentucky and West
Virginia, for a subset of the activities
authorized under NWP 21 and which
will not determine the effects of all
activities associated with this permit.
This commenter states that the Corps
must perform an EIS on all impacts
associated with NWP 21 including, but
not limited to, mountaintop removal
valley fills, contour mining valley fills,
and coal refuse discharges. They also
state that particularly, given the
concentrated use of NWP 21 in only a
few districts, it is clear that the Corps
permitting decisions have had impacts
exceeding both the ‘‘significant’’
standard under NEPA and the ‘‘minimal
adverse effects’’ standard under Section
404(e).
As previously stated, the Corps is
committed to ensuring that NWP 21
does not result in more than minimal
adverse effects to the aquatic
environment. We believe that the
changes proposed and adopted will
ensure minimal adverse effects on the
aquatic environment. We will review
the additional information provided
within the MTM/VF EIS, upon its
completion, to be sure that this
continues to be the case.
Scope of Analysis
One commenter opposed reissuance
of NWP 21 based on this activity’s nonwater
dependency and associated
secondary/cumulative impacts such as
acid rain from burning of coal and its
affect on the human environment. This
commenter is concerned over the
adverse impacts of acid deposition on
the human environment. Another
commenter claims that coalfield
communities near these operations are
dwindling as large out of state coal
corporations employ fewer and fewer
workers and severe flooding in the area
caused by the mining activities makes it
extremely difficult to live near these
mining operations.
These impacts are outside of the
Corps scope of analysis pursuant to the
National Environmental Policy Act. The
Corps evaluation of valley fills is
focused on impacts to aquatic resources.
Overall mining is permitted under
separate Federal laws, SMCRA.
Another commenter, also concerned
with secondary and indirect impacts of
coal mining activities, objected to the
statement in the preamble that the
‘‘Corps review is limited to the direct
and indirect, and cumulative effects of
fills in waters of the U.S’’. This
commenter states that the scope of
analysis should extend beyond the
effects of fills in waters of the U.S.
However, another commenter not only
agreed that the scope of analysis should
be limited to the direct and indirect and
cumulative effects of only the fills in
waters of the U.S. but also that wording
should be included in the permit
language to inform all interested parties
that the Corps would not be considering
the impacts of the actual coal mining
operation itself, especially one
occurring on a mountain top.
Impacts associated with surface coal
mining and reclamation operations are
appropriately addressed by the U.S.
Department of the Interior Office of
Surface Mining or the applicable state
agency, if program delegation has
occurred, pursuant to the Surface
Mining Control and Reclamation Act.
Under these circumstances, the Corps
NEPA implementing regulations clearly
restrict the Corps scope of analysis to
impacts to aquatic resources. We concur
with the commenter that the scope of
analysis should be limited to only
impacts to the aquatic environment.
Duplication/ Executive Order 13212
One commenter was opposed to any
change to NWP 21 because of possible
duplication of the intensive review
performed by the Office of Surface
Mining in coordination with the Corps
and other state and Federal agencies
related to approval of reclamation plans
for surface coal mining activities. This
commenter is concerned that such
duplication now proposed will
complicate the approval process for
mine operations and make approval
more cumbersome and bureaucratic
resulting in unnecessary duplication
and delays for approval of energy
related projects which would be in
direct conflict with Executive Order
13212 Actions to Expedite Energy
Related Projects. One commenter
discussed at great lengths the
implication of EO 13212 which was
signed on May 18, 2001. The commenter
asserted coal reserves serve an
indispensable role in the nation’s energy
equation and are used primarily for
generating the nation’s electricity, and
that a reliable general permit program is
vital to a coal producer’s ability to meet
the nation’s growing coal needs. This
commenter is concerned that the
proposed changes to this NWP will
cause delays and unnecessary
duplication. One commenter suggested
that all proposed projects falling under
this NWP be coordinated with the
SMCRA and should consider any
required SMCRA mitigation when
making its determinations regarding
appropriate mitigation under Section
404. One commenter suggested that the
Corps utilize the SMCRA environmental
protection, mitigation and findings
standards as a general basis for
determining that surface coal mining
operations regulated by SMCRA will
have minimal impact and meet NWP 21
applicability standards. By using
SMCRA standards when making
determinations of applicability to NWP
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21, the commenter indicated the Corps
review can be expedited consistent with
EO 13212. Further, the commenter
indicated that under SMCRA, the
DMME is prohibited from issuing a coal
surface mining permit unless the agency
first finds, in writing, that the proposed
mining operation will minimize impacts
to the hydrologic balance within the
permit area and will not result in
material damage to the hydrologic
balance outside the permit area.
As stated above, the Corps has
determined that the SMCRA process
does not currently adequately address
impacts to the aquatic environment as
required under Section 404, therefore
this NWP does not duplicate the mining
permit process but does rely on it for
help in the analysis. We encourage
Corps Districts to work with state and
Federal mining agencies to coordinate
early in the process so that the SMCRA
permit includes adequate mitigation to
offset impacts to the aquatic
environment.
Two commenters agreed with the
proposed changes in this NWP because
of the differing goals of the SMCRA/
DMME and the CWA, specifically
concerning compensatory mitigation.
The commenters indicated that while
most NPDES permits include conditions
to protect against stream impacts, they
do not often address wetland impacts.
In addition, according to one
commenter, there are no clear standards
for stream replacement, leading to poor
reconstruction techniques with little or
no restoration of habitat function.
The Corps is working on stream
functional assessment protocols to help
in identifying the functions lost through
impacts and the functions gained or
enhanced through mitigation.
Two commenters suggested that NWP
21 should be significantly restricted or
eliminated, since it wrongfully assumes
the state or federal regulatory agency
under SMCRA is engaging in a process
comparable to section 404 of the CWA
and the 404(b)(1) Guidelines of assuring
avoidance and minimization of impacts
on special aquatic sites and other waters
of the US, when in fact no other agency
engages in such review.
The Corps has not assumed that other
state or Federal agencies are engaging in
a comparable Section 404 type process.
In accordance with the Section 404(b)(1)
Guidelines, analysis of offsite
alternatives is not required in
conjunction with general permits.
A few commenters were opposed to
the requirement for a written
determination of compliance without a
time clock, i.e. 45 days, for the Corps to
respond or the applicant can begin
work. One of these commenters is
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
concerned that under the proposed
NWP, the applicant could wait weeks or
months until he receives express
authorization from the district to begin
which would result in delays and
additional paper exercise for a project
deemed to be of minimal impact.
Another scenario a commenter provided
would be to wait months just to be told
the project does not qualify for NWP 21
and that a standard permit would be
required. This commenter suggests that
the Corps could abuse the lack of time
constraints when it cannot meet its own
deadlines. A few commenters suggested
that the Corps rely solely on the
notification requirement for determining
whether or not any specific activity
complies with the terms and conditions
of the NWP within the 45 day time
limit.
Under the current regulatory program,
all coal mine operators must notify the
Corps which may involve agency
coordination subject to a 45 day time
clock to submit comments to the Corps.
Under the proposed NWP, the applicant
must wait before initiating construction
until he receives express authorization
from the District Engineer. Corps
districts will make decisions in a timely
matter. We believe that a careful case
specific minimal impacts determination
is necessary for this NWP, but it may
sometimes take more than 45 days.
Because of the potential for more than
minimal adverse effects with these
projects this approach is necessary.
Impacts from NWP 21
A majority of the commenters
opposed the reissuance of NWP 21
because of potential impacts.
Specifically, the major concern stated by
most commenters was that the
mountaintop removal mining and
disposing of the overburden in valleys
(valley fills) would result in the burying
of streams thereby disturbing the natural
processes and water quality in the entire
watershed and result in the permanent
loss of habitat. One commenter stated
concern that this NWP activity will
displace Federally protected threatened
and endangered species. Another
commenter raised concerns about
impacts to water supplies used for
drinking and recreation from the valley
fills.
This NWP requires compliance with
all of the general conditions for the
nationwide permits. One commenter
pointed out that in one state alone 15–
25% of the mountains have been
leveled, that the overburden from these
mines placed in ‘‘valley fills’’ have
destroyed more than 1,000 miles of
streams, and that one mine can destroy
10 square miles of mountain and fill as
2041
many as 12 stream valleys. This
commenter concludes that these kinds
of impacts cannot be considered
‘‘minimal in effect’’ to qualify for a
NWP. One commenter stated that the
‘‘field assessment’’ of the nationwide
permit program provided an inadequate
analytical basis for documenting the
extent and severity of aquatic and
terrestrial impacts of the
implementation of NWP 21.
One commenter contends that the
Corps has admitted to its inability to
assess direct, indirect, and cumulative
impacts associated with specific coal
mining projects. Therefore, the Corps
cannot be in a position to state whether
any application for an authorization
under NWP 21 would or would not have
more than minimal adverse impacts,
either individually or cumulatively.
Another commenter stated that a draft
EPA finding indicates that the ‘‘impacts
of mountaintop mining and valley fill
activities in eastern Kentucky were
evident based on stream biological and
habitat indicators. Mining related sites
generally had higher conductivity,
greater sediment deposition, smaller
particle sizes, and a decrease in
pollution sensitive macoinvertebrates
* * * in turn, these streams and rivers
may support fewer fish and other taxa
which are recreationally or
commercially important.’’
These studies are draft documents
and have not been finalized or the
conclusions agreed upon by the
cooperating agencies.
One commenter stated that the Corps
has ignored OSM studies and are not
considering effect of valley fills on
flooding. However, another comment
challenged the Corps statement under
notification that the Corps is
‘‘discouraging extensive channelizing or
relocation of stream beds because of
potential adverse effects on the stream
and the potential to intensify
downstream flooding’’. This commenter
contended that the Corps does not have
an adequate basis for this statement
concerning downstream flooding and
requests that it be taken out.
The basis for this conclusion is that
whether increased downstream flooding
will occur is a site specific circumstance
based on downstream channel capacity
and geometry coupled with the
influence of man induced alternations
to channels and flood plains. These
issues will be evaluated during the case
specific minimal effects determination.
This commenter added that available
studies document lower flood rates in
areas of surface mining activities than in
similar unmined watersheds and that
some mining activities result in
alteration to landscape that can provide
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2042 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
significant runoff retention. And, for
example, the commenter added, open
pits and drainage control structures can
provide runoff retention and longer
travel times for overland flow and
increased infiltration provided by
backfills can also retard or lessen peak
flows.
The preliminary draft MMEIS, which
includes an assessment of scientific
studies related to providing a better
understanding of flooding potential
related to mountaintop mining,
concluded that no corroborating
evidence exists to support the
allegations that surface mining
operations increased flooding potential
downstream.
Two commenters questioned the
Corps proposal of this NWP and the
determination that it meets the
requirement that the adverse
environmental impacts are individually
and cumulatively minimal while
admitting (in the proposed regulation)
that it is still gathering data to better
understand the effects of valley fills on
the aquatic environment.
The Corps is continually gathering
data on all its nationwide general
permits to ensure that the effects of the
program on the aquatic environment are
minimal, both individually and
cumulatively. The changes in
procedures proposed and adopted here
will ensure minimal effects through case
specific review and mitigation.
Thresholds for NWP 21
A few of these commenters suggested
reissuing this NWP but precluding its
use for mining operations involving
mountain-top removal.
We disagree, this permit is designed
for use by mountaintop mining
operations as well as other surface coal
mining activities.
Several commenters added that since
this nationwide has no size/acreage
limits, extensive linear feet of streams
could be impacted. Two commenters
recommended using the same stream
threshold limitations as stated in NWP
39, 40, 42, and 43 (300-foot limitation)
for consistency purposes and since
stream impacts from filling should be
evaluated the same regardless of the
activity involved.
The 300 linear foot limit is retained
for NWPs 39, 40, 42, and 43, however
justification, on a case-by-case basis, can
be made to allow additional linear
impacts for intermittent streams. The
Corps believes that coal mining is
different from activities authorized
under NWPs 39, 40, 42 and 43 in that
coal mining projects are reviewed for
environmental impacts under several
other authorities (SMCRA, CWA section
402). For this reason, the determination
of whether a project will result in more
than minimal adverse effects is best
made on a case-by case basis.
Two commenters cite from the Draft
PEIS that in 2000 alone, 13,907 acres of
impacts to streams and wetlands were
authorized under NWP 21 making up
72% of all NWP impacts for that year
and one of these commenters
recommends protective measures and/or
environmental thresholds due to the
potential losses. One of these
applications resulted in the direct filling
of over six miles of streams and indirect
impacts to an additional three miles
with no data to suggest that these
impacts were minimal. For this reason,
this commenter and others have
suggested including the provisions
adopted in the Bragg v. Robertson
settlement of a 250-acre watershed
threshold while waiting the findings of
the EIS process to determine the
appropriateness of that threshold limit.
They believe the 250 acre standard
would provide better protection than no
threshold at all, as is currently the case.
Two commenters suggested that if NWP
21 must be reissued, it should be
conditioned such that valley fill projects
affecting intermittent and/or perennial
streams will be ineligible for
authorization and would be evaluated as
standard permits. They state that this
would be consistent with the Corps July
2000 guidance to the field, which
provides that the 250 acre standard
should be used in evaluating all PCN for
NWP 21. However, two commenters
support the Corps decision not to
include the 250 acre threshold because
it is temporary in nature and limited
only to West Virginia. Further, they
asserted that limit was not based upon
any scientific analysis but rather a
product of an agreement arrived at in an
arbitrary way, having no correlation
with environmental protection. These
commenters also cited projects with a
500 acre watershed, which improved
the pre-mining conditions. One
commenter suggested that if NWP 21
must be reissued, it should be
conditioned such that valley fill projects
affecting intermittent and/or perennial
streams will be ineligible for
authorization and be evaluated as
standard permits.
The Corps believes that a scientific
basis for the 250 acre limit designated
in the Bragg v. Robertson settlement has
not been adequately established and the
limit may not be appropriate for all
situations. High quality streams exist
above this point on the landscape and
lower quality streams exist below this
point. We believe it is better for the
environment to look at specific sites and
watersheds and make quality
determinations than to try and fit all
watersheds into a rigid pre-determined
categorization that may or may not
reflect the site specific aquatic
conditions. The Corps is further
concerned that universal use of the 250
acre limit could encourage a
proliferation of smaller valley fills in
lieu of fewer larger fills, and that this
may not be the best outcome for the
aquatic environment. The Corps has
identified a data error in the PEIS. The
13,907 acres of impact actually were
less that 50 acres.
One commenter suggested that
environmental thresholds be established
if not with this authorization, definitely
with the next and that these thresholds
be determined through a public review
process.
Thresholds may be added by
individual Districts as regional
conditions for this permit through the
public review process. In addition, we
will review this NWP when the MTM/
VF EIS is complete along with all other
relevant information and will develop
criteria or propose any changes that may
be needed.
Mitigation
Many of those commenters objecting
to the reissuance of NWP 21 stated that
the mitigation, even with Corps review
and approval, could not sufficiently
compensate for these impacts and
therefore this NWP would be a violation
of the Clean Water Act requirements
that general permits result in only
minimal adverse impacts to the aquatic
environment. One of these commenters
stated that stream restoration experts
have concluded that it is not possible to
recreate streams on most mined areas,
therefore, the loss of these stream miles
and the functions they provide to the
aquatic ecosystems downstream is a
permanent loss and, for the purposes of
a Section 404 impact assessment, the
stream losses cannot be adequately
compensated. One commenter, although
supporting the requirement of
mitigation beyond what the State
requires under the project’s coal mining
permit, still opposes NWP 21 because it
illegally jumps from avoidance and past
minimization directly to mitigation.
This commenter also voiced concern
over a lack of alternative analysis for
placement of fill into waters of U.S. by
any state or Federal agency for these
proposed valley fills. Another
commenter recommended that any
mitigation plan be coordinated and
approved by all involved regulatory and
commenting resource agencies prior to
the NWP approval.
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We feel we are avoiding and
minimizing impacts to the extent
practicable and that adequate
mitigation, especially in the form of
enhancement or rehabilitation of
existing streams through activities such
as stabilizing old mined sites to reduce
stream sedimentation and reduction in
acidic water releases, can be used to
determine that a project has minimal
impacts, both individually and
cumulatively, on the aquatic
environment. These activities can result
in a substantial improvement in
downstream water quality and aquatic
habitat within a watershed.
A few commenters agreed with the
proposed changes to NWP 21 because of
the varying goals of the SMCRA and the
CWA program and the wetland
mitigation plan requirement. One
commenter stated that the review
proposed would be valuable in ensuring
the requirement of equity between coal
mining activities and other wetland
impacting activities, and indicated that
while most NPDES permits include
conditions to protect against stream
impacts, they do not usually address
wetland impacts. In addition, there are
no clear standards for stream
replacement, leading to poor
reconstruction techniques with little or
no restoration of habitat functions.
As stated above, the Corps is in the
process of designing stream function
protocols to aid in evaluating mitigation
projects.
This commenter recommends that the
following language be included into the
permit language: ‘‘Compensatory
mitigation will be required to offset
losses of waters of the U.S., consistent
with General Condition 19’’.
We do not agree this is necessary, as
General Condition 19 applies to all
nationwide permits and does not need
to be specifically repeated in this NWP,
however, we agree with the intent of
this statement.
Two commenters suggested that at the
very least, bonding of mitigation
measures should be required in all
cases. One of these commenters argued
that performance bonds under 30 U.S.C.
1269 should not be used by the Section
404 program because of the limitations
imposed on these bonds. For instance,
neither state regulatory authorities nor
OSM have authority to impose bond
liabilities on regulated mines beyond
those specified in the mining law which
are established by law as that amount
needed to assure completion of the
reclamation plan required under 30
U.S.C. 1268 and not section 404 of the
CWA. Also, if there was a violation of
the Corps mitigation conditions, the
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Corps would not have authority to
direct the expenditure of those funds.
Requiring a bond by the Corps in
certain cases is consistent with existing
policy and the Corps will continue to do
so as it deems appropriate.
General Condition 4
One commenter stated that the
purpose of valley fills is not to impound
water but rather to dispose of
overburden or waste material.
Furthermore, the commenter asserted
that a valley fill is an activity that
completely eliminates the possibility of
movement and survival of aquatic life.
The commenter asserted the Bragg
Settlement contains nothing that even
remotely purports to modify any Corps
regulation * * *. The Corps must still
comply with these and all other
statutory and regulatory requirements’’.
The commenter indicated that
completely filling streams by valley
filling affects the necessary life
movements of all aquatic life that must
move within or between those streams.
Furthermore, the commenter asserted,
valley filling violates the General
Condition because not only does it
preclude movement of species, but
destroys the species themselves.
Generally, proposed projects are
located at the upper limits of the
watersheds and are not interfering with
aquatic species migration.
It is our position that this NWP is
useful in expediting the processing of
permits for some surface coal mining
operations provided that adequate
compensatory mitigation accompanies
the activity so that there is an overall
net improvement in functions of the
aquatic environment. Our scope of
analysis will continue to be limited to
the impacts to the aquatic environment.
The locations of the mines are
dependent on location of the coal
seams.
The existing permit relies primarily
on any state-required mitigation under
SMCRA to address impacts to the
aquatic environment. The Corps has
determined that this is not appropriate,
as the requirements of SMCRA differ
from those of the CWA and reliance on
SMCRA authorization may not result in
adequate mitigation for adverse impacts
to the aquatic environment. Therefore,
the reissued permit provides for Corps
determination of appropriate mitigation
in accordance with General Condition
19. Corps review is limited to the direct,
indirect, and cumulative effects of fills
in waters of the U.S. In order to ensure
that appropriate mitigation is
performed, and that no activities are
authorized that result in greater than
minimal adverse impacts, either
2043
individually or cumulatively, the
revised permit also requires not only
notification, but also explicit
authorization by the Corps before the
activity can proceed. The Corps believes
that both of these changes will
strengthen environmental protection for
projects authorized by this permit. This
permit will be reissued as proposed.
22. Removal of Vessels. There were no
changes proposed to this nationwide
permit. There were no comments on this
nationwide permit. The nationwide
permit is reissued without change.
23. Approved Categorical Exclusions.
There were no changes proposed to this
nationwide permit. One commenter
indicated that although the Office of the
Chief of Engineers may have been
furnished notice of a list of activities,
and concurred, a list of activities did not
appear to have been included in the
referenced August 9, 2001, Federal
Register notice on which the reissuance
of the NWP Program will be based. The
commenter further stated that the
absence of this critical information
mirrors the Corps piece-mealing
approach to Regulatory implementation
of the CWA that is found in the issuance
of Corps permits in the southeastern
U.S. The commenter also stated that
because of the lack of this information,
the public is unable to determine
whether new information supporting
reversal may have become available
since the decisions that these activities
do not have a significant effect on the
human environment. Another
commenter stated that this permit
illegally delegates to other federal
agencies the ability to decide whether
their projects will result in more than
minimal impacts. The permit effectively
has no ceiling on individual or
cumulative impacts and covers a broad
range of activities. An additional
commenter suggested that the NWP 23
activities listed are extremely dissimilar
in nature and impact. It is not possible
for the agencies to have made a
reasonable evaluation of the cumulative
impacts of all of the activities in this
permit.
When the Corps considers whether an
agency’s categorical exclusions have no
more than minimal adverse effects on
the aquatic environment and whether
they could be authorized by this NWP,
the Corps first seeks public comment
and publishes the proposal in the
Federal Register. The Corps then
determines whether the agencies
categorical exclusions have no more
than minimal adverse effects on the
aquatic environment. The Corps has not
approved all agency categorical
exclusions, has added further
conditions and has required pre-
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2044 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
construction notifications to ensure that
there are no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively.
Furthermore, Corps districts and
divisions have the discretionary
authority to require regional conditions,
case-specific conditions or individual
permits where the adverse effects may
be more than minimal.
One commenter indicated that all
projects requiring stream channelization
should be evaluated through the
Individual Permit process. Another
commenter suggested projects affecting
more than 1 ⁄10th acre of wetland should
require a pre-construction notification
to the Corps and those affecting 1 ⁄3 acre
should require an Individual Permit. A
commenter recommended all bridge
projects that are not longer than 1.5
times bankfull width should be elevated
to an individual permit process.
General condition 21 contains
provisions to minimize adverse impacts
related to water movement, including
channelization and passage of high
water flows. When reviewing an
agency’s categorical exclusion for
approval under this NWP the Corps
considers the need for a preconstruction
notification. We have
required a pre-construction notification
where we believe that it was necessary
to ensure that the adverse effects would
be no more than minimal, and we have
required the individual permit process,
where needed. The nationwide permit is
reissued without change.
24. State Administered Section 404
Programs. There were no changes
proposed to this nationwide permit.
One commenter stated that applicants
will find it difficult to keep up with a
complex matrix of non-uniform
approaches to regulating water bodies if
states across the country run their
section 404 programs differently.
The Corps recognizes that nationally
there may be different approaches by
the states toward regulating section 404
discharges into those waters. However,
the Corps will not change the way the
states regulate in those waters by
requiring a Corps individual permit
process. Currently, this NWP is only
applicable in the States of Michigan and
New Jersey, which have assumed the
Clean Water Act section 404 authority
in Navigable Waters of the United States
based on historic use only. In those
waters, which are subject to section 10
of the Rivers and Harbors Act based
solely on the historic use for interstate
waterborne commerce, the state
administers the Section 404 program
while the Corps has a permit role under
Section 10. Those waters do not have
current nor are they susceptible to use
for water borne commerce. The Corps
believes that the states are considering
and adequately addressing the
environmental impacts of these projects.
The Corps further believes that there are
no impacts affecting waterborne
commerce needing Section 10 review.
Therefore, there is no need to process an
individual permit for these activities.
The nationwide permit is reissued
without change.
25. Structural Discharges. There were
no changes proposed to this nationwide
permit. There were no comments on this
nationwide permit. The nationwide
permit is reissued without change.
26. [Reserved] One commenter
indicated that, if reissued, NWP 26 must
be modified to significantly lower the
threshold of activities not requiring an
individual permit.
There are no plans to reissue NWP 26.
This NWP expired on June 7, 2000. The
number 26 is being reserved to avoid the
need to renumber all of the subsequent
NWPs. We believe that renumbering
NWPs 27 through 44 would be
confusing and unnecessary.
27. Wetland and Riparian Restoration
and Creation Activities: In the August 9,
2001, Federal Register notice, we
proposed to modify this NWP by
combining two categories of land (‘‘any
Federal land’’ and ‘‘any private or
public land’’) into a single category:
‘‘any other public, private, or tribal
lands’’. Therefore, there would be three
categories of land that would be eligible
for NWP 27 activities, instead of four
categories. This change will not affect
how or if any activities will be
authorized by this NWP.
Many commenters supported the
Corps proposal to combine the four
categories of lands into three categories.
A commenter recommended limiting
the use of this NWP to activities
conducted or sponsored by Federal or
state agencies. One commenter
suggested adding the National Marine
Fisheries Service and the National
Ocean Service to paragraph (a)(1). This
commenter also recommended adding
‘‘the construction of oyster habitat over
unvegetated bottom in tidal waters’’ to
the list of examples of activities
authorized by this permit. This
commenter said that these changes
would result in a reduction in Corps
workload, and authorize activities
conducted under National Marine
Fisheries Service and National Ocean
Service restoration grant programs.
To simplify the descriptions of the
types of lands eligible for this NWP, we
are combining paragraphs (a)(2) and
(a)(4) of NWP 27 to read as ‘‘any other
public, private, or tribal land’’ in
paragraph (a)(3). The previous text of
paragraph (a)(3) has been moved to
paragraph (a)(2).
We do not agree that this NWP should
be limited to activities conducted or
sponsored by Federal or state agencies,
because such a restriction would affect
the ability of the Corps to effectively
authorize aquatic habitat restoration or
creation (establishment) activities
conducted by individuals, nongovernment
organizations, or local
governments. We have added ‘‘the
construction of oyster habitat over
unvegetated bottom in tidal waters’’ to
the list of examples of activities
authorized by this NWP. Since the
construction of oyster habitat in tidal
waters could potentially affect
navigation, it is important to consider
General Condition 1. The construction
of oyster habitat in tidal waters cannot
have a more than minimal adverse effect
on navigation.
We have modified paragraph (a)(1) to
include restoration activities undertaken
through the programs of the National
Marine Fisheries Service and the
National Ocean Service. In addition, we
have modified the text of this NWP by
adding the phrase ‘‘ * * *, to the extent
that a Corps permit is required, * * * ’’
after the phrase ‘‘Activities authorized
by this NWP include * * *’’.
One commenter stated that, even
though activities authorized by permit
would result in an increase of wetland
habitat, NWP 27 should have an upper
limit to require more detailed review of
restoration and creation projects that
involve larger impacts to wetlands.
Another commenter said that an acreage
limit is needed for this NWP because
there are inadequate assurances that it
authorizes only activities with minimal
adverse environmental effects. This
commenter suggested imposing a 250
linear foot limit and a 1 ⁄4 acre limit on
wetland impacts for restoration
activities and a five acre limit for
wetland enhancement projects. This
commenter also recommended requiring
notification and agency coordination for
all activities undertaken by private
individuals that impact wetlands or
more than 100 linear feet of stream, with
the notification including
documentation of the hydrologic
analyses used to design the project.
Another commenter said that the
‘‘wetland enhancement, restoration or
creation agreement’’ described in
paragraph (a)(1) should be reviewed and
approved by the Corps and other
resource agencies and each agreement
should have enforceable conditions.
We do not agree that acreage or linear
limits are necessary for this NWP, since
it authorizes activities that restore,
enhance, or create aquatic habitats. The
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terms of this NWP, as well as the
notification requirements described in
paragraph (b), will ensure that the
activities authorized by this NWP result
only in minimal adverse effects on the
aquatic environment. District engineers
will review pre-construction
notifications for activities on public and
private land not conducted under the
terms of paragraphs (a)(1) or (a)(2) and
determine whether those activities will
result in minimal adverse effects on the
aquatic environment. Agency
coordination is not necessary for NWP
27 activities undertaken by private
individuals because Corps personnel
have the expertise necessary to evaluate
proposed NWP 27 activities. We do not
believe that it is necessary for the Corps
and other resource agencies to review
agreements between landowners and the
U.S. Fish and Wildlife Service or
Natural Resources Conservation Service.
We concur that these agreements should
have enforceable conditions.
One commenter suggested adding the
phrase ‘‘* * * and the planting of
appropriate wetland species’’ after the
phrase ‘‘* * * activities needed to
reestablish vegetation * * *’’ and
changing ‘‘* * * mechanized land
clearing to remove undesirable
vegetation * * *’’ to ‘‘* * *
mechanized land clearing to remove
non-native invasive, exotic or nuisance
vegetation * * *’’.
We concur with these
recommendations and have made these
changes to the text of the NWP.
One commenter objected to the
reissuance of this NWP, stating that it
lacks effective oversight, especially for
activities on public and private lands,
its use has not been effectively
monitored in the Corps regulatory
database, and the terms ‘‘restoration’’
and ‘‘enhancement’’ are inadequately
defined. To address these concerns, this
commenter suggested that all projects
must be subjected to strict, enforceable
success criteria; all failed projects must
be corrected to offset any adverse
impacts to waters of the United States;
all permitted projects must be overseen
by a qualified restoration specialist;
only those activities with high
likelihood of success should be
approved; include a more extensive list
of activities not authorized by NWP 27;
prohibit the use of NWP 27 to construct
compensatory mitigation projects; and
limit NWP 27 to one use per applicant
per stream. One commenter said that
this NWP should not authorize the
construction of mitigation banks.
As with all NWPs, the use of this
NWP is monitored by each of the Corps
districts, to ensure that it authorizes
only those activities with individual
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
and cumulative adverse effects on the
aquatic environment.
Since the publication of five new and
six modified NWPs in the March 9,
2000, issue of the Federal Register (65
FR 12818), the terms ‘‘restoration’’ and
‘‘enhancement’’ have been defined in
the ‘‘Definitions’’ section of the NWPs.
Since that time, the Federal government
has adopted new definitions for
purposes of tracking losses and gains of
wetlands under the previous
Administration’s Clean Water
ActionPlan. The new definitions also
apply to mitigation activities for other
types of aquatic habitats. Under the new
definition for restoration, there are two
types activities: re-establishment and
rehabilitation. Re-establishment
involves the rebuilding of a former
wetland, resulting in a net gain in
wetland acres. Rehabilitation involves
the manipulation of a degraded wetland
to repair natural or historic functions,
but does not result in a net gain in
wetland acres. Enhancement is the
manipulation of a wetland for a specific
purpose, resulting in increases in some
wetland functions and declines in other
wetland functions, with no gain in
wetland acres.
Where strict criteria are necessary to
ensure the success of stream or wetland
restoration projects, district engineers
can add special conditions to NWP 27
authorizations to specify success
criteria. If those success criteria are not
met, district engineers can use their
enforcement authority to require the
permittee to identify the reasons for
failure and implement necessary
remedial measures. We do not agree that
it is necessary for activities authorized
by this NWP to be overseen by qualified
restoration specialists. The text of NWP
27 clearly states what is not authorized
by the NWP; we do not believe any
additional clarification is necessary.
Since NWP 27 authorizes activities that
provide benefits for the aquatic
environment, it would not be
appropriate to limit the use of this NWP
to one time per project proponent per
stream channel.
We maintain our position that NWP
27 should authorize the construction of
compensatory mitigation sites,
including mitigation banks, provided
those sites result in net increases in
aquatic resource functions and values.
NWP 27 requires compensatory
mitigation for impacts to waters of the
United States caused by the authorized
work, as well as notification to the
district engineer in accordance with
General Condition 13. A mitigation bank
can also be authorized by NWP 27, as
long as the mitigation bank has been
2045
approved under the 1995 Interagency
Mitigation Banking Guidelines.
One commenter recommended that
the use of this permit should be limited
to restoring streams to their historic,
undegraded states to prevent their use
as a flood control projects. Another
commenter said that district engineers
should have the authority to waive the
prohibition against conversions of
certain types of streams or natural
wetlands to other aquatic habitat types
that could provide more environmental
benefits for local watersheds.
NWP 27 does not authorize flood
control projects. This NWP authorizes
stream restoration activities, which may
include grading stream banks and
riparian areas so that those riparian
areas are flooded more frequently by the
streams. In other words, flood storage
capacity may be increased by a stream
restoration project, but the increase in
flood storage capacity is not the main
goal of the project. We do not agree that
this NWP should allow flexibility to
waive prohibitions against certain
conversion activities, since conversions
of streams, wetlands, and other waters
may result in more than minimal
adverse effects to the aquatic
environment. If such conversions would
provide net benefits for watersheds,
then those activities could be authorized
by other types of permits, including
standard permits.
A commenter suggested that NWP 27
should be modified to prohibit the
creation of open water areas in existing
wetlands and the relocation of existing
wetlands. One commenter supported
the provision that states this NWP does
not authorize the conversion of natural
wetlands into another aquatic use, but
recommended prohibiting the
‘‘relocation of aquatic habitat types on
the project site’’ and prohibiting the use
of riprap or other armoring material.
One commenter said that activities
authorized by this NWP should not be
allowed to alter the basic functions and
habitat of ‘‘high quality wetlands’’ and
that all projects should have a long-term
management plan with a binding
contract between the landowner and the
Federal and state fish and wildlife
agencies, not the Natural Resources
Conservation Service.
We maintain our position that the
relocation of non-tidal waters, including
non-tidal wetlands, on the project site
should be authorized by this NWP,
provided there are net gains in aquatic
resource functions and values. We do
not agree that this NWP should prohibit
the use of riprap because riprap
contains crevices and other habitat
features for small organisms. Other
armoring materials can provide habitat
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2046 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
for aquatic organisms. The use of
armoring materials for stream and
wetland restoration activities is at the
discretion of the district engineer. We
do not agree that it is necessary to have
a long-term management plan with a
binding agreement between landowners
and the Federal and state fish and
wildlife agencies for all activities
authorized by this NWP.
One commenter said that some
activities authorized by this NWP do not
comply with the Clean Water Act. One
example offered by this commenter is
the conversion of waters of the United
States to storm water treatment facilities
and sewage treatment facilities, under
the guise of restoration and mitigation.
This commenter states that NWP 27
should be revoked because the activities
authorized by this NWP are not similar
in nature and it is unreasonable to
conclude that all of the cumulative
adverse impacts on the human
environment could be considered for
such a category of dissimilar activities.
This NWP does not authorize the
construction of storm water
management facilities or sewage
treatment facilities. Storm water
management facilities and sewage
treatment facilities may be authorized
by NWP 43 or individual permits. The
activities authorized by NWP 27 comply
with the similar in nature requirement
for general permits. This NWP
authorizes aquatic habitat restoration,
creation, and enhancement activities
that provide benefits for the aquatic and
human environments. NWP 27 is
reissued with the modification
discussed above.
28. Modifications of Existing Marinas.
There were no changes proposed to this
nationwide permit. There were no
comments on this nationwide permit.
The nationwide permit is reissued
without change.
29. Single-family Housing. There were
no changes proposed to this nationwide
permit. One commenter stated that the
Corps has failed to demonstrate with
substantial evidence that the acreage
limits applicable to this and many other
NWPs is sufficiently protective of the
environment. The commenter also
stated that the Corps must validate, with
evidence and an environmental impact
analysis, the acreage limits it sets for all
NWPs. Another commenter said that
single-family housing is not a water
dependent activity, and therefore it is
presumed that alternative locations are
available for these activities. That
commenter also stated that activities
authorized by this permit are not similar
and result in more than minimal
adverse environmental effects, even
individually, much less cumulatively
and, that the acreage limits are arbitrary
and capricious. Another commenter
recommended a full environmental
impact statement and, at a minimum,
only use the permit to authorize homes,
without attendant features, with a 1 ⁄10
acre limit and that the Corps establish
a process to monitor cumulative impacts
over time. The commenter also
recommended the Corps prohibit use of
this permit in high growth counties and
that it not be used to authorize
placement of septic tanks or leach fields
in wetlands.
The Corps believe that the listing of
the type of activities authorized by this
NWP will ensure that those activities
authorized by this NWP will be similar
in nature. Further, we believe that
normally these activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. Further, Division and
District Engineers will condition such
activities where necessary to ensure that
these activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. Therefore we find that the
NWPs do not require an EIS. However,
we do prepare environmental
assessments to assess potential impacts.
NWP 29 was originally issued with a 1 ⁄2
acre maximum limit. We reviewed this
threshold in 1999 and decided to reduce
the maximum acreage limit for NWP 29
to 1 ⁄4 acres. We continue to believe that
this is the appropriate maximum
acreage limit. The environmental
assessment for this NWP is published
on our webpage for review. It is true that
the activities authorized by the NWP are
not water dependent as defined in the
Section 404(b)(1) guidelines. However,
the alternatives test does not apply to
NWPs as stated in the 404(b)(1)
guidelines. Therefore, it is not presumed
that alternative locations are available
for these activities. Furthermore, the
EPA and the Corps issued additional
guidance on March 6, 1995 regarding
compliance with the Section 404(b)(1)
guidelines for small landowners. These
activities comply with this guidance.
This guidance is also available on the
Corps webpage. The nationwide permit
is reissued without change.
30. Moist Soil Management for
Wildlife. There were no changes
proposed to this nationwide permit.
One commenter suggested that this
permit be revised to allow local public
agencies to conduct these activities,
especially when they would result in
environmentally useful activities.
Another commenter stated that, because
the activities authorized by this permit
are not similar, the permit should be
withdrawn. They go on to say that since
the general public cannot determine
what activities are authorized by this
permit, direct, indirect, or secondary
impacts cannot be determined to result
in minimal adverse environmental
impacts.
We agree that this NWP should also
allow local agencies to conduct these
activities on public property. Therefore
we have modified the NWP to allow
activities on local government agency
owned or managed property to also be
authorized by this NWP. We believe that
the terms and conditions will ensure
that the adverse effect on the aquatic
environment will be minimal. Further
we believe this change will provide for
additional opportunities for activities to
provide needed environmental benefits.
Also should some of these activities
have the possibility to have adverse
environmental effects, the Corps
districts or divisions have the
discretionary authority to require
activity specific conditions or regional
conditions. We believe that the listing of
the type of activities will ensure that
those activities authorized by this NWP
will be similar in nature. Further, we
believe that normally these activities
will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. Further,
Division and District Engineers will
condition such activities where
necessary to ensure that these activities
will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. The
nationwide permit is reissued with the
change described above.
31. Maintenance of Existing Flood
Control Facilities. The Corps proposed
to modify NWP 31 to clarify Corps
policy and requirements regarding
mitigation for maintenance activities.
We also proposed to clarify
documentation requirements for the
baseline determination, and allow
maintenance of areas that are a part of
the flood control facility without
constructed channels provided that the
Corps approves Best Management
Practices to ensure that adverse
environmental effects are no more than
minimal.
Two commenters insisted that the
language of this NWP must be clear that
exempt facilities are not now regulated
and they suggested that facilities built
prior to, or that were not subject to
mitigation as part of the CWA, should
not now be subject to mitigation
requirements for routine maintenance.
They suggested that the language of the
currently proposed NWP conflicts with
the Corps policy indicating that routine
maintenance impacts are temporary and
generally not worthy of mitigation. They
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questioned how one mitigates for
‘‘unspecified discharges’’. They also
agree with the Corps Civil Works policy
that one-time mitigation should be
required as part of the project and
should address all permanent and
temporary impacts, and that this should
be required at the time the project is
initially constructed. Most commenters
agreed that a one time mitigation
requirement for these maintenance
projects may be appropriate.
We do not agree that discharges of
dredged or fill material in waters of the
United States that are part of a pre-Clean
Water Act flood control facility are
exempt from permit or mitigation
requirements. Although discharges
associated with the construction of
facilities that pre-date the Clean Water
Act are not subject to any retroactive
authorization requirement, waters of the
U.S. flowing through such facilities are
not excluded from jurisdiction under
the Act. As such, discharges of dredged
or fill materials into these waters remain
subject to section 404 requirements.
NWP 31 conveys the section 404
authorization for discharges associated
with flood control facility maintenance
activities, provided (1) That a
maintenance baseline is established, (2)
that the adverse effects of discharges
associated with establishing that
baseline are adequately mitigated, and
(3) that discharges associated with
subsequent maintenance activities do
not alter the maintenance baseline. We
believe that mitigation need only be
imposed once, as part of the
establishment of the maintenance
baseline, to ensure that the loss of
waters of the U.S. that are attributable
to discharges associated with the
establishment of that baseline are no
more than minimal. Once this is
accomplished, regulated discharges that
are associated with maintaining the
established baseline, and that do not
incur losses beyond those addressed in
conjunction with the establishment of
that baseline, are authorized under NWP
31 without the need for further
mitigation.
We believe that the utilization of the
‘‘maintenance baseline’’ procedure is
consistent with Corps policy to the
effect that ‘‘routine maintenance
impacts are temporary and generally not
worthy of mitigation.’’ The maintenance
baseline establishes the limits within
which regulated maintenance-related
discharges are authorized by NWP 31,
and excluded from additional mitigation
requirements. We agree that, ideally, all
mitigation for permanent and temporary
impacts resulting from the construction
of flood control facilities, and from the
inevitable maintenance, should be
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
imposed only once, at the time of initial
construction. The Clean Water Act does
not provide an exemption for discharges
into the waters of the U.S. specifically
for maintenance of flood control
facilities. Unless section 404
authorization for discharges associated
with regulated construction and
maintenance activities has been
conveyed through some other means,
such as through the Federal Project
authorization process, authorization
through the Corps permit process is
required. As previously indicated,
although section 404 authorization is
not required for discharges associated
with flood control facility construction
that pre-dates the Clean Water Act, the
Act does not exempt discharges in
waters of the U.S. that may accompany
the maintenance of these facilities. We
believe that NWP 31, with the inclusion
of the maintenance baseline provision,
is a reasonable and appropriate
procedure for conveying the section 404
authorization required for maintenancerelated
discharges that have not been
previously authorized through other
means. Finally, the question as to how
one mitigates for ‘‘unspecified
discharges’’ is, we believe, based on a
misprint in the original Federal Register
notice. The preamble, at page 42077 of
this notice indicates that we intended to
‘‘* * * proactively prescribe mitigation
for * * * unspecified discharges
* * *’’ (emphasis added). This sentence
should have read ‘‘* * * proactively
proscribe mitigation for * * *
unspecified discharges * * *’’
One commenter suggested that the
mitigation requirement should consider
future, cumulative impacts as these
impacts would likely result in more
than minimal adverse impacts to aquatic
resources.
We believe that mitigation
requirements associated with NWP 31,
as proposed, are sufficient to account for
future, cumulative impacts. As
envisioned, mitigation will be required
for adverse effects on the aquatic
environment that are attributable to
regulated discharges associated with the
establishment of the baseline physical
parameters (i.e., the maintenance
baseline) of the flood control facility.
Maintenance-related discharges that do
not exceed the established maintenance
baseline will not result in losses of
aquatic resources beyond those
addressed at the time the maintenance
baseline is established. Discharges that
exceed the established maintenance
baseline are not eligible for
authorization under NWP 31.
One commenter stated that baseline
criteria are often difficult to produce,
especially for much smaller drainage/
2047
utility districts which may not have nor
maintain such records. Two other
commenters indicated their support for
revisions to this permit which recognize
that cyclic maintenance is inherent in
the continued operation of flood control
facilities, and that regulated discharges
will inevitably occur as a result of this
activity. They also support the revisions
allowing discharges in emergency
situations. They suggested that the
Corps should clarify that, in situations
where baseline information is
unavailable due to the age of the facility,
lack of construction drawings will not
preclude use of this NWP.
We acknowledge that producing
records of baseline parameters may not
be possible in all cases, but we can not
waive this requirement. In these cases,
a new maintenance baseline must be
established before the maintenancerelated
discharges in the subject facility
are eligible for authorization under
NWP 31.
One commenter suggested that the
proposal to authorize maintenance
activities on natural features is a
departure from previous practice and
creates the greatest risk for more than
minimal adverse environmental
impacts. Also, they state that they
believe it is critical that the Corps
articulate its basis for extending
authorization into areas that previously
have been prohibited under this NWP,
as well as an explanation as to why it
believes that adequate protection will be
provided through the use of BMPs. They
want the Corps to clarify under what
circumstances it considers a natural
segment to be ‘‘incorporated’’ into a
flood control facility, as the term may be
interpreted broadly to the detriment of
aquatic resources. Lastly, they also
believe that the open ended nature of
the provision may lead to greater than
minimal impacts and confusion after the
activities are completed, when
mitigation is required, and urge the
Corps to make clear that this provision
only applies to situations satisfying the
minimal effects test in light of existing
regulatory provisions that already
provide for emergency permitting.
The incorporation of natural areas
into an overall flood control facility is
accomplished through the establishment
of a maintenance baseline that includes
these areas. Although the current NWP
31 differs from its predecessor with
respect to the treatment of these natural
areas, this NWP does not authorize
discharges that exceed this baseline. As
such, NWP 31 does not authorize any
regulated discharge that results in the
further loss of jurisdictional aquatic
areas in the flood control facility,
including those in the subject natural
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2048 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
areas. Upon incorporation in the
maintenance baseline, the physical
parameters of the natural area can be
maintained, but not exceeded, through
maintenance activities that may involve
regulated discharges that are authorized
by NWP 31. For example, scoured banks
in a natural area may be restored to the
baseline condition (but only restored,
not exceeded) through a discharge of fill
material that is authorized under NWP
31. Beyond this, the application of Best
Management Practices (such as a timeof-year
restriction on the discharge) may
further minimize adverse effects on the
aquatic environment. As with all NWPs,
Corps Districts may ‘‘override’’ the use
of this NWP by requiring individual
permits in situations where the District
believes that adverse effects are likely to
exceed the minimal level. In light of
these factors, we do not agree that the
concerns presented in this comment
warrant further modification of NWP 31.
One commenter objects to the ‘‘onetime
mitigation requirement’’ as the
Corps has not satisfactorily
demonstrated that compensatory
mitigation is successful in replacing the
lost functions and values destroyed
through the original construction of the
flood control facility. They also state
that it is impossible to pre-determine
the magnitude of potential adverse
impacts when there are no limits on the
acreage of impacts or cubic yardage of
excavation authorized under this
permit.
Excavation in waters of the U.S. that
results in only incidental fallback is not
regulated under section 404 of the Clean
Water Act, and such activities are not
subject to mitigation requirements
imposed under that law. Regardless, in
the context of the NWPs, the mitigation
of the adverse effects of regulated
activities need only offset those effects
such that ‘‘no more than minimal’’
adverse effects remain, and not
necessarily to guarantee that losses are
exhaustively compensated. NWP 31
authorizes maintenance-related
discharges that are subject to regulation
under section 404. The establishment of
the maintenance baseline, in effect,
identifies the location and physical
dimensions of waters of the U.S. that
have been incorporated in the flood
control facility. Discharges that result in
losses of these waters (i.e., that exceed
the maintenance baseline) are not
eligible for authorization under NWP
31. In light of this, we believe that the
‘‘one time mitigation requirement’’
imposed in conjunction with the
establishment of the maintenance
baseline is sufficient for the purpose of
this NWP.
One commenter indicated that there
are far too many unclear considerations
in this permit for it to protect water
quality and critical aquatic habitat. They
recommend the Corps (1) Process
emergency activities through individual
permits, (2) maintain and strengthen
existing mitigation requirements for
unavoidable impacts and amend as
needed to comport with aquatic habitat
changes, (3) develop a clear definition of
acceptable maintenance baselines and a
clear explanation of what constitutes
suitable documentation, and (4) include
adequate conditions that further protect
water quality and aquatic habitat and
must allow comment from the public
prior to adoption and implementation.
Although we respect the concerns that
are implicit in this comment, we do not
agree that further modification or
elaboration of NWP 31 (or of our
emergency permit procedures) is a
necessary or appropriate way to address
them. In adopting generic permits such
as NWP 31, and in designing emergency
procedures for nationwide application,
we try to avoid being unnecessarily
prescriptive or restrictive. Our intent is
to afford Corps Division and District
offices with significant discretion and
latitude as to the final application of the
NWP program and the emergency
procedures, in order to allow them to
tailor the actual application of the
NWPs to the nuances of local situations
that we can not anticipate. Toward this
end, we strive to make the generic
NWPs as broad as possible within the
constraints imposed by the law and
related regulations, in order to
maximize the potential applicability of
these permits. At the same time, we
provide our Division and District offices
with the authority to further condition,
modify, suspend, or revoke these
permits in response to regional or local
conditions that demand such actions to
ensure that effects remain at or below
the ‘‘minimal’’ level. The corollary to
that authority is the Division and
District responsibility to ensure that the
‘‘no more than minimal’’ threshold is
not exceeded by individual activities
authorized under a NWP.
One commenter recommended that
the Corps consider a review of potential
cost to the applicant in establishing a
maintenance baseline on a given project.
They also opined that any review of
whether a project has been abandoned
should consider more than just time in
that decision-making process due to the
fact that the financial resources to
perform that maintenance in what might
be considered a timely manner are not
always available.
Although we are aware of the
importance of cost considerations to all
applicants for Corps permits, we have
no authority to waive requirements
under the law because of these
considerations. The establishment of a
maintenance baseline is the key
component of NWP 31 because it
delineates parameters of waters of the
U.S. that are incorporated into the flood
control facility, within which regulated
discharges are eligible for authorization
under the NWP. As such, we can not
factor cost considerations into the
requirements for establishing a
maintenance baseline. We believe that
NWP 31, as proposed, does not compel
an abandonment determination to be
based exclusively on the time that
elapses between maintenance events.
This provision of NWP 31 takes into
account whether the capacity has been
significantly reduced, and whether
maintenance was needed but not
performed, in addition to consideration
of the length of time during which the
capacity has been significantly reduced,
and during which needed maintenance
was not performed. The non-specific
nature of the facets of this provision is
deliberate, as is the absence of a
consideration of environmentally
beneficial features, such as wetlands,
that may have developed between
maintenance events. Our awareness of
some of the practical realities of
operating and maintaining flood control
facilities encourages us to believe that
the bar should be set fairly high for
determining that such a facility has been
abandoned for the purposed of NWP 31.
One commenter suggested that the
development of the ‘‘maintenance
baseline’’ to be employed at these
facilities should account for channel
and habitat characteristics associated
with a hydrogeomorphic approach.
The establishment of the maintenance
baseline is related to ensuring that
losses of waters of the United States,
beyond those addressed in conjunction
with such establishment, do not occur
as a result of regulated discharges that
are authorized by the NWP. We do not
believe that formalized assessment
methodologies are necessary to
accomplish this. The implication of this
suggestion is that NWP 31 procedures
should be used to determine baseline
channel and habitat characteristics,
which could then be maintained
through subsequent authorizations
under the NWP. We do not believe that
this is practical or appropriate. Many
maintenance activities that are not
subject to regulation under section 404
of the Clean Water Act, such as
excavation that results in only
incidental fallback, are likely to affect
channel and habitat characteristics as
much as, or more than, the kinds of
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discharges that are regulated under
NWP 31. We do not believe that it is
appropriate to use this NWP to regulate
effects that are not attributable to
regulated activities.
Two commenters stated that the
periodic maintenance of flood control
facilities is required for the operation of
those facilities and will not have a
significant adverse impact on the
environment when conducted within
the maintenance baselines for such
facilities. They support the clarification
proposed for NWP 31 that maintenance
of these facilities do not require
compensatory mitigation when
approved BMPs are utilized.
We believe that the maintenance
baseline procedure, in combination with
the imposition of BMPs, will preclude
the need for mitigation for regulated
discharges associated with routine and
recurrent maintenance activities in most
cases. However, in designing
nationwide generic permits such as
NWP 31, we ultimately rely on our
Division and District offices to provide
the final surety that the specific
regulated activities that are authorized
under the NWPs do not result in more
than minimal effects. To ensure that the
‘‘minimal effect’’ threshold is not
exceeded in individual cases, we
believe that the Divisions and Districts
must continue to have the authority to
impose mitigation requirements in
addition to BMPs as a means of
achieving this.
Three commenters stated that the
Corps should not regulate temporary
discharges associated with maintenance
activities within the flood control
facilities since there is not a permanent
impact. They state that NWP 31 should
make it clear that temporary stockpiles
and redeposits associated with
otherwise unregulated excavation is not
a loss of a water of the U.S. that requires
compensatory mitigation. They also
state this holds true for other
maintenance activities associated with
the flood control facility that are not
within Corps jurisdiction, i.e., mowing
or brush hogging. In addition, they
assert, if the flood control facility was
constructed by the Corps and turned
over to a local or state agency for
maintenance, and did not mitigate for
the maintenance of its project, the
receiving agency should not be
burdened with the Corps omission.
They also suggest that ensuring that
mitigation and/or ESA surveys would
not be required if the maintainer
reduced the frequency of routine
maintenance might be a valuable
mitigation tool in and of itself. Lastly,
the Corps should provide a means that
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
minimal impact NWP 31 activities
could be authorized without a PCN.
We agree that, in situations where
there is no permanent loss of waters of
the U.S., no mitigation for such
temporary effects is required. However,
this does not exempt temporary
discharges from the need for section 404
authorization, even when those
discharges are only incidental to
otherwise unregulated activities.
Generally, we believe that it is not
appropriate to impose mitigation for
effects attributable to unregulated
activities, such as excavation that
results in only incidental fallback, but to
the extent that significant regulated
discharges may accompany some
unregulated maintenance activity,
mitigation may be required to ensure
that there are no more than minimal
adverse effects. We believe that such
determinations must be made on a caseby-case
basis, as individual NWP
authorizations are confirmed.
We do not intend to impose any
restriction on the frequency of routine
maintenance. We believe that such
decisions should be left to those
responsible for the operation and
maintenance of flood control facilities,
since they must often must balance
budget limitations against the projected
need for maintenance.
We do not intend to impose, on local
sponsors, any requirement to mitigate
for impacts attributable to the
construction of a Corps-constructed
flood control facility. However, many
such facilities were constructed prior to
the implementation of the Clean Water
Act, so no section 404-related mitigation
was required. Although Clean Water Act
requirements are not retroactively
imposed on the construction of these
facilities, the Corps has no authority to
exempt current discharges of dredged or
fill material that occur in conjunction
with the maintenance of the facility, or
to waive any requirement for necessary
mitigation.
Reiterating the concern of the
previous comment, another commenter
stated that, absent sufficient reasoning
for requiring a PCN, the Corps should
delete the PCN requirement from this
permit as it is costly to the applicant
both from a time and money standpoint.
We are not currently confident that
we could prescribe conditions and
limitations on potential NWP 31authorized
discharges sufficient to
ensure that their adverse effects can
reasonably be determined to be no more
than minimal in most cases, in the
absence of site-specific verification
through the PCN process. Conversely,
we are not certain that the PCN
requirement for this NWP could not be
2049
relaxed at some point in the future, as
we gain greater experience with use of
the NWP. In light of this uncertainty, we
believe that the inclusion of the PCN
requirement is prudent, for the current
issuance of this NWP, but the Corps will
continue to evaluate its appropriateness
for future reissuances.
One commenter supported the
concept of maintenance baseline,
however, to assure the impacts are
minimal, suggests that the state
regulatory agencies and state and federal
resource agencies be involved in the
review and approval of the maintenance
baseline, as well as mitigation for the
projects.
The Corps believes that establishment
of the maintenance baseline is
essentially a technical exercise. Since
the maintenance baseline for NWP 31
purposes, as proposed, is a description
of the physical characteristics of the
flood control project that has been or is
being constructed through some
independent authorization, we do not
agree that coordination with state or
Federal agencies is necessary or
warranted for the establishment of the
baseline. Coordination may be necessary
or appropriate for authorization of the
project itself, depending on the terms
and conditions of the legal authority
under which project authorization
occurs.
Two commenters indicated the need
to define ‘‘best management practices’’
and ‘‘maintenance baselines’’ so that a
true assessment of impacts resulting
from the proposed changes to the NWP
can be made. They also suggested that
the Corps should work with local
communities to restore floodplain
functions, where possible, and maintain
existing wetlands to help moderate peak
flows.
We believe that the concepts of ‘‘best
management practices’’ and of the
‘‘maintenance baseline’’ do not need
further definition in order to adequately
understand the impacts of this NWP.
Through the Regulatory Program, and
through other Civil Works and Military
Programs, the Corps does work with
local communities to restore floodplain
functions and to maintain and restore
wetlands, but these comments are
outside the scope of NWP
considerations.
One commenter indicated the changes
to this permit could allow any stream
that has been deemed incorporated into
a ‘‘flood control facility’’ to be routinely
maintained with little or no mitigation
required. He suggested that mitigation
should be required for all maintenance
activities.
In issuing this NWP, it is our intent
to provide for identification of the
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2050 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
extent of waters of the U.S. that exist
within the flood control facility, and to
authorize maintenance-related,
regulated discharges in a manner that
does not result in a net loss of these
waters. We believe that it is appropriate
to include streams that have been
incorporated into flood control facilities
through the establishment of a
maintenance baseline. As long as the
maintenance baseline is not exceeded,
we believe that the authorization of
maintenance-related discharges, with
little or no mitigation, is adequate and
appropriate, both in areas that include
structural features and in those that do
not. In light of the fact that only the
discharge associated with maintenance
activities requires a CWA section 404
permit and other maintenance activities
may not be regulated even if conducted
in section 404-only waters, we do not
believe that mitigation for all
maintenance activities is necessary or
appropriate. It is not our intent to use
this or any NWP to require mitigation
for unregulated activities. Despite this,
Corps Division and District offices are
authorized to impose mitigation
requirements that they determine are
necessary to keep effects at a minimal
level.
One commenter suggested that
maintenance baselines be re-evaluated
periodically to determine if it still
reflects existing conditions. Two other
commenters opposed the specifications
for one-time mitigation stating that
habitat and species composition
changes over time, warranting
additional mitigation. Also, a separate
and new permit should be created
through coordination with the US Fish
and Wildlife Service for emergency
flood control work.
The maintenance baseline is intended
to be a fixed description of physical
parameters that cannot be exceeded by
regulated discharges authorized under
NWP 31. Changes in conditions in the
flood control facility are expected to
occur, and NWP 31 is intended to
authorized regulated discharges
associated with maintenance activities
that can return the facility to the
maintenance baseline condition, but not
exceed them. As such, we believe that
the maintenance baseline must remain
fixed, and that it would be
inappropriate to raise or lower the bar
in connection with periodic reviews. If
the operator of the facility wished to
change the baseline, however, they
could apply to the Corps to do so and
appropriate mitigation would be
required at the time a new baseline is
established. We believe that the current
emergency procedures, along with the
revisions to NWP 31 related to
emergency maintenance, are sufficient
to provide necessary and appropriate
environmental consideration in
emergency situations. In light of this, we
do not agree that a new permit should
be created.
One commenter who opposed NWP
31 stated that they were concerned with
the requirement for mitigation stating
that if adverse impacts truly were
minimal, then mitigation should not be
needed.
After the establishment of the
maintenance baseline, we believe that
the adverse impacts attributable to
regulated discharges associated with
maintenance activities will, indeed, be
minimal, and mitigation will not be
required. However, if the loss of waters
of the U.S. in a particular reach of a
flood control facility has not previously
been mitigated, and a regulated
discharge associated with a needed
maintenance activity will result in such
loss, we believe that ‘‘once only’’
mitigation may be required as a
prerequisite to NWP 31 eligibility, and
that it should be imposed in
conjunction with the establishment of
the maintenance baseline.
One commenter questioned whether
BMPs would adequately protect areas
covered under this NWP from
environmental degradation and loss of
fish and wildlife habitat values.
BMPs are intended to minimize the
adverse effects of regulated activities.
With respect to NWP 31, the application
of BMPs in conjunction with the
maintenance baseline provisions is
expected to ensure that the effects of
activities authorized under this NWP
are no more than minimal. They are not
necessarily intended to prevent
environmental degradation and the loss
of habitat values that may be
attributable to factors that are not
caused by maintenance activities.
One commenter suggested redrafting
NWP 31 to clarify what is already
exempt under statute and regulation and
to narrow its application to debris
basins and retention/detention basins,
to the portion of constructed soft bottom
channels beyond the limits reasonably
related to maintenance of the sides of
the channel, to natural watercourses
that are part of a flood control facility,
and to any other part of an existing
flood control facility that is not a
structure or a constructed fill.
Since our intent in issuing this NWP
is to assure that its applicability is as
broad as possible within the constraints
of the NWP program, we do not agree
that is necessary to impose further
limitations that are not supported by
any clear indication that such
limitations are necessary to ensure that
the effects will be no more than
minimal.
One commenter contends that it
should not be mandated that the
baseline, with supporting mitigation, be
required after-the-fact whenever
emergency maintenance has occurred,
but instead, the actual facts associated
with the emergency related activities
should be considered. If no impacts, or
only minor impacts, occurred there
should be no need to undertake the
burdensome task of establishing a
baseline. He also suggests that the
imposition of administrative burdens to
address minor maintenance activities
essential to keeping flood control
structures in safe operating conditions,
cannot be justified and is not required
under Section 404.
Regardless of the circumstances, the
requirement to establish a maintenance
baseline is only imposed in conjunction
with the prospective use of NWP 31. If
the applicant is not willing or able to
establish a maintenance baseline, other
Corps permit processes can be applied
to consider authorizations for discharges
associated with maintenance activities,
but necessary mitigation would be
required in any case. Since neither
emergency circumstances nor the minor
nature of a particular activity is
exempted from regulation under the
law, we can not exempt them through
the NWP process. We believe that NWP
31, as proposed, is a reasonable and
prudent way to minimize the burdens
imposed on applicants, within the
constraints of applicable law and
regulation.
One commenter requested
clarification of terms such as
‘‘reasonably foreseeable discharges’’ and
‘‘routine maintenance’’ and ‘‘cyclic
maintenance’’, as well as a clarification
of the intent of this rule. He suggested
that the rules should provide for
permitting authorization for structures
constructed by agencies other than the
Corps, with maintenance activities
focused on restoration to a specific
baseline.
We believe that the intent of this
NWP, which is to authorize discharges
associated with maintenance activities
in flood control facilities, is adequately
indicated in the NWP, as written. We do
not believe that the terms ‘‘reasonably
foreseeable discharges,’’ ‘‘routine
maintenance’’ or ‘‘cyclic maintenance’’
need to be further defined, since the
applicability of NWP 31 does not
depend on any precise definition of
these terms. As designed, NWP 31 does
focus on the maintenance of a
predetermined baseline. However, we
believe that the inclusion, in this NWP,
of provisions to authorize the
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construction of structures in
jurisdictional areas is not warranted.
The authorization of structures is
limited to that provided by other
applicable NWPs and standard permits.
NWP 31 authorizes regulated discharges
associated with maintenance activities
for the purposes of section 404 of the
Clean Water Act and section 10 of the
Rivers and Harbors Act.
One commenter stated that riverine
systems that do not have constructed
channels cannot be considered flood
control structures and the activities
proposed by this NWP would result in
more than minimal impacts to the
environment. He suggests, if the NWP is
issued that, at least regionally, use of
this NWP should be prohibited in areas
that are not constructed channels.
As proposed, NWP 31 addresses the
maintenance of flood control facilities,
and not just structures. This NWP
authorizes discharges associated with
maintenance activities, but it does not
subject otherwise unregulated activities
or non-jurisdictional areas to the
requirements of applicable law. The
effects being addressed in connection
with this NWP are those that result from
regulated discharges in jurisdictional
areas. Upon the establishment of the
maintenance baseline, the effects of
subsequent maintenance-related
discharges that do not exceed that
baseline will, generally, be no more than
minimal.
One commenter indicated that the
NWP would result in a significant
workload increase for the Corps as most
projects did not have a baseline
prepared and as a result, a significant
quantity of one-time-only mitigation
might be identified when these first
baselines are determined. This
mitigation would have to be reviewed
and approved by the Corps. This
mitigation preparation and execution
would also put a financial and
manpower hardship on local sponsors.
He suggests a grandfather clause so that
the projects would qualify for NWP 31
with no requirement for baseline
determinations and/or supplemental
mitigation.
Since the Corps has no authority to
exempt discharges associated with
maintenance activities from regulation
under the law, or from corresponding
mitigation requirements, we can not
adopt a grandfather clause to waive
these requirements. Although we
recognize that the establishment of a
maintenance baseline, and the
imposition of related mitigation
requirements, will impose a significant
burden in some cases, we believe that
this one-time procedure is a viable way
of generally assuring that the effects of
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
subsequent maintenance-related
discharges are no more than minimal.
One commenter suggested that the
proposed NWP does not address
provisions of, and possible conflict
with, a recent proposed policy guidance
document for authorization of
maintenance activities through the
USACE Civil Works Department. He
suggests specific language providing
that revised as-builts and updated
environmental surveys be submitted
rather than an EIS to authorize
maintenance activities under the Civil
Works Program. The commenter would
like to see the processes for
modification of existing manuals to
NEPA and CWA standards be more
standardized and expedited.
This comment is apparently more
concerned with the specifics of
prospective policy guidance on the
maintenance of Corps flood control
facilities, than with NWP 31 as
proposed. We believe that any
consideration of issues related to the
effects of such policy guidance must be
deferred until such time as the policy
guidance is actually issued.
One commenter objected that the
requirements of the proposed NWP 31
extend jurisdiction to areas outside of
those regulated by the CWA, i.e., areas
which are the upland portions of
detention facilities and areas above the
normal high water level in stream
channels. If this approach is adopted,
the commenter suggests the extent of
information required is so detailed and
extensive as to make it unruly.
NWP 31 does not extend Clean Water
Act jurisdiction to areas or activities
that are not subject to that law.
Unregulated activities, and work in nonjurisdictional
areas, do not require
section 404 authorization under NWP
31 or any other Corps permit process.
The maintenance baseline provision of
NWP 31 does, by necessity, include
considerations of non-jurisdictional
areas, but this prerequisite only applies
in the context of NWP 31. Other permit
avenues, such as individual permit
procedures, remain available to consider
maintenance activities that require
section 404 authorization in
circumstances in which the
maintenance baseline information
requirements can not be accommodated
by the applicant.
One commenter requested that the
Corps revise the NWPs to eliminate the
use of the term ‘‘incidental fallback,’’ to
avoid any requirement for the case-bycase
demonstration of proposed
equipment use, and to avoid reliance on
the ‘‘rebuttable presumption’’ approach
to defining ‘‘discharge of dredged
material.’’
2051
We do not believe that this change is
necessary. Like all NWPs, NWP 31
authorizes only regulated discharges
and does not alter or enlarge program
jurisdiction. For example, incidental
discharges are addressed in the
regulations themselves at 33 CFR
323.2(d), and not the NWPs.
The nationwide permit is reissued as
proposed.
32. Completed Enforcement Actions
There were no changes proposed to this
nationwide permit. One commenter
suggested that NWP 32 should be
withdrawn as it is too broad for projects
to be considered ‘‘similar in nature’’, or
to be able to determine that the various
projects, when considered individually
or cumulatively, will result in minimal
adverse environmental effects, and that
it’s limitations are arbitrary and
capricious (e.g., 5 acres, 1 acre).
The Corps believes that the
description of the type of activities will
ensure that those activities authorized
by this NWP will be similar in nature.
Further, we believe that normally these
activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. Further, Division and
District Engineers will condition such
activities where necessary to ensure that
these activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively.
Another commenter recommended
changes to NWP 32 which would allow
restoration-based settlements for natural
resource injuries by adding the
following text: (iii) The terms of a final
court decision, consent decree,
settlement agreement, or non-judicial
settlement agreement resulting from a
natural resource damage claim brought
by a trustee or trustees for natural
resources (as defined by the National
Contingency Plan at 40 CFR subpart G)
under section 311 of the Clean Water
Act (CWA), section 107 of the
Comprehensive Environmental
Response, Compensation and Liability
Act (CERCLA or Superfund), section
312 of the National Marine Sanctuaries
Act (NMSA), section 1002 of the Oil
Pollution Act of 1990 (OPA), or the Park
System Resource Protection Act at 16
U.S.C. 19jj. For (i), (ii), and (iii) above,
the compliance is a condition of the
NWP itself.
The Corps agrees with the commenter.
These are Federal environmental legal
resolutions that we believe should
proceed without the delays caused by
processing individual permits that
would have no added value to
resolutions under these laws. However,
we have added a clarification that this
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2052 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
NWP only applies to the extent that a
Corps permit is required.
The nationwide permit is reissued
with the change discussed above.
33. Temporary Construction, Access
and Dewatering There were no changes
proposed to this nationwide permit.
One commenter suggested that NWP 33
should be withdrawn as activities
authorized under this permit cannot be
considered ‘‘similar in nature’’ and do
not result in temporary or minimal
adverse environmental effects to waters
of the U.S.
The Corps believes that the
description of the type of activities will
ensure that those activities authorized
by this NWP will be similar in nature.
Further, we believe that normally these
activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. Further, Division and
District Engineers will condition such
activities where necessary to ensure that
these activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively.
The nationwide permit is reissued
without change.
34. Cranberry Production Activities
There were no changes proposed to this
nationwide permit. One commenter
recommended that the Corps not reissue
this permit as it violates section 404(e)
of the CWA and the section 404(b)(1)
Guidelines. The commenter stated that
cranberry growers are allowed to ‘‘buy
down’’ impacts of conversion with
compensatory mitigation and that
compensatory mitigation is allowed to
take the form of preservation. The
commenter further stated that some
have indicated that cranberry
production can degrade water quality,
harm fisheries, and reduce water
quantity, each of which can
significantly, adversely affect the
aquatic environment.
The Corps believes that this NWP is
fully in compliance with section 404(e)
of the Clean Water Act. Further the
Corps believes that it is appropriate to
require mitigation for adverse effects of
a project and that the mitigation can be
considered when determining that the
adverse effects of a project are minimal.
The nationwide permit is reissued
without change.
35. Maintenance Dredging of Existing
Basins There were no changes proposed
to this nationwide permit. Two
commenters pointed out that there was
a change in the proposed NWP 35
which was not mentioned in the
Preamble. Another commenter
recommended withdrawing this permit
as it is not reasonable to conclude that
the cumulative impacts of all of the
activities authorized under this category
would not result in greater than
minimal adverse environmental effects.
The commenter stated it is reasonable to
conclude that this category of activities
would be incapable of being in
compliance with CZM programs.
The Corps agrees that there were
differences in the NWP from the 1996
NWP. However, the Corps did not
intend to propose a change to this NWP.
This was an error. This NWP will be
adopted as it has existed since 1996. We
continue to believe that the cumulative
effects of activities authorized by this
NWP will be no more than minimal
individually and cumulatively.
Furthermore, Corps districts or
divisions may add case-specific or
regional conditions where necessary to
further ensure that the adverse effects to
the aquatic environment are no more
than minimal, individually and
cumulatively. The states will review the
activities authorized by this NWP and
will agree or disagree that these
activities comply with their State CZM
programs. If the States disagree, then
activities that otherwise qualify for the
NWP will need to get an individual
State CZM concurrence before they can
proceed. If the state conditions its CZM
agreement, then those state CZM
condition will become conditions of the
NWP.
The nationwide permit is reissued
without change from the 1996 NWP.
36. Boat Ramps There were no
changes proposed to this nationwide
permit. One commenter suggested that
NWP 36 should be withdrawn as it is
unreasonable to conclude that the
cumulative impacts of all of the
activities authorized under this category
would not result in greater than
minimal adverse environmental effects.
The commenter expressed is doubt that
the adverse indirect/secondary impacts
of extracting the source materials and
subsequent degradation of water quality
associated with the use of the
construction of boat ramps has been
considered by the COE.
We continue to believe that the
cumulative effects of activities
authorized by this NWP will be no more
than minimal, individually and
cumulatively. Furthermore, Corps
districts or divisions may add casespecific
or regional conditions where
they believe necessary to further ensure
that the adverse effects to the aquatic
environment are no more than minimal,
individually and cumulatively. The
Corps will also consider adverse effects
at borrow areas where appropriate. It
should be noted that normally the
materials for the small boat ramps are
obtained from existing borrow areas or
sources that exist independently of the
small projects. Any individual water
quality issues will be addressed by the
states through water quality
certifications, NPDES permits or other
programs. In some cases the Corps may
directly address water quality issues
when appropriate.
The nationwide permit is reissued
without change.
37. Emergency Watershed Protection
and Rehabilitation The Corps proposed
to modify this NWP to include the
Department of the Interior (DOI),
Wildland Fire Management Burned
Area Emergency Stabilization and
Rehabilitation Program (DOI Manual,
part 620, Ch. 3) to this NWP. The
existing NWP only included the Natural
Resource Conservation Service (NRCS)
and U.S. Forest Service (USFS)
Programs for emergency watershed
protection and rehabilitation. The
Department of the Interior has similar
responsibilities as the Forest Service,
such as suppression of wildland fires
and the rehabilitation of the burned
land.
Several commenters suggested
additional changes to this NWP,
including limiting the time that the
NWP can be used after an emergency
situation, such as 2 years, and
broadening the NWP to cover State and
local emergency activities. One
commenter suggested that there were
abuses, such as converting waters of the
U.S. in the guise of restoration. Another
commenter recommended retaining the
word ‘‘exigency’’ in the permit language
until such time that NRCS completes
their final PEIS and modifies their
regulations accordingly to ensure that
the impacts from this category of NWP
will not exceed the minimal impact
threshold.
The Corps believes that the time
constraint and the expansion to include
State and local emergency activities
would need to be proposed before a
change could be adopted. Furthermore,
we believe that the suggested time
constraint is not needed and we are not
aware of any such abuses. The Corps
will monitor the use of this NWP and
will propose any changes that may be
necessary to ensure that any adverse
effects on the aquatic environment are
no more than minimal, individually or
cumulatively. The Corps believes that
the terminology used to describe the
NRCS emergency situations will not
result in materially different activities
that are now covered by the NWP.
Should there be a change the Corps can
modify the NWP accordingly.
One commenter suggested a
grammatical change, removing the
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‘‘Work done or funded by’’ from the
beginning of subsections ‘‘b’’ and ‘‘c’’ in
order to be consistent with subsection
‘‘a’’. We concur with this comment and
have accordingly changed the NWP.
The nationwide permit is reissued as
proposed and with the change described
above.
38. Cleanup of Hazardous and Toxic
Waste There were no changes proposed
to this nationwide permit. One
commenter indicated that this NWP
covers many different activities that are
not similar activities. The commenter
added that the NWP also lacks any
indication of a time constraint that
would constitute an ‘‘emergency’’
response, which may have occurred up
to five years later in some cases. The
commenter also stated that there have
been adverse effects that occur under
the guise of so-called ‘‘Restoration’’.
The Corps believes that the
description of the type of activities will
ensure that those categories of activities
authorized by this NWP will be similar
in nature. Further, we believe that
normally these activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. In addition, Division
and District Engineers will condition
such activities where necessary to
ensure that these activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. The addition of a
time constraint would need to be
proposed before a change could be
adopted. Furthermore, we believe that a
time constraint is not needed and we are
not aware of any such abuses. The Corps
will monitor the use of this NWP and
will propose any changes that may be
necessary to ensure that any adverse
effects on the aquatic environment are
no more than minimal, individually or
cumulatively. The nationwide permit is
reissued without change.
39. Residential, Commercial, and
Institutional Developments The Corps
proposed these changes to this NWP: (1)
Simplify the subdivision provision,
without substantively changing its
effects, (2) delete the one-cfs restriction
on stream impacts, and (3) allow a
project specific waiver of the 300 linearfeet
prohibition following a written
determination by the Corps that any
adverse environmental effects would be
no more than minimal.
Simplify the Subdivision Provision
Several commenters supported
simplifying the subdivision provision
while several others indicated that the
existing subdivision provision should
remain. Several commenters expressed
concerns about repeated use of the NWP
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
within a subdivision and supported
applying the aggregate of all fills in
waters of the U.S. to the 1 ⁄2 acre
threshold. Some commenters did not
want the restriction to apply to future
individual lot owners while others
wanted to ensure that it did. One
commenter asked whether the new
subdivision language would apply to all
subdivisions or would some be
grandfathered. Another expressed
concern about Corps workload and
record keeping impacts due to
grandfathered subdivision dates. One
commenter requested that individual lot
owners within a subdivision be
exempted from the subdivision
provision. Another commenter
indicated that the 1 ⁄10 acre notification
requirement should be retained in the
subdivision provision.
The Corps continues to believe that to
make the subdivision provision
effective, it needs to be simplified. The
subdivision provision will apply to all,
but only to, residential subdivisions,
regardless of when they were built. This
will create some additional workload in
older residential subdivisions not yet
completed. However, in appropriate
cases Corps divisions and districts may
consider regional general permits or
abbreviated permit processes. Also
Corps divisions and districts may add
regional conditions to require
notification or other restrictions when
appropriate. The subdivision provision
will apply to all lots within a residential
subdivision. Furthermore, when
authorizing future residential
subdivisions the Corps will consider the
status of lots that maybe filled in the
future and add them to the total for
determining compliance with the
aggregate 1 ⁄2 acre threshold. The
simplified subdivision provision will
simplify Corps record keeping and
workload. But more importantly it will
further compliance with this condition
and thus provide additional
environmental protection while
allowing those subdivisions with
minimal impact to proceed without
unnecessary costs and delays.
Delete the One-cfs Restriction on
Stream Impacts: Many commenters
objected to the removal of the one cfs
restriction on stream impacts and
requested that it be restored to ensure
that developments are not located on
flood prone property without full
individual permit review, including
public notice and comment. One
commenter recommended a preferred
modification involving retaining the
provision and proposed specific
conditions under which this provision
might be waived e.g. severe degradation.
Another commenter was concerned that
2053
removal of this provision could
jeopardize streams considered degraded
by the Corps when that degradation
might be eliminated or reduced through
simple changes in management
practices. Two commenters supported
the elimination of the one cfs restriction
agreeing that it was inconsistent with
the intent of the NWP, but one of them
further went on to say that the
prohibition is unnecessary, confusing
and results in many minimal impact
projects having to undergo the
individual permit process, and that the
condition is arbitrary as there is no data
to support the application of this
condition. One commenter stated that
removing the one cfs prohibition would
allow a developer to completely remove
most functions provided by a stream,
however, this much impact should not
be authorized by the Corps.
The Corps agrees with those
commenters that the one cfs restriction
is unnecessarily prohibitive. There is a
need on occasion to have some
unavoidable elements of relocation and
channelization below the one cfs point
on a stream for a project covered by
NWP 39. In these cases there would be
no value added to the environment by
processing an individual permit.
Further, the added complication and
costs of making a determination of
another point on a stream in addition to
the five cfs point, unnecessarily adds a
burden to the Corps and the applicant.
We further believe that there are several
other general conditions that protect
important stream values; such as
General Condition 21 Management of
Waters Flows, General Condition 20
Spawning Areas, General Condition 17
Shellfish beds and General Condition 9
Water Quality to name a few.
300 Linear Foot Prohibition with a
Waiver: This issue is discussed
elsewhere in this preamble.
Compliance with 404(e): Several
commenters indicated that the NWP
was not in compliance with Section
404(e). One commenter said that since
a residential development is not a water
dependent activity, it is presumed that
alternative locations are available for
these activities.
We believe that the minor nature of
these types and categories of activities
will ensure that they are similar in
nature. We further believe that the
conditions and specified thresholds will
ensure that the activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. The thresholds have
been developed and greatly reduce from
10 acres in 1984 down to 1 ⁄2 acre in
2000, based on years of experience and
were developed to consider most effects
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2054 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
that could occurs in many areas of the
country. However, Division and District
Engineers will condition such activities
where necessary to ensure that those
activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. A case specific off-site
alternatives analysis is not required for
activities with minimal adverse effects
that are authorized by NWPs, as
provided for the Clean Water Act
section 404(b)(1) Guidelines. However,
on-site avoidance and minimization is
required by General Condition 19.
Other Comments
Many commenters opposed the
preamble discussion regarding the
phasing of subdivisions. The Corps has
defined the concept of single and
complete projects for the purpose of
authorizing activities by nationwide
permits. This term is defined in Corps
regulations at 33 CFR 330.2( i). The
preamble discussion states how the
Corps is implementing the regulations.
The Corps is not proposing to change
the nationwide permit regulations at
this time.
Two commenters requested
conditions requiring a pre-construction
notification for all wetland impacts to
allow the Corps to determine the
appropriateness of using the NWP for
wetlands impacts. One of those
commenters recommended that
permittees be required to verify
compliance with the NWP general
conditions. A pre-construction
notification is a requirement for impacts
to greater than 1 ⁄10 acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters. This
NWP can not authorize activities in
tidal waters of the U.S. and not in nontidal
wetlands adjacent to tidal waters
and not for permanent above grade fills
below the headwaters in the 100 year
flood plain as provided for in general
condition 26. We believe that this will
ensure that the impacts will be no more
than minimal. Furthermore, Corps
divisions and districts will add regional
conditions as appropriate to further
ensure that cumulative effects will be no
more than minimal. The Corps believes
that it would be an unnecessary and
unreasonable burden on an applicant to
demonstrate compliance with all
conditions. The Corps districts will
request verification of compliance for
those conditions that the Corps believes
are applicable to a project but for which
the applicant did not supply sufficient
information.
This NWP is reissued as proposed
except with the modified 300 linear foot
waiver discussed below.
40. Agricultural Activities. The Corps
proposed to modify this NWP by
providing a waiver for the 300 linear
foot limit on relocating existing
serviceable drainage ditches constructed
in non-tidal streams. Several
commenters opposed this NWP, with
some suggesting that it be withdrawn.
Some commenters suggested additional
restrictions to the NWP. These
restrictions included changing the
maximum acreage threshold (e.g. 1% of
the farm tract, .3 acres, 1 ⁄2 acre for the
entire farm holding or all the tracts
under one ownership, 1 ⁄4 acres, and 1 ⁄10
acre); prohibiting conversion of waters
of the US. to agricultural production;
requiring that all impacts must be fully
mitigated; and requiring that the Corps
must review and approve all mitigation.
Additional suggestions included
requiring a pre-construction notification
to include a hydrologist report
documenting the extent of both primary
and secondary impacts; limiting the
linear footage of fill in all streams to 250
feet; prohibiting the discharge of fill into
playas, prairie potholes, and vernal
pools, withdrawing the provision that
states that ‘‘discharges of dredged or fill
materials into waters of the US.
associated with the construction of
compensatory mitigation are authorized
by the NWP, but are not calculated in
the acreage loss of waters of the US’;
and requiring that the Corps make its
own minimal effects determination
consistent with section 404 of the Clean
Water Act.
Many of these suggestions would
require that the Corps publish proposed
changes to this NWP for public
comments. The Corps can consider and
propose any such appropriate changes
after this NWP is reissued. However, at
this time we believe that the threshold
that we established in 1996 continues to
be appropriate for this NWP. The Corps
will review appropriate activities for
compliance with this NWP including
requiring appropriate mitigation and
ensuring that the authorized activities
will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. Further,
we also believe that the PCN
requirements are adequate to allow the
Corps to make such determinations. We
also believe that the PCN requirements
will ensure that any jurisdictional
activities in playas, prairie potholes,
and vernal pools will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. However, for activities
authorized by paragraph a. of this NWP,
we will rely on NRCS to make those
decisions. We believe that this is
adequate and appropriate considering
NRCS’s responsibilities under the
Swampbuster provisions of the Farm
Bill. The threshold limits for all NWPs
are based on the amount of impacts to
waters of the US of the proposed
activity. We do not allow that limitation
to be modified by considering
mitigation to decrease that number.
However, we do consider the net effects
including the project effects, mitigation
and impacts caused by the mitigation in
deciding whether the activity will have
no more than minimal adverse effects
on the aquatic environment,
individually and cumulatively.
Most commenters stated that the
activities authorized under this permit
would pose a serious threat of
contamination to wetlands and nearby
streams from animal waste and should
be withdrawn.
We understand these concerns.
However, these issues are normally
considered and will be addressed as
part of the states’ Section 401 water
quality certification or by a Section 402
permit.
Most commenters stated that the
scope of this permit violates the
minimal impact standards as it
unnecessarily exceeds the 1 ⁄4 acre limit
for filling wetlands under the ‘‘minimal
effects’’ provisions of the Farm Bill, and,
as such, should be withdrawn.
The Corps disagrees. Nothing in this
NWP will override the provisions of the
Farm Bill. Where an activity is covered
by the Farm Bill, it must meet the
requirements of the Farm Bill as well as
the requirements of the Corps NWPs.
The NRCS is responsible for
determining compliance with the Farm
Bill, while the Corps is responsible for
determining compliance with the NWP.
One commenter recommended
withdrawing this NWP as the activities
authorized by it are not water
dependent activities, are very dissimilar
in nature and result in major adverse
impacts to the human environment.
Additionally, the impact thresholds are
arbitrary and capricious.
We believe that the minor nature of
these types and categories of activities
will ensure that they are similar in
nature. We further believe that the
conditions and specified thresholds will
ensure that the activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. The thresholds have
been developed based on years of
experience and were developed to
consider most effects that could occurs
in many areas of the country. However,
Division and District engineers will
condition such activities where
necessary to ensure that those activities
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will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. This
nationwide permit is reissued with a
modified 300 linear foot waiver as
discussed below.
41. Reshaping Existing Drainage
Ditches. There were no changes
proposed to this nationwide permit.
Three commenters said that this NWP
should not be reissued. One commenter
stated that there is no demonstrated
need for this NWP. Three commenters
objected to the reissuance of the NWP
because there are no acreage or linear
foot limits. One of these commenters
suggested adding a 500 linear foot limit
and a 250 linear foot pre-construction
notification threshold. One commenter
said that the sidecasting of drainage
ditch soils may have significant adverse
impacts on the hydrologic regimes of
adjacent wetlands. Another commenter
indicated that impacts due to temporary
sidecasting of excavated material result
in more than minimal adverse effects on
the human environment.
This NWP authorizes the reshaping of
existing, serviceable drainage ditches in
a manner that benefits the aquatic
environment. Without this NWP, project
proponents would likely have to obtain
an individual permit to reshape
drainage ditches in a manner that helps
improve water quality in a watershed.
Requiring an individual permit for this
activity would discourage landowners
from conducting this activity. We do not
agree that acreage or linear limits are
necessary because of the nature of the
authorized activity. The preconstruction
notification threshold of
500 linear feet will allow district
engineers to review ditch reshaping
activities that may result in more than
minimal adverse effects to the aquatic
environment. In response to a preconstruction
notification, a district
engineer can require special conditions
to ensure that adverse effects on the
aquatic environment are minimal or
exercise discretionary authority to
require an individual permit for the
work.
One commenter asserted that this
NWP will encourage the drainage,
degradation, and further loss of waters
and wetlands. One commenter
recommended revocation of this NWP
within ‘‘Tulloch’’ ditches because the
permit provides additional
opportunities for developers to fill
wetlands with little oversight by the
Federal government. This commenter
also suggested modifying NWP 41 to
require planting of native trees and
shrubs on ditch banks after construction
to reduce the potential for water quality
degradation.
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
This NWP authorizes only temporary
sidecasting of excavated material into
waters of the United States. Therefore,
activities authorized by this NWP will
not have significant, permanent impacts
on the hydrology of adjacent wetlands
or the human environment. This NWP
does not encourage the loss of waters
and wetlands because it is limited to
activities in existing, serviceable
drainage ditches and reshaping
activities cannot increase the area
drained by the ditches. We do not agree
that it is necessary to require planting of
native trees and shrubs after
construction. Drainage ditches require
periodic maintenance to remove
accumulated sediments and any trees
and shrubs planted next to drainage
ditches would have to be removed
during maintenance activities.
One commenter said that if this NWP
is used to authorize activities in waters
that support salmonids, then a regional
condition should be added to the NWP.
The recommended regional condition
would require delineations of pools and
riffles and require that the reshaping
activity be conducted in a manner that
does not reduce the volume and surface
area of pools or other suitable habitat.
Division engineers can add regional
conditions to this NWP to address
concerns for salmonid species.
One commenter objected to the
reissuance of this NWP, stating that it
does not define the term ‘‘drainage
ditch’’ narrowly, it does not require an
applicant to prove that the proposed
ditch reshaping activity will not
increase the area drained by the ditch,
it does not require mitigation when
work is designed to improve water
quality. This commenter said that the
NWP should clarify that pre-existing
waterways are not drainage ditches,
even if they have been channelized.
This commenter recommended adding
the following text to NWP 41: ‘‘This
general permit is limited to reshaping
that would restore more natural stream
characteristics by activities similar to
increasing the area of riparian
vegetation through re-grading or by
recreating stream meanders.’’ Other
suggestions by this commenter include
requiring applicants to obtain NRCS
minimal effects determinations and best
management practices certifications and
requiring mitigation for adverse impacts
to aquatic resources authorized by this
NWP.
This NWP does not define the term
‘‘drainage ditch’’. District engineers can
determine, on a case-by-case basis, what
constitutes a ‘‘drainage ditch’’. The
Corps has modified the language of this
permit slightly to clarify that drainage
ditches constructed in uplands are
2055
generally not waters of the US,
consistent with earlier guidance on this
issue (FR 51:219, p 41217). We do not
believe that it is necessary to require
compensatory mitigation for activities
authorized by this NWP, since the
activities authorized by NWP 41 are
designed to improve water quality. We
do not agree that the recommended text
in the previous paragraph should be
added to NWP 41 because this NWP
authorizes the reshaping of existing
drainage ditches, not stream restoration
activities. Requiring applicants to obtain
minimal effects determinations and best
management practices certifications
from NRCS is unnecessary, since this
NWP is limited to the reshaping of
existing, currently serviceable drainage
ditches that have minimal individual
and cumulative adverse effects on the
aquatic environment. This nationwide
permit is reissued without change.
42. Recreational Facilities In the
August 9, 2001, Federal Register notice,
we proposed to modify this NWP by
allowing on a case-by-case basis, a
waiver of the prohibition on impacts
exceeding 300 linear feet of stream bed.
In addition, we requested suggestions
regarding criteria, standards, and best
management practices that should be
applied to this NWP for recreational
facilities to ensure that adverse effects
on the aquatic environment are
minimal.
One commenter requested that the
Corps broaden the applicability of this
NWP to include improvements to ski
facilities, because ski area expansion is
too narrow. This commenter also
expressed support for expanding the
scope of this NWP to include the
construction of hotels and restaurants,
because these facilities are important
components of skiing facilities. One
commenter supported the use of this
NWP to authorize the construction of
hiking, biking, and horse trails.
This NWP can be used to authorize
the construction of certain
improvements to ski facilities, provided
those improvements comply with the
terms and conditions of the NWP. We
do not agree that NWP 42 should be
expanded to include the construction of
hotels and restaurants. These facilities
may be authorized by other NWPs, such
as NWP 39, which authorizes discharges
of dredged or fill material into non-tidal
waters of the United States to construct
commercial buildings and attendant
features, or other types of Corps permits.
Two commenters said that this NWP
should be withdrawn. One of these
commenters said that the NWP
authorizes activities that are not similar
in nature that result in more than
minimal adverse impacts to the aquatic
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2056 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
environment. Six commenters asserted
that this NWP should not authorize the
construction of golf courses or ski areas.
One commenter objected to the
authorization of these facilities under
NWP 42 because they are unlikely to
substantially deviate from natural
landscape contours. Another commenter
said that the authorization of golf
courses and ski areas discourages
developers from looking for alternatives
that have less impact on the aquatic
environment. One commenter objected
to the inclusion of campgrounds in the
list of activities that may be authorized
by this NWP. Four commenters stated
that support facilities, such as buildings,
stables, parking lots, and roads should
not be authorized by this NWP. One
commenter asked if this NWP can be
used to authorize the construction of
recreational ponds.
This NWP authorizes activities that
are similar in nature because it is
limited to discharges of dredged or fill
material into waters of the United States
to construct recreation facilities. The
terms and conditions of the NWP, with
the case-by-case review of those
activities that require pre-construction
notification to district engineers, will
ensure that the activities authorized by
this NWP result in minimal adverse
effects on the aquatic environment. Preconstruction
notification is required for
discharges of dredged or fill material
resulting in the loss of greater than 1 ⁄10
acre on non-tidal waters of the United
States or the loss of greater than 300
linear feet of perennial and intermittent
streams. The pre-construction
notification process allows district
engineers to review those activities that
may result in more than minimal
adverse effects to the aquatic
environment. In response to a preconstruction
notification, a district
engineer can require special conditions
to ensure that adverse effects on the
aquatic environment are minimal or
exercise discretionary authority to
require an individual permit for the
work.
Golf courses and expanded ski
facilities can be constructed so that they
are integrated into the natural
landscape, without substantial amounts
of grading and filling. This NWP
authorizes only the expansion of
existing ski areas. Paragraph (a) of
General Condition 19 requires
permittees to avoid and minimize
adverse effects to waters of the United
States on-site to the maximum extent
practicable. We do not agree that
campgrounds should be excluded from
this NWP. We believe that the
construction of small support facilities,
such as storage buildings and stables,
are necessary attendant features for the
operation of the recreational facilities
authorized by this NWP. This NWP may
authorize the construction of small
recreational ponds, provided the
construction of those impoundments
does not substantially change natural
landscape contours.
One commenter said that this NWP
should have a 1 ⁄3 acre limit, including a
250 linear foot limit for stream impacts.
Another commenter said that the 1 ⁄2 acre
limit was too high. One commenter
stated that the pre-construction
notification threshold should be 1 ⁄3 acre
or 1 ⁄4 acre, instead of 1 ⁄10 acre. A
commenter said that all activities
authorized by this NWP should require
pre-construction notification, and that
this NWP should not authorize activities
in special aquatic sites. One commenter
recommended replacing the word ‘‘loss’’
in the text of the NWP with the phrase
‘‘fill or impact (including temporary and
permanent impacts)’’.
We do not agree that the acreage limit
should be reduced to 1 ⁄3 acre, or that
there should be a 250 linear foot limit
for stream impacts. In addition, we
believe that the 1 ⁄10 acre preconstruction
notification threshold
adequately ensures that all activities
that could result in more than minimal
adverse effects on the aquatic
environment are reviewed by district
engineers on a case-by-case basis. We do
not agree that it is necessary to require
pre-construction notification for all
activities authorized by this NWP or to
prohibit use of this NWP in special
aquatic sites. Where there are concerns
that this NWP may authorize activities
with more than minimal adverse effects
on the aquatic environment, division
engineers can regionally condition this
NWP to reduce the acreage limit or
require notification for all activities. It is
not necessary to replace the word ‘‘loss’’
with the phrase ‘‘fill or impact
(including temporary and permanent
impacts)’’ because the word ‘‘loss’’
addresses waters of the United States
adversely affected by filling, flooding,
excavation, or drainage.
Several commenters objected to
allowing case-by-case waivers to the 300
linear foot limit for losses of stream
beds. One of these commenters said that
small and ephemeral streams are
important for protecting water quality,
preventing flooding, and providing
habitat for many species. Another
commenter said that the waiver should
not be granted until the district engineer
solicits comments from the other
Federal and state resource and
regulatory agencies.
This waiver is discussed in more
detail below in this Federal Register
notice.
One commenter stated that the
definition of ‘‘recreational facilities’’ is
too broad and the NWP does not
adequately address impacts at the
project site and downstream. One
commenter said that the Corps should
not attempt to establish criteria,
standards, or best management practices
because the Corps has already
determined that the NWP authorizes
only activities with minimal adverse
environmental effects. A commenter
suggested that the Corps require best
management practices for storm water
management, limits on the clearing of
vegetation for project construction, the
establishment and maintenance of 100
foot wide forested buffers adjacent to
aquatic resources, and limits on the use
of impervious surfaces for trails and
walkways. One commenter requested
that the NWP contain more flexibility to
allow limited use of impervious surfaces
to accomplish complete accessibility for
the physically challenged on multi-use
trails.
We believe that the definition of
‘‘recreational facilities’’ used in this
NWP, in addition to the terms and
conditions of NWP 42 and the NWP
general conditions, are sufficient to
ensure that the NWP authorizes only
activities with minimal adverse effects
on the aquatic environment. The August
9, 2001, Federal Register notice sought
public input on ways to continue to
ensure that this NWP authorizes
minimal impact recreational facilities.
Compliance with General Condition 9,
Water Quality, may require storm water
management for a particular recreational
facility. The maintenance and
establishment of vegetated buffers may
be required by district engineers as
compensatory mitigation. Specific limits
on the use of impervious surfaces are
determined by district engineers on a
case-by-case basis in response to a preconstruction
notification. The
construction of multi-use trails that
provide accessibility for physically
challenged individuals can be
authorized by this NWP.
One commenter said that regional
conditions should be adopted to prevent
the cumulative adverse impacts to wood
recruitment in waters inhabited by
salmon. This commenter also suggested
that regional conditions should be
adopted to prohibit the construction of
trails or paths along the tops of banks
unless the facility is constructed so that
there is no loss of riparian vegetation
and any removed vegetation is allowed
to grow back. This commenter also said
that this NWP should not be stacked
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with NWP 13 because these two NWPs
exert synergistic significant adverse
impacts on wood recruitment.
Division engineers can impose
regional conditions on this NWP to
address cumulative impacts, including
impacts to salmon habitat. We do not
agree that there should be a restriction
prohibiting the use of NWP 13 with this
NWP for a single and complete project.
Bank stabilization may be required to
maintain the integrity and safety of a
recreational facility.
The nationwide permit is reissued
with a modified 300 linear foot waiver
as discussed below.
43. Stormwater Management Facilities
In the August 9, 2001, Federal Register
notice, we proposed to modify this NWP
by allowing on a case-by-case basis, a
waiver of the prohibition on impacts
exceeding 300 linear feet of stream bed.
There were no other changes proposed
to this nationwide permit.
Three commenters stated that this
NWP should be withdrawn. One of
these commenters said that NWP 43 was
unnecessary because the construction of
stormwater management (SWM)
facilities is authorized by other NWPs.
Two commenters stated that new SWM
facilities should not be constructed in
streams, including ephemeral and
intermittent streams. Another
commenter said that SWM facilities are
not water dependent, SWM facilities
should not be constructed in waters of
the United States, and the activities
authorized by this NWP result in more
than minimal adverse effects on the
human environment. One commenter
said that this NWP should not authorize
activities in special aquatic sites.
Although other NWPs, such as NWP
39, can authorize the construction of
SWM facilities, certain types of SWM
facilities, such as regional SWM ponds
that are not associated with a particular
development, may not be authorized by
other NWPs. In some cases, the
construction of SWM facilities in waters
of the United States may be necessary
and may provide more protection to the
aquatic environment. Division engineers
can regionally condition this NWP to
prohibit its use in high value waters. For
those activities that require notification,
district engineers can add case-specific
conditions to ensure that the adverse
effects on the aquatic environment are
minimal or exercise discretionary
authority and require individual permits
for activities with more than minimal
adverse effects.
One commenter said that the acreage
limit for this NWP should be 3 acres and
another commenter suggested a 1 ⁄4 acre
limit for the construction of new
facilities. One commenter requested a
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
higher acreage limit for activities in
non-perennial streams, stating that the
pre-construction notification process
would provide the Corps the
opportunity to ensure that project
impacts are not more than minimal.
We believe that the 1 ⁄2 acre limit for
the construction of new SWM facilities
will ensure that this NWP authorizes
activities with minimal adverse effects
on the aquatic environment. We do not
agree that there should be a higher
acreage limit for discharges of dredged
or fill material into intermittent and
ephemeral streams.
One commenter stated that
coordination with Federal and state
resource and regulatory agencies should
be conducted before the district
engineer issues a waiver of the 300
linear foot limit. Another commenter
supported waiving the 300 foot limit,
but recommended that the Corps clarify
that the presence of an ordinary high
water mark is required when
determining that a waterbody is a water
of the United States.
We have adopted a modified
condition allowing district engineers to
issue case-by-case waivers to the 300
linear foot limit for losses of
intermittent stream beds, for activities
that result in no more than minimal
adverse effects on the aquatic
environment. This modified waiver is
discussed in more detail in another
section of this Federal Register notice.
One commenter recommended that
the NWP authorize normal operations
and maintenance activities so that the
multi-objective aspects, including flood
mitigation, of the project can be met and
the community can realize project
benefits. A commenter recommended
adding a condition that restricts this
NWP to the maintenance of existing
SWM facilities. Another commenter
said that the NWP should include a
condition requiring maintenance of base
flows during periods of low flow, to
protect the downstream environment.
This commenter also said that the NWP
should be conditioned to prohibit the
construction of concrete or stone-lined
channels. One commenter asserted that
the text of NWP 43 should clearly state
that non-jurisdictional activities are not
included in the acreage loss of waters of
the United States.
NWP 43 authorizes the maintenance
of existing, currently serviceable SWM
facilities. Regular maintenance of SWM
facilities is an important mechanism for
ensuring effective stormwater
management, including flood control.
We do not agree that this NWP should
be limited to maintenance activities.
Paragraph (g) of NWP 43 refers to
General Condition 21, Management of
2057
Water Flows, which requires the
maintenance of pre-construction
downstream flows. We do not agree that
it is necessary to condition the NWP to
prohibit the construction of concrete or
stone-lined channels. Division engineers
can regionally condition this NWP to
prohibit these types of activities. During
the review of a pre-construction
notification, district engineers can
exercise discretionary authority if the
proposed work involves the
construction of a concrete or stone-lined
channel and the proposed work will
result in more than minimal adverse
effects on the aquatic environment. We
do not believe it is necessary to
explicitly state in the text of the NWP
that non-jurisdictional activities are not
included in the acreage loss of waters of
the United States, although this is true
for all NWPs generally.
One commenter said that areas within
SWM facilities should not be considered
as compensatory mitigation if regular
maintenance is required. Another
commenter said that this NWP should
not authorize the use of SWM facilities
as compensatory mitigation sites.
Areas of a SWM facility that are not
subject to regular maintenance can be
used as compensatory mitigation sites
(see paragraph (e)(3)).
The nationwide permit is reissued
with a modified 300 linear foot waiver
as discussed below.
44. Mining Activities. There were no
changes proposed to this nationwide
permit. Many commenters said that this
NWP should be withdrawn. Several of
these commenters believe that the
activities authorized by this NWP result
in more than minimal adverse effects on
the aquatic environment, including
water quality, navigation, and aquatic
habitat. Some commenters said that
these activities should be reviewed
under the standard permit process.
This NWP authorizes mining
activities that have no more than
minimal individual and cumulative
adverse effects on the aquatic
environment. The terms and conditions
of this NWP, including the NWP general
conditions, will ensure that these
mining activities will have no more than
minimal adverse environmental effects.
For example, mining activities in
navigable waters must comply with
General Condition 1, Navigation. All
activities authorized by this NWP
require notification to the district
engineer prior to commencement of
mining activities. The pre-construction
notification process allows district
engineers to review mining activities on
a case-by-case basis, to ensure that the
proposed work has no more than
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2058 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
minimal adverse effects on the aquatic
environment. In response to a preconstruction
notification, the district
engineer can add special conditions to
the NWP authorization to ensure that
the adverse effects on the aquatic
environment are no more than minimal
or exercise discretionary authority to
require an individual permit for the
work.
One commenter stated that this NWP
does not satisfy the ‘‘similar in nature’’
requirement for general permits,
including NWPs. Another commenter
asserted that the activities authorized by
this NWP are not water dependent and
that alternatives are available.
This NWP complies with the ‘‘similar
in nature’’ requirement of general
permits because it is limited to aggregate
and hard rock/mineral mining activities.
The water dependency test in the
Section 404(b)(1) guidelines does not
require each activity in waters of the
United States to be water dependent to
fulfill its basic project purpose. General
Condition 19, Mitigation, requires
permittees to avoid and minimize
adverse effects to waters of the United
States to the maximum extent
practicable on the project site. The
NWPs do not require an analysis of offsite
alternatives. As long as the mining
activity results in no more than minimal
adverse effects to the aquatic
environment and complies with all
terms and conditions, the activity can be
authorized by NWP.
One commenter said that this NWP
should be withdrawn because it is of
limited use to the aggregate mining
industry. A commenter objected to this
NWP, stating that the Corps has not
demonstrated why the NWP should be
limited to activities in isolated waters
and wetlands adjacent to headwaters.
One commenter asserted that the 1 ⁄2 acre
limit for this NWP is too restrictive
because of the extensive preconstruction
notification and mitigation
requirements. This commenter also said
that the Corps cannot condition this
NWP to prohibit beneficiation and
mineral processing within 200 feet of an
open waterbody. Another commenter
recommended increasing the acreage
limit to three acres for impacts to nonwetland
waters and allowing district
engineers to waive the 1 cubic foot per
second limit on a case-by-case basis.
The terms and conditions of this
NWP, including the 1 ⁄2 acre limit and
the scope of applicable waters, are
intended to ensure that activities
authorized by this NWP result in no
more than minimal adverse effects to
the aquatic environment, individually
and cumulatively. We have the
authority to condition this NWP to
prohibit beneficiation and mineral
processing within 200 feet of an open
waterbody, if such a restriction is
necessary to ensure that the NWP
authorizes only activities with no more
than minimal adverse effects on the
aquatic environment. We do not agree
that a waiver for the 1 cubic foot per
second limit for aggregate mining in
headwater streams would be
appropriate. That restriction is
necessary to ensure that the NWP does
not authorize aggregate mining activities
with more than minimal adverse effects
to headwater streams. Aggregate and
hard rock/mineral mining activities that
do not qualify for authorization under
this NWP can be authorized by
individual permits.
Two commenters stated that this NWP
must be reevaluated in light of the Solid
Waste Agency of Northern Cook County
v. United States Army Corps of
Engineers et al. (U.S. Supreme Court No.
99–1178) (SWANCC). One commenter
said that many mining operations do not
involve discharges of dredged or fill
material into waters of the United States
and the Corps should reassess areas
where it has exceeded its statutory
authority. One commenter
recommended modifying this NWP to
clarify that non-jurisdictional
excavation activities channelward of the
ordinary high water mark and activities
outside of the ordinary high water mark
and adjacent wetlands do not require a
Section 404 permit.
The Solid Waste Agency of Northern
Cook County v. United States Army
Corps of Engineers et al. decision
related to the scope of CWA jurisdiction
over nonnavigable isolated intrastate
waters. Aggregate and hard rock/mineral
mining activities may occur in
jurisdictional waters and thus could be
authorized by this NWP. Activities that
occur in non-jurisdictional waters, as
determined by applicable regulations
and case law (including SWANCC) do
not require a section 404 permit. The
nationwide permit is reissued without
change.
Project Specific Wavier of 300-Linear
Feet Prohibition in NWPs 39, 40, 42,
and 43
In the August 9, 2001, Federal
Register notice, the Corps proposed to
allow a waiver, on a case-by-case basis,
of the prohibitions in NWPs 39, 40, 42,
and 43 against discharges resulting in
the loss of greater than 300 linear feet
of stream bed. The waiver could be
issued only after the district engineer
reviewed a pre-construction notification
for the proposed work and determined
that the activity would result in no more
than minimal adverse effects on the
aquatic environment.
Several commenters stated that the
absolute 300 linear foot limit on the
amount of stream that can be filled
under these NWPs should be retained.
They were concerned that the proposed
waiver would lead to severe stream
destruction from the construction of
developments, agricultural activities,
and other activities and said that the
existing, strong linear limits on stream
bed impacts should be retained. Some of
these commenters added that the 300
linear foot limit provides predictability
and certainty to the regulated
community and state permitting
agencies as well as reducing workload
for Corps staff. A few commenters stated
that the proposed waiver would lead to
many variations in the way permit
decisions are made between Corps
districts and even between Corps project
managers within the same district who
use their own definitions of minimal
impacts. One of these commenters
indicated that NWP verification requests
should be simple to review and
approve, with clear thresholds and
consistency in the review process.
Another commenter stated that the
waiver would require the Corps to rely
on the expertise of applicants to provide
information and allow developers to
excavate or fill as much as one mile of
a stream under a general permit when
the intent of NWP program is to
authorize only those activities with
minimal adverse impacts. Numerous
commenters supported the proposed
waiver. Some of these commenters said
that the waiver would allow greater
flexibility and efficiency in permit
processing and would eliminate the
need for individual permits to fill more
than 300 linear feet of stream bed where
the impacts are minimal.
The waiver adds flexibility to the
Corps permit process, by allowing
district engineers to efficiently authorize
activities that have minimal adverse
effects on the aquatic environment.
Requiring individual permits for
minimal impact activities that would
otherwise qualify for authorization
under NWPs 39, 40, 42, and 43 because
they involve the loss of greater than 300
linear feet of stream bed would increase
the Corps workload, with no added
environmental benefits. Since aquatic
resource functions and values vary
across the United States, we recognize
that there will be differences in the
implementation of the waiver. However,
we do not agree that the waiver makes
the protection provided by the NWP
process less consistent. District
engineers will use their knowledge of
the local aquatic environment, as well
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as the information submitted in preconstruction
notifications, to make their
case-by-case determinations whether the
waiver is applicable for a particular
activity.
Some commenters emphasized the
functions and values of the small
headwater streams in the overall health
of the aquatic environment and stated
that filling these streams will result in
significant impacts. These commenters
stated that the cumulative loss of
intermittent streams and the
downstream impacts of piping these
streams can cause significant
irreversible environmental and
ecological losses. Another commenter
added that small streams usually exist
within extensive riparian corridors and
are incorrectly called drainage ditches
to devalue their worth. This commenter
is concerned that the waiver would
result in the degradation of headwater
streams, allow channelization of more
streams, and result in more losses of
wetlands. One commenter stated that
allowing filling of streams could impact
the States’ efforts to restore wetlands,
streams, and watershed functions.
We recognize that headwater streams
often provide important functions and
values, but there are situations where
the loss of these streams will result only
in minimal adverse effects on the
aquatic environment. We believe that
such situations would not likely occur
in intermittent streams, but rather in
perennial streams. We have thus
decided not to adopt the waiver of the
300 linear foot limit for perennial
streams. The absolute prohibition on the
use of these permits where more than
300 linear feet are impacted remains in
place for perennial streams. We have
decided to adopt the waiver process for
intermittent streams, thereby allowing
district engineers to waive, on a case-bycase
basis, the 300 linear foot limit for
the loss of intermittent stream beds
under NWPs 39, 40, 42, and 43. It is
important to note that, in order for the
waiver to occur, the district engineer
must make a written determination that
the proposed work will result in no
more than minimal adverse effects on
the aquatic environment. If the district
engineer does not provide written
confirmation of the waiver, then the 300
linear foot limit for the loss of
intermittent stream beds remains in
place and the project proponent must
obtain another type of Corps permit for
the proposed activity.
Further, if the proposed work will
result in more than minimal adverse
effects on the aquatic environment, the
district engineer will determine that the
waiver is not applicable and require the
project proponent to obtain an
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
individual permit. As an added level of
protection to valuable headwater
streams, division engineers can
regionally condition the NWPs to
further restrict or prohibit their use in
high value waters. The waiver will not
impact States’ efforts to restore waters
and watersheds, since the waiver can
only be issued after case-by-case review.
Some commenters asked how the
Corps would determine whether an
activity resulted in minimal
environmental impacts to justify
waiving the 300 linear foot limit. One
commenter asked if the cumulative
effects of the waiver would be evaluated
each time the waiver was used. A few
commenters said that the Corps cannot
justify eliminating and waiving the 300
linear foot limit until the Corps can
demonstrate that there are no
cumulative adverse impacts resulting
from activities authorized by NWPs.
District engineers will use their
knowledge of local aquatic
environments and case-specific
circumstances to determine when
proposed activities will result in
minimal adverse effects on the aquatic
environment. District engineers monitor
the use of NWPs on a watershed or
regional basis to determine whether the
cumulative adverse effects of these
activities are more than minimal.
One commenter said that the 300
linear foot limit for the NWPs should be
reduced to 200 linear feet. This
commenter also recommended that
mitigation should be required for all
projects that result in a net loss of
aquatic habitat, acreage, or function.
We do not agree that the 300 linear
foot limit should be reduced to 200
linear feet. The mitigation requirements
for the NWPs are addressed in General
Condition 19, Mitigation. For activities
authorized by NWPs, project proponents
are required to avoid and minimize
adverse effects to waters of the United
States on-site to the maximum extent
practicable. District engineers will
determine, on a case-by-case basis
whether compensatory mitigation is
required to offset losses of waters of the
United States and ensure that the
adverse effects on the aquatic
environment are minimal.
Several commenters discussed the
example provided in the August 9,
2001, Federal Register notice (page
42079) which described a 6-inch wide
by 1-inch deep ephemeral stream
running for several thousand feet. One
commenter inferred that the Corps was
devaluing all such streams and that the
loss of these streams would result in
more than minimal impacts. This
commenter said that relatively intact
ephemeral streams perform a diversity
2059
range of hydrologic, biogeochemical,
and habitat support functions that
directly affect down-gradient streams.
Another commenter stated that these
small headwater tributaries provide
important habitat for aquatic life,
including fish spawning areas. This
commenter also said that these streams
are important habitat for amphibians
and reptiles during those short periods
when water is flowing or ponded, and
that the continued loss of this habitat is
cumulatively damaging. Another
commenter stated that headwater
streams should be protected, and added
that continued permitting of these
activities under the NWP program must
include careful individual site review
by qualified aquatic biologists. Two
commenters said that minimal impact
determinations for the waiver of the 300
linear foot limit should require on-site
inspections.
The example provided in the August
9, 2001, Federal Register notice was
intended as an illustrative example to
show that some impacts exceeding 300
linear feet may still be minimal. It was
not intended to suggest that all
ephemeral streams are of low value, or
that all impacts to ephemeral streams
are by definition minimal. As a practical
matter, ephemeral streams are not
covered by the 300 linear feet limitation,
so a formal waiver is not needed for
ephemeral streams. However, even a
project that impacts only an ephemeral
stream could be required to obtain an
individual permit if the District
Engineer determined that individual or
cumulative adverse effects were more
than minimal. Under the waiver
process, the district engineer would
have to make a written determination
that the loss of an intermittent stream
segment exceeding 300 linear feet
would result in minimal adverse effects
on the aquatic environment. We do not
agree that it is necessary to require onsite
determinations in all cases by
district engineers prior to issuing a
waiver. District engineers can utilize
their experience, information provided
in pre-construction notifications, and
other sources of information before
determining the applicability of the
waiver.
Three commenters suggested allowing
the resource agencies to review all
waiver applications. One of these
commenters said that the public should
be allowed to comment on these
minimal effect determinations. Several
commenters were opposed to the
requirement for a written determination
of a waiver without a time clock.
We do not agree that it is necessary
to conduct agency coordination or a
public comment process for requests to
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2060 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
waive the 300 linear foot limit for
intermittent streams for NWPs 39, 40,
42, and 43. District engineers have the
expertise to determine on a case-by-case
basis whether these activities will result
in more than minimal adverse effects on
the aquatic environment. We do not
believe it is necessary to adopt a
separate time clock for waiver requests.
If a project proponent submits a
complete pre-construction notification
for a NWP 39, 40, 42, and 43 activity,
and the proposed work involves filling
or excavating more than 300 linear feet
of intermittent stream bed, the project
proponent cannot assume that the
proposed work is authorized by these
NWPs unless a written waiver is
obtained from the district engineer.
District engineers should respond to
requests for the 300 linear foot waivers
for intermittent streams within the 45
day pre-construction notification
period.
NWPs 39, 40, 42 and 43 are issued
with a waiver for the 300 linear foot
limit for intermittent stream beds. These
NWPs cannot be used to authorize the
loss of more than 300 linear feet of a
perennial stream bed. As a clarification,
there are no absolute quantitative
limitations on linear impacts to
ephemeral streams, as long as the
adverse effects on the aquatic
environment are no more than minimal.
Nationwide Permits General Conditions
1. Navigation. There were no changes
proposed to this General Condition.
There were no comments on this
General condition. The General
Condition is adopted without change.
2. Proper Maintenance. There were no
changes proposed to this General
Condition. There were no comments on
this General Condition. The General
Condition is adopted without change.
3. Soil Erosion and Sediment
Controls. There were no changes
proposed to this General Condition.
There were no comments on this
General Condition. However, there was
a comment on NWP 7 that the Corps
determined was related to this
condition. The change is discussed in
the Preamble discussion of NWP 7. We
agreed with the comment.
The General Condition is adopted
with a change to encourage permittees
to perform work in waters during lowflow
or no-flow conditions.
4. Aquatic Life Movements. In the
August 9, 2001, Federal Register notice,
the Corps proposed to modify this
General Condition to clarify the intent
of the condition was to protect aquatic
life cycle movements.
One commenter stated that the
current General Condition 4 was
difficult to understand. Numerous
commenters supported the clarification
of this General Condition. Several
commenters suggested that the
statement ‘‘substantially disrupt life
cycle movements’’ be replaced with
‘‘prevent life cycle movements’’,
because substantial gives the impression
that the impacts may be more than
minimal. One commenter suggested that
General Condition 4 should be revised
to read, ‘‘No activity conducted under a
NWP may substantially disrupt the
necessary life-cycle movements of those
species of aquatic life indigenous to the
water body, including those species that
normally migrate through the area,
culverts placed in streams must be
installed to maintain low flow
conditions’’. One commenter
recommended that General Condition 4
should restrict any activity that could
impact or impair aquatic life stages or
movement of organisms dependent
upon waters or wetlands. One
commenter stated that there is no need
to change the wording of General
Condition 4, if the Corps would
consider that all movements by an
organism are related to its life cycle.
One commenter requested clarification
of this condition concerning the
application of the condition to other
organisms, which do not have all of
their life cycles within the aquatic
environment (amphibians).
We have retained the word
‘‘substantially’’ in the text of this
General Condition, which is related to
the movement of the species not to the
impact on the species. Removal of this
word would change the standard to any
movement no matter how minimal or
inconsequential the movement would
be. We believe that most work in waters
of the United States will result in some
disruption in the movement of some
aquatic organisms through those waters.
District Engineers will determine, for
those activities that require notification,
if the disruption of aquatic life-cycle
movements is more than minimal and
either add conditions to the NWP to
ensure that the adverse effects are no
more than minimal or exercise
discretionary authority and require an
individual permit.
A few commenters stated that culverts
must be installed in streams to maintain
low and high flow conditions to allow
fish passage. One commenter added that
the hydraulic analysis to determine that
range of high flows through the culvert
shall be based upon anticipated flows in
the basin at build-out.
The Corps believes that it is important
to maintain low flow conditions, but
that it is not reasonable or necessary to
require hydraulic analysis for every
culvert that would be authorized by
NWPs. Corps district can enforce this
condition where necessary.
One commenter stated that activities
for which the primary purpose is to
impound water should be evaluated as
individual permits and not authorized
under NWPs since ponds significantly
disrupt the necessary life cycle of
aquatic life.
We believe there are impoundment
projects which would substantially
disrupt the movement of specific
individuals of aquatic life, but which
would not adversely affect the
populations of the species nor have
more than minimal impacts on the
aquatic environment. Such activities
would need to be processed as
individual permits.
This General Condition is adopted as
proposed.
5. Equipment. There were no changes
proposed to this General Condition.
There were no comments on this
General Condition. The General
Condition is adopted without change.
6. Regional and Case-by-Case
Conditions. There were no changes
proposed to this General Condition. One
commenter stated that the public was
not given adequate time to evaluate the
regional conditions as they were not
published in the Federal Register.
Furthermore, the comment period for
the regional conditions did not coincide
with the comment period of the
proposal to modify and reauthorize the
NWP program. Therefore, the public
was not provided an opportunity to
evaluate and provide comment on the
comprehensive and cumulative impacts
of the NWPs.
Regional conditions are proposed and
evaluated by the individual Corps
division offices by a public notice and
comment process. Case-by-case
conditions are developed by Corps
District or Division offices, to ensure
that specific activities meet the NWP
conditions and have no more than
minimal adverse effect on the aquatic
environment, individually and
cumulatively. Division offices need to
know what the final NWPs are before
they can develop final regional
conditions. Therefore, the review of any
proposed regional conditions can not
occur simultaneously with the review of
the NWPs. Finally, this condition is to
reinforce that those regional and caseby-case
conditions are legally binding
conditions of the NWPs.
The General Condition is adopted
without change.
7. Wild and Scenic Rivers. There were
no changes proposed to this General
condition. There were no comments on
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this General condition. The General
Condition is adopted without change.
8. Tribal Rights. There were no
changes proposed to this General
condition. One commenter stated that
tribal rights have been impaired due to
cumulative impacts by the NWP
program and suggested that a regional
condition should be implemented to
prohibit use of NWPs in south Florida
until a regional EIS has been completed.
The comments have been forwarded to
the appropriate Corps District. The
General Condition is adopted without
change.
9. Water Quality. The Corps proposed
to clarify this condition as it relates to
detailed studies and documentation
requirements. We also proposed to add
language that clarifies that permittees
may meet the requirement of this
condition by complying with state or
local water quality practices.
Numerous commenters agreed with
the proposed change to General
Condition 9. Many commenters stated
the current more burdensome
requirements, detailed studies, and
design plans, only serve to expend the
time and resources of the applicant.
Several commenters indicated concern
that the Corps may infringe upon the
water quality authority of the State. One
commenter recommended that General
Condition 9 be revised to mandate
compliance with the most stringent
applicable standards whether they are
federal, state, or local. One commenter
stated that the Corps should not defer
authority by making state or local
permits a contingency of an NWP.
Several commenters disagree with the
proposed changes to this condition
stating that many local jurisdictions lack
the skilled personnel to develop and/or
enforce adequate water quality
standards and without evaluation of the
state or local practices, the Corps cannot
insure that impacts to the aquatic
environment are minimal. One
commenter stated that the proposed
clarification should be withdrawn
because the General Condition is less
stringent than the existing condition
and will result in poorer water quality.
One commenter suggested that this
condition should be expanded to
specifically exclude the use of any NWP
for a project adjacent to or in any water
of the U.S. designated on a State 303(d)
list.
We believe the changes will not
reduce protection of the aquatic
environment. Although the language of
this condition could be interpreted to
require detailed studies and design to
develop water quality plans for every
permit action, that was never our intent.
While we do believe that inclusion of
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
water quality management measures in
project design is very important, we do
not believe that comprehensive water
quality planning should be a
requirement of Corps NWPs, except in
a few cases. In most cases, the Corps
relies on state or local water quality
programs. Where such programs do
exist, the Corps will normally review
the project to ensure that appropriate
water quality features, such as
stormwater retention ponds, are
designed into the project. In some cases,
the Corps may require more extensive
design features to ensure that open
water and downstream water quality are
not substantially degraded. Normally,
we believe that the permittee will
comply with the requirements of this
condition by obtaining state or local
water quality approval or complying
with state or local water quality
practices, where such practices exist.
The Corps proposed a condition in 1998
to restrict NWPs in State 303(d)
(impaired) waters. We decided not to
adopt that condition as explained in the
March 9, 2000 preamble. We could not
now adopt such a condition without
proposing it for public review and
comment.
The General Condition is adopted as
proposed.
10. Coastal Zone Management. There
were no changes proposed to this
General Condition. There were no
comments on this General Condition.
The General Condition is adopted
without change.
11. Endangered Species. There were
no changes proposed to this General
Condition. One commenter stated that a
sentence has been omitted from this
condition in the proposed preamble
with no notification of the change. The
omitted sentence, the last line of 11(a),
states that, ‘‘As a result of formal or
informal consultation with the FWS or
NMFS, the District Engineer may add
species-specific regional endangered
species conditions to the NWPs’’. The
commenter stated that omitting this
statement shifts the burden of
identifying and protecting potentially
impacted endangered and threatened
species and their critical habitat onto
the permit applicant. The commenter
requested that this change be dropped
because the Corps has not met the legal
requirements to adopt it.
The commenter is correct. This
sentence is included in the currently in
force June 6, 2000, version of this
General Condition, but not in the
August 9, 2001, proposed version. The
Corps did not intend to propose any
changes to this General Condition. The
omission was in error. The omitted
2061
sentence has been reinserted in this
condition.
One commenter stated that this
condition may lead to compliance with
the ESA however, is not likely to fully
minimize or substantially reduce the
significance of harm to listed species
and their critical habitat. One
commenter suggested this condition be
re-titled to read ‘‘Threatened and
Endangered Species’’, the condition be
simplified and clarified, and the U.S.
Fish & Wildlife Service and the National
Marine Fisheries Service web sites be
placed in this condition.
We believe this condition as stated
provides not only the legal protection
but also the actual protection required
under the ESA. The ‘‘Endangered
Species Act’’ covers both threatened and
endangered species as does the General
Condition title ‘‘Endangered Species’’.
We do not believe that it is necessary to
include other agency websites here.
These are readily accessible on the
internet.
The General Condition is adopted
without change (but with the
inadvertently omitted sentence
restored).
12. Historic Properties. There were no
changes proposed to this General
Condition. Two commenters
recommended that the Corps coordinate
with the SHPOs in accordance with the
National Historic Preservation Act
(NHPA) and requested that a FONSI
should not be issued until consultation
under NHPA has been completed.
Division and districts will coordinate
with SHPOs and Tribal Historic
Preservation Officers where appropriate
and add any regional conditions or case
specific conditions that may be
necessary to satisfy the NHPA in
specified areas. There is no requirement
to coordinate with SHPO in developing
a FONSI and we do not believe that
such coordination is necessary.
The General Condition is adopted
without change.
13. Notification. In the August 9, 2001
issue of the Federal Register, we
proposed under Contents of
Notification, to provide applicants the
option to provide drawings, sketches or
plans sufficient for Corps review of the
project to determine if the project meets
the terms of an NWP, to allow a waiver
of the 300 linear-foot prohibition
[following written verification from the
Corps], and to delete for NWPs 12, 14,
29, 39, 40, 42, 43, and 44 the
requirement to provide ‘‘notification’’ to
the Corps for permanent above grade
fills in waters of the U.S. These latter
two changes were to make notification
requirements consistent with changes
discussed elsewhere in this notice.
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2062 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
Several commenters supported the
proposed clarification for the submittal
of drawings. Few commenters disagreed
with the clarification but some said that
drawings or sketches should be a
mandatory requirement for notification
and requiring this information would
reduce Corps workload while insuring
that impacts to the aquatic environment
are minimal. One commenter
recommended that photographs be
required with notification.
It was not the intent of this proposed
clarification to modify the required
contents of notification or to make
submittal of non required information
mandatory but rather to encourage
applicants to provide us as complete a
submittal as possible to expedite our
review of their application. We did state
that the Corps has the discretion on a
case-by-case basis to require additional
information as necessary to determine if
the activity complies with the terms and
conditions of the NWP.
Several commenters agreed with the
proposal to delete the notification
requirements for above grade fill in
waters of the United States. One
commenter recommended expanding
notification requirements to include
above grade fills in NWPs 3, 12, 14, 21,
31, 39, 40, 42, and 44 and stated that the
applicant should submit documentation
as to why there is no practicable
alternative to the proposed discharge
and provide a copy to EPA, F&WS, and
NMFS. One commenter stated that a
statement of avoidance and
minimization should be submitted with
NWPs 12, 14, 40, 41, and 42.
The Corps believes it is not necessary
for permittees to routinely notify the
Corps for above grade fills in waters of
the US as long as they are complying
with general condition 26. Comments
on this issue are further discussed under
general condition 26.
One commenter recommended that
the review period for NWPs 3, 12, and
33 be amended to 30 days instead of 45
to expedite energy-related projects. One
commenter supported the 45-day time
frame for review of notification but
believed 60 days is more realistic. A
couple of commenters requested this
condition be amended to require the
Corps to issue or deny the NWP within
45 days of receipt of a complete
notification and the 45-day timeframe
should also apply to the 300-foot stream
waiver provision.
The Corps normally does not take the
full 45 day time period to verify NWPs.
For energy related activities Corps
districts will expedite the decision as to
whether to verify the activity under an
NWP. It is not necessary to make that a
permit condition. Corps districts are
required to make a decision to verify or
deny the NWP within 45 days, or the
applicant may proceed. However, this
does not apply to waiving the 300 linear
foot prohibition for intermittent streams
or the verification of NWP 21 or the 500
linear foot limit for NWP 13. In these
cases, the applicant may not proceed
before receiving written verification.
This is to ensure that the district has
adequate time to make a satisfactory
evaluation before deciding whether to
authorize use of an NWP.
One commenter stated that the Corps
has amended the language in condition
13(a) without providing notification in
the preamble. The March 9, 2000
Federal Register stated ‘‘where required
by the terms of the NWP, the
prospective permittee must notify the
District Engineer with a preconstruction
notification (PCN) as early
as possible’’. The August 9, 2001 notice
stated ‘‘The District Engineer must
determine if the notification is complete
within 30 days of the date of receipt and
can request additional information
necessary for the evaluation of the PCN
only once’’. The commenter indicated
this change will increase the incentive
of permit applicants to withhold
relevant information necessary for full
evaluation of a PCN and the change
must be withdrawn.
The Corps did not intend to propose
this change. It was an error. The general
condition will be issued with the
existing language adopted on March 9,
2000.
One commenter disagreed with the
agency coordination threshold of 1 ⁄2 acre
and stated that all PCNs should require
a 30-day agency coordination to ensure
minimal impacts. One commenter stated
that simply noting in the record that an
agency concern has been considered,
without a response to the agency, is not
agency coordination and is not full
consideration of their comments.
Furthermore, the commenter stated that
any recommendations that are not
adopted, after coordinating a decision
with the agency, should be fully
documented and become part of the
administrative record.
We disagree. The requirement for
agency coordination is to fully consider
agency comment with no specification
to document or respond to the
commenting agency, though normally
the Corps does respond to commenting
agencies when significant concerns are
raised. Further, it has been determined
in coordination with the other Federal
agencies that 1 ⁄2 acre is a satisfactory
threshold for required coordination.
Coordination does occur with other
Federal agencies on a case specific as
needed basis.
One commenter recommended that
the Corps consider removing the
mandatory delineation of special
aquatic sites, including wetlands, or at
the least adding a reasonable threshold
for such documentation to all PCNs.
One commenter recommended the
addition of NWPs 3, 11, 13, 19, 27, 31,
and 36 to the requirement for submittal
of delineation of special aquatic sites
with the PCN.
We do not believe that we should
either increase or decrease the specific
activities for which a mandatory
delineation is required. We do not
believe it is necessary for many NWPs,
for example; requiring a delineation for
NWPs 3 and 31 would be unnecessary
for maintenance activities authorized by
these NWPs. Also districts may require
a delineation of wetlands (or any other
appropriate documentation) in cases
where they determine it is necessary to
evaluate the impacts of the project or to
determine the mitigation requirements.
One commenter disagreed with the
requirement to submit information
regarding the original design capacities
and configurations where maintenance
excavation is proposed under NWP 7,
(b)(5) because if the maintenance
excavation is non-jurisdictional, the
applicant should not be required to
submit such information, and the Corps
should not review non-regulated
activities. One commenter
recommended that the Corps clarify
(b)(16) to state that activities that consist
of non-jurisdictional excavation or
temporary stockpiling during the
excavation process are not included in
the compensatory mitigation
requirements or in the calculation of
acreage of waters lost.
Maintenance excavation activities in
section 404-only waters do not require
a CWA section 404 permit unless they
result in more than incidental fallback.
If there are regulated excavation
activities that can be authorized under
NWP 7, then the applicant will need to
provide information necessary for the
Corps to evaluate the PCN for
compliance with the terms and
conditions of the NWP. Non
jurisdictional activities should not be
considered in mitigation requirements.
However, related impacts of the project
will be considered when determining if
the adverse effects are more than
minimal. Also the acreage impacts for
directly related excavation activities
will be included in calculating the
acreage limits for the NWP. The concern
addressed by the acreage limit is with
the direct effects of the activity.
Temporary stockpiling is a regulated
activity and is considered for possible
mitigation requirements where the
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impacts are measurable. However, the
acreage is not included in calculating
the acreage limit because the impacts
are temporary.
One commenter recommended that
the Corps revise the notification
requirement in (b)(10) for NWP 31 to
require the applicant to obtain the Corps
approval prior to construction for any
disposal site within waters of the United
States. The commenter stated that the
proposed condition requires location of
disposal site at time of notification,
which is not always an option for longterm
maintenance activities.
NWP 31 does not authorize the
disposal of the excavated material into
waters of the US unless the disposal site
is submitted with the PCN. The District
Engineer can review a disposal site to
assure that it is not in waters of the US
or, if it is in a water of the US, to
determine if the adverse effects are more
than minimal and, if so, disapprove the
disposal site.
One commenter recommended that
the Corps accept the use of established
state agency coordination documents
concerning annual work plans as
sufficient notification for maintenance
activities.
Once a maintenance baseline has been
approved, the applicant must then
notify the Corps of maintenance
activities, either case-specific or
generically. The state agency documents
you describe may be sufficient, but such
a decision would need to be made on a
case-by-case basis by the appropriate
Corps District Engineer.
One commenter recommended that
NWPs 3, and 31 also be added to (b)(5)
and a delineation of affected special
aquatic sites including wetlands, along
with the location of dredge material
disposal site, should be provided.
NWP 3 allows for the maintenance of
currently serviceable structures and
fills, consequently wetlands and other
special aquatic site should not be
affected by the maintenance activity.
However, while this is also true for most
NWP 31 activities, NWP 31 also allows
the maintenance of unconfined
channels that have wetlands in them
from time to time. Therefore, (b)(10)
does require delineation of special
aquatic sites, including wetlands to be
included in PCNs for NWP 31. The
location of disposal sites for NWP 31
PCNs is required by (b)(10). NWP 3 does
not provide for authorization of disposal
sites in waters of the US, except for part
(ii), which requires that the District
Engineer specifically approve any such
disposal site under a separate
authorization.
One commenter disagreed with the
restoration plan requirement in (b)(11)
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
for NWP 33 because excavation is not
regulated. The commenter added that
the regulated discharge is temporary
and the only required restoration should
be the removal of the temporary deposit.
The restoration plan must address
temporary activities including both
filled and excavated areas. If a Corps
permit is required for some of the
temporary work and the permittee seeks
authorization by NWP 33, then the
affected waters of the U.S. must be
restored by the permittee and a
restoration plan submitted to the Corps.
One commenter recommended that
the requirement for the submittal of a
maintenance plan under (b)(15) be
deleted. Excavation in Sec. 404 waters
does not required authorization from the
Corps. The maintenance plan is to
ensure that cyclical maintenance does
not cause more than a minimal effect
and that cyclical activities only be
mitigated for once.
The Corps believes that it is necessary
to maintain stormwater management
facilities. The Corps also believes that to
ensure that the adverse effects are
minimal it is necessary that an adequate
mitigation plan be developed by the
permittee. This requirement provides
the necessary assurances that such a
necessary maintenance plan is
developed.
In the preamble to the August 9, 2001,
Federal Register notice, the Corps
proposed for NWPs 21, 39, 40, 42, and
43, to add language to the notification
General Condition 13 from the permit.
For all projects using NWP 21 and for
projects using NWPs 39, 40, 42, and 43
that propose impacting intermittent
stream beds in excess of 300 linear feet,
the Corps must be notified and explicit
authorization in writing obtained from
the Corps before the project can
proceed. There were no comments on
this proposal. The Corps has added
language to General Condition 13 as
proposed. This added language does not
change any requirement of the NWPs.
The General Condition is adopted as
proposed.
14. Compliance Certification. There
were no changes proposed to this
General Condition. There were no
comments on this General Condition.
The General Condition is adopted
without change
15. Use of Multiple Nationwide
Permits. There were no changes
proposed to this General Condition. One
commenter stated that the use of more
than one NWP for a single and complete
project is prohibited. One commenter
stated that the Corps should include a
General NWP condition that precludes
the use of multiple NWPs and NWPs in
combination with individual permits for
2063
multiple Section 10 or 404 activities
located in close proximity to one
another. The commenter asserted the
Corps is in noncompliance with Section
404(e) and NEPA when stacking of
NWPs is allowed. One commenter
suggested that the District Engineer be
authorized to waive the highest
specified acreage limit when stacking
NWPs, not to exceed the overall
minimal impact threshold in order to
avoid an individual permit.
We will continue to allow use of
multiple NWPs to authorize a single and
complete project provided it will result
in no more than minimal adverse effects
on the aquatic environment,
individually and cumulatively. We do
not agree that allowing use of multiple
NWPs is in violation of Section 404(e)
or NEPA. We continue to believe that in
order to allow the use of multiple NWPs
for a single and complete project, it is
necessary to not exceed the highest
acreage limit of any of the NWPs.
The General Condition is adopted
without change.
16. Water Supply Intakes. There were
no changes proposed to this General
Condition. There were no comments on
this General Condition. The General
Condition is adopted without change
17. Shellfish Beds. There were no
changes proposed to this General
Condition. There were no comments on
this General Condition. The General
Condition is adopted without change.
18. Suitable Material. There were no
changes proposed to this General
Condition. There were no comments on
this General Condition. The General
Condition is adopted without change.
19. Mitigation. The following
discussion does not alter or supersede
requirements under the section
404(b)(1) Guidelines or guidance
applicable to individual permits, such
as the 1990 EPA/Department of the
Army MOA concerning the
determination of mitigation under the
Guidelines. The Corps proposed to
revise this General Condition to allow a
case-by-case waiver of the requirement
for one-for-one mitigation of adverse
impacts to wetlands. This change is
intended to allow Corps Districts to
require the mitigation for project
impacts that best protects the aquatic
environment. In the case of wetland
destruction, one-for-one replacement or
restoration is often the most
environmentally appropriate form of
mitigation, and the Corps will continue
to require this form of mitigation in the
majority of cases. However, the Corps
believes the one-for-one acreage
requirement as currently written is too
restrictive in that it does not allow the
Corps to mitigate aquatic impacts to
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2064 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
streams and other non-wetland aquatic
resources.
Proposed Waiver of One-for-One
Mitigation Requirement
Numerous commenters opposed the
case-by-case waiver of the requirement
for one-for-one mitigation of adverse
impacts to wetlands. Instead they
requested that the Corps maintain onefor-one
and/or strengthen existing
mitigation requirements. Several
commenters stated that wetland loss
continues to occur despite the
regulatory programs efforts and ‘‘no net
loss’’ policy, and that the proposed
waiver would allow extreme flexibility
in implementing mitigation policy
which would be counter to current
Federal mitigation guidance and ‘‘no net
loss’’. Rather the proposal would further
invite net losses of wetlands. As such,
many commenters recommended that
the Corps require compensation for
impacts to wetlands at higher than a
one-for-one ratio, or at a minimum,
clearly outline the Corps discretion to
require greater than one-for-one ratios.
The Corps is committed to the no
overall net loss of wetlands goal, and
will continue to require more than one
for one mitigation for wetland loss in its
nationwide permit program. The
underlying policy of the Corps, since
1990, has been to offset impacts to
wetlands at a one for one ratio on a
functional basis. Based on the
possibility of failure of mitigation, as
pointed out in the recent NRC/NAS
Report on the Corps Regulatory
Program, the Corps has for many years
required more than one for one
mitigation on an acreage basis. The
proposed change to condition 19 is
intended to result in a more ecologically
and watershed based approach to
mitigation. Wetlands remain one of the
most critical ecological assets in most
watersheds in the Country, but other
vital aquatic ecosystems, such as freeflowing
streams, are subject to impacts
that must also be offset. The changes to
Condition 19 will allow the Corps
biologists to make the right decision on
mitigation for each project within the
watershed context. However, to
reinforce its commitment to the no net
loss policy, the Corps will also direct its
District Offices to ensure that their
verified NWPs achieve at least one-forone
mitigation of all wetlands impacts,
on an acreage basis for the District as a
whole. In documenting compliance with
this requirement, districts should not
include preservation of existing
wetlands in their district-level tally of
compensating wetlands mitigation.
Preservation, while it may be important
for the aquatic environment and may be
appropriate in some cases as mitigation,
does not compensate for lost wetlands.
The Corps has also slightly modified
the wording of paragraph (f) of this
general condition from what was
proposed to clarify that the requirement
to mitigate wetland impacts is not
waived only the requirement to provide
wetland mitigation. The stream buffers
themselves may provide mitigation for
wetland impacts. The wording is also
revised to clarify that the District
Engineer may reduce as well as
completely waive the requirement for
wetland mitigation for wetland impacts.
One commenter stated that the waiver
would conflict with the Corps policy
that nationwide permits have only
minimal adverse effects on the aquatic
environment. Another commenter stated
that wetlands offer too many important
services to be sacrificed by
implementing this waiver. One
commenter suggested that guidelines
should first be developed that identify
the circumstances which warrant the
use of a waiver mechanism and outline
its proper implementation.
The waiver will not sacrifice
wetlands; it will ensure the best
mitigation for each permit decision that
is made. The Corps cannot establish
specific guidelines beyond what we
have for waiver of the one for one
acreage requirement. The Corps has
exceptional biological and ecological
expertise in the districts and we trust
those professionals to make the proper
judgments in each case.
One commenter suggested that the
Corps coordinate with regulatory
natural resource agencies for out-of-kind
mitigation when the one-for-one
mitigation requirement is waived.
The Corps 1,150 district employees in
the Regulatory Program are
predominantly biologists and ecologists.
These exceptional professionals have
the capability to make the ecological
mitigation judgments, and with 40,000
nationwide permit decisions made
every year the other agencies do not
have the capability to substantively
comment on every project.
Many commenters agreed with the
proposed waiver of the one-for-onemitigation
requirement, stating it would
provide the Corps with increased
flexibility when determining
appropriate mitigation. One commenter,
while agreeing with the proposal,
suggested the applicant should be
required to justify why a less than onefor-one
mitigation is appropriate by
clearly articulating why a mitigation
area’s functions and values are greater
than what was lost.
We agree that proper mitigation
decisions will be made under the
revisions to Condition 19. The Corps
will make a decision in writing when
the one for one acreage ratio for
mitigation will not be met. In most
cases, that decision will be based on the
applicant’s information, however, we do
not believe we should require a process
that may not in some cases be needed.
Applicants should note however that
providing sound justification with a
waiver request will increase the chances
of the waiver being granted.
Vegetated Buffers
Many commenters were opposed to
the use of vegetated buffers to mitigate
wetland losses. Several stated that
allowing vegetated buffers to count as
mitigation would be counter to current
Federal mitigation guidance and the
goal of ‘‘no net loss’’. One commenter
suggested the proposal constitutes a
major change in mitigation policy by
establishing a sort of ‘‘ecological
trading’’, allowing the offsetting of
impacts to wetlands with compensation
through non-wetland environmental
improvements. Other commenters stated
that this proposal was against Corps
policy that nationwide permits have
minimal adverse effects on the aquatic
environment.
The Corps believes that vegetated
buffers are a critical element of the
overall aquatic ecosystem in virtually all
watersheds. Of course, some arid areas
do not have vegetated buffers even in a
natural state and the Corps will not
require vegetated buffers where they
would not naturally occur. However,
nationwide this is uncommon. The
Corps believes we need to protect open
waters better than we have in the past,
and vegetated buffers are a critical
element of that protection. Many
vegetated buffers to open waters are in
fact wetlands. Some vegetated buffers
are uplands, but are critical to open
water protection. The Corps believes in
a watershed approach, with the ability
of the Corps districts to make the best
decision for the aquatic ecosystem and
watershed where the permitted impacts
will occur. Mitigation, including
vegetated buffers is used to ensure that
no more than minimal adverse effects
on the aquatic environment will occur.
Several commenters indicated that it
was inappropriate to suggest that
vegetated buffers in uplands could act
as compensatory mitigation for the
placement of fill in waters of the U.S. A
few commenters stated that, as a means
of increasing value of mitigation,
vegetated buffers are beneficial and are
often incorporated into compensatory
mitigation plans to offset the adverse
effect of an individual permit
authorization. However vegetated
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uffers alone will not fully compensate
for wetland loss, do not replace
wetland/aquatic environment value and
function, and should not be regarded as
compensatory mitigation for the
placement of fill in waters of the U.S.,
but instead should be added to the onefor-one
mitigation requirement.
The Corps takes a holistic watershed
approach to mitigation of impacts to
waters of the U.S., which includes
impacts to non-wetlands. Vegetated
buffers, both upland and wetland are a
critical part of that watershed approach.
The Corps needs the flexibility to make
the best mitigation decision for each
watershed.
A few commenters were concerned
that vegetated buffers may be used more
often than one-for-one wetland
mitigation (e.g. restoration,
enhancement, and/or creation),
supporting a continual loss of wetland
habitats. Concerned for cases in which
less than one-for-one mitigation of lost
wetlands incorporates the establishment
and/or preservation of vegetative buffers
as part of that mitigation, commenters
suggested a careful analysis of the
functions and values of the vegetated
buffers as compared to the impacted
wetlands be performed.
The Corps will use the modified
Condition 19 to make the best decision
for the watershed where the permitted
effects occur. The Corps will continue to
require more than one for one mitigation
for wetlands, it is just not required for
every permit decision, because that does
not always make sense for the aquatic
environment.
One commenter suggests that
functional assessments of mitigation
with the purpose of justifying ratios less
than one-for-one based on a projected
functional boost provided by the buffer
is inappropriate. Rather, the Corps
should also address functional impacts
to wetlands under the permit process
and require mitigation for loss of
functional value from permitted impacts
to vegetated buffers.
The Corps does use a functional basis
when requiring mitigation, but since
models to assess aquatic ecosystem
functions, including but not limited to
wetlands, are not yet comprehensive,
the decision requires professional
judgment. The Corps 1,150 Regulatory
Program employees are predominantly
biologists and ecologists, so we have the
capability to make sound ecological
decisions.
One commenter stated the proposed
regulations do not require proof that
vegetated buffers or other methods of
mitigation would replace lost functions
and values of an impacted wetland. This
commenter added that they were not
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convinced the Corps would be able to
assess lost functions resulting from
impacts to particular wetlands or those
functions gained by incorporating
vegetated buffers.
The Corps makes its mitigation
decisions on an aquatic ecological
function basis using professional
judgment. With thousands of decisions
each year many involving less than 0.1
acre of impact, it is not practical, nor a
responsible expenditure of resources to
require absolute proof that the
mitigation will offset the impacts.
Programmatically, the Corps will
improve its enforcement, and mitigation
banks and in lieu fees are an important
part of that improved mitigation
performance.
One commenter disagreed with the
Corps statement regarding the greater
effectiveness of vegetated buffers at
protecting open waters due to their
relative proximity to open waters over
those wetland distant to open waters.
Instead, the commenter suggests that the
relative effectiveness of vegetated
buffers and wetlands at protecting open
waters depends more on the nature of
water flow through an area than on the
proximity of the buffer or wetland to the
water body.
There is no doubt that vegetated
buffers protect open waters in terms of
removing non point source water
pollution. Vegetated buffers also
stabilize the shoreline of open waters
and in most cases provide important
aquatic habitat such as shading or
providing hiding places during high
water. The Corps believes that
establishing or maintaining existing
vegetated buffers to open waters is
critical to overall protection of the
nations aquatic ecosystems. The Corps
agrees, however, that the relative
importance of wetlands and vegetated
buffers at any particular site is
dependent on site-specific factors. This
is why Corps field staff must have
flexibility to determine appropriate
mitigation on a site-specific basis.
One commenter stated that vegetative
buffers must not be used in lieu of
wetlands mitigation, but there must be
a preference for restoring, enhancing, or
creating buffers as a component of
appropriate mitigation. The commenter
further stated that the Corps must
require a minimum 100-foot-wide
riparian or wetland buffer (instead of
the proposed 25 to 50 feet), to be
increased as necessary in proportion to
the size and shape of waters they
surround to obtain the desired
performance.
The Corps will take a watershed
approach with mitigation, which will
include vegetated buffers as a critical
2065
element of mitigation. The Corps must
be reasonable in the width of the
vegetated buffer required. While a wider
buffer clearly provides more protection,
even a narrow vegetated buffer provides
important protection for the aquatic
environment. In determining
appropriate buffer widths, the Corps
must balance environmental protection
with what is reasonable given the scope
of the project and the level of impacts
that need to be mitigated.
One commenter stated that the Corps
proposal is counter to Federal policy
and Corps guidance that favors
mitigation banks in the context of
general permitting.
The Corps believes the proposed
changes to Condition 19 are consistent
with Corps policy. Mitigation banks are
one important form of mitigation, but
there are many others. The proposed
changes will enhance, not limit, the
opportunity to use mitigation banks by
providing greater flexibility to Corps
field staff to determine the most
environmentally beneficial mitigation.
One commenter expressed concern
that vegetated buffer areas, especially
non-jurisdictional habitats, used as
mitigation, would not be afforded the
same protection by existing laws as
mitigation sites in which jurisdictional
areas are created, enhanced, restored, or
preserved.
Vegetated buffers established or
preserved in uplands are subject to the
same protection as aquatic areas are
through permit conditions. The Corps
will generally require that all mitigation,
including upland areas that are parts of
vegetated buffers, are placed in
conservation easements or protected in
some other manner.
One commenter recommended that
the Corps only consider other forms of
mitigation as part of an overall
compensatory mitigation requirement
once no net loss of function and acreage
is obtained, and that a conservation
easement or deed restriction be required
for all such mitigation.
The Corps will take a holistic
watershed approach to mitigation
without arbitrarily favoring any type of
mitigation. The Corps biological and
ecological capability in the districts will
be used to make the best mitigation
decisions.
A few commenters disputed the
appropriateness of the ‘‘normal’’
requirement of upland buffers as
compensatory mitigation to open waters
since it exceeds the Corps statutory
authority to regulate these areas. A few
commenters expressed concern that
requiring vegetated buffers as mitigation
may be invalid where the condition
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2066 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
bears no relationship to the impacts of
the discharge on a particular site.
Vegetated buffers required by the
Corps as mitigation on open waters is
within the Corps authority because they
are providing water quality benefits to
the open water areas and often the
vegetated buffer provides aquatic habitat
such as shading to maintain cool water
stream. All mitigation, whether
vegetated buffers or wetland mitigation,
must be related to the impacts
authorized. The Corps views that
relationship in the context of the overall
aquatic environment on a watershed
basis.
One commenter suggested that the
Corps’ advocacy of the use of vegetated
buffers for mitigation of impacts to
waters of the U.S. is an abandonment of
a long-standing policy of ‘‘no net loss’’
and requirement of in-kind wetlands
mitigation, and called for an adequate
basis for this change in policy.
The proposed modification to
Condition 19 does not change the Corps
commitment to no overall net loss of
wetlands. The Corps has required no
overall net loss of wetlands since the
early 1990s and will continue to do so
under the revised condition. The
changes to Condition 19 simply allow
the Corps to make the best mitigation
decision on a case-by-case basis from a
watershed perspective. Requiring onefor-one
mitigation in every single permit
does not support a watershed approach
to mitigation because it focuses
excessively on one type of mitigation.
Although the Corps believes that
flexibility is needed on a project specific
basis to determine the appropriate
mitigation, we will continue to ensure
that the NWP Program results in no
overall net loss of wetlands. On an
individual permit basis, the Corps often
requires greater than one-for-one
mitigation on an acreage basis, due to
the value of the replacement acreage,
temporal effects and risk factors. As
noted above, to further ensure that no
net loss is achieved, we are establishing
a requirement that all Corps districts
must meet an annual goal of at least
one-for-one wetlands mitigation on an
acreage basis for verified nationwide
permit activities within each district for
each fiscal year. The Corps will collect
information documenting compliance
with this requirement and make it
available on the internet.
Numerous commenters agreed with
eliminating the mandatory one-for-one
mitigation requirement to qualify for an
NWP, stating that it would provide
Corps with increased flexibility in
determining mitigation requirements
that may be more appropriate and
environmentally beneficial. A couple of
commenters also favored the proposed
waiver because they believe the very
low PCN thresholds for the NWPs
creates situations where many small
projects become subject to review for
which one-to-one mitigation would be
overly burdensome and impracticable.
The Corps agrees with these
comments.
One commenter supported the
proposed use of buffers as mitigation,
but cautioned the Corps to avoid
suggesting any minimum width
prescriptions or specific replacement
ratios. Another commenter cautioned
that, in situations where less than onefor-one
mitigation of permanent impacts
to wetlands is allowed, and the
establishment and/or preservation of
vegetative buffers as mitigation is
proposed, then a careful analysis must
be conducted and include a
determination of the function and value
of the proposed vegetated buffers as
compared to the impacted wetlands.
The commenter indicated that
determining the width of vegetated
buffers is extremely subjective, and that
mitigation containing these features
should be scrutinized to ensure the
vegetated buffers have sufficient width
and length to provide habitat in and of
themselves, not just for the waters of the
U.S. they border. Another commenter
stated that alternative mitigation
measures, such as vegetated buffers,
should be valued and compared to
permitted losses only to the degree that
they enhance or create wetland
functions beyond what would exist
without them (e.g. a 10-acre buffer
placed around a 5-acre wetland would
not necessarily offset 10, or even 5
acres, of wetland impacts; rather, if the
5-acre wetland were improved 20
percent in habitat value the buffer
would receive credit for mitigating only
1 acre of wetlands impact.)
The Corps must make its mitigation
decisions based on the information
available and based on the significant
knowledge and understanding of the
aquatic environment that the district
staff of biologists and ecologists possess.
The Corps can not always quantify
precise offset determinations, and it
would not make sense to do so in the
nationwide permit program because
project specific impacts are generally
limited to less than one half acre, and
are often one tenth of an acre or less.
A few commenters agreed with using
vegetated buffers as mitigation, but
opposed using upland buffers as
additional compensatory mitigation,
suggesting that they are neither a
wetland nor aquatic resource, and
therefore it is not justifiable to include
a requirement of upland vegetated
buffers as additional compensatory
mitigation. The commenters suggested
that if the Corps normally includes a
requirement for establishment,
maintenance, and legal protection of
vegetated buffers, then the total
mitigation requirement shall not exceed
that necessary for wetland impacts. (i.e.
if total proposed wetland impacts are 1 ⁄2
acre and one-for-one mitigation is
required, then the total amount of
mitigation that should be required,
inclusive of any upland buffers, should
not exceed 1 ⁄2 acre). One commenter
suggested that the Corps establish a
maximum percentage of overall
compensation that ‘‘alternative forms’’
of compensation (such as vegetated
buffers) may comprise.
As stated above, the Corps is
committed to a holistic watershed
approach to mitigation and that cannot
be accomplished with rigid quantitative
requirements. The Corps regulates the
entire aquatic environment, not just
wetlands. Mitigation must consider the
entire aquatic ecosystem as well. The
Corps has and will continue to
programmatically require greater than
one-for-one acreage of wetland
mitigation to account for differences in
function and values, temporal losses
and potential failure of mitigation. The
Corps will continue to require greater
than one-for-one acreage mitigation for
wetlands programmatically, but some
projects should not and will not require
such mitigation, because it is not what
is best for the aquatic environment.
One commenter stated that upland
(riparian) buffers could be used as
mitigation for stream or other nonwetland
impacts, but should not be
allowed to compensate for wetlands.
Another commenter stated that the use
of upland buffers as compensatory
mitigation is acceptable, provided that it
is at the option of the permittee and that
the amount of land required for
mitigation is proportionate to the
impacts.
The Corps will require mitigation for
permitted impacts based on a watershed
approach and what is best for the
aquatic ecosystem in that watershed.
This approach will often involve a mix
of vegetated buffers and other wetland
mitigation. In some cases it will involve
only one type of mitigation. In all cases,
mitigation will be based on what is best
for the overall aquatic environment in
the particular watershed involved. The
Corps always tries to ensure that
mitigation requirements are
proportionate to impacts, though the
areas affected may be greater or less
depending on site-specific
circumstances.
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One commenter cautioned that
incorporating vegetated buffers as
mitigation measures may prove
problematic, especially if a particular
organism relies on vegetated buffer
habitat that is injurious to another
organism using the same aquatic system.
The Corps recognizes this concern. It
is one example of why the Corps must
use its professional judgment based on
a holistic watershed approach to
determine appropriate mitigation.
One commenter warned that,
vegetated buffers present a promising
tool with real benefits to water quality
and public resource, but are not always
compatible with existing functioning
federally authorized flood protection
systems. In some instances, they may
reduce channel capacities and conflict
with maintenance activities; in others,
they may improve flow.
The Corps will consider the aquatic
environment and the practicability of
requiring vegetative buffers. The Corps
will not require vegetative buffers where
it would have adverse effects on projects
such as flood control projects.
Several commenters stated that
guidelines and clarification on the
appropriate use of non-wetland
vegetated buffers as mitigation for
impacts to wetlands should be
developed—perhaps by the Corps and
other appropriate natural resource
agencies, or through some form or
rulemaking—prior to extending them
credit as compensatory mitigation. A
few commenters stated that the Corps
should develop guidelines to support
the need to establish buffers and
standards and criteria for determining
appropriate buffer types and widths
based on intended benefit, adjacent land
use, density of vegetative cover, etc.,
and that this documentation should be
put forth for public comment. One
commenter stated that the current
guidance regarding upland vegetated
buffers is lax, suggesting little other than
prohibition of using mowed lawns and
encouraging use of native vegetation. As
such, golf course roughs, where the
height of vegetation is actively managed,
and areas subject to human disturbance
could be proposed as compensatory
mitigation for the loss of wetlands.
Similarly, landscaped areas of
development projects could be proposed
as compensatory mitigation as well.
The Corps can not establish detailed
guidelines for vegetated buffers on a
nationwide basis. No such guidance
exists for wetland mitigation either.
Such detailed guidance for wetland
mitigation would not be sensible just as
detailed guidance for vegetated buffers
would not make sense. The Corps has
adequate protections in the condition to
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ensure that vegetated buffer mitigation
will be properly used by the districts.
As stated many times above, the Corps
is taking a holistic watershed approach
to mitigation which relies on the
exceptional expertise of our 1,150
district employees, who are
predominantly biologists and ecologists.
Corps Preference for Restoration Over
Preservation
Many commenters stated that the
preference for restoration of wetland
impacts over preservation must be
maintained. Several commenters
indicated that restoration should be the
preferred option, since, for certain, a net
loss of wetlands will always occur when
preservation is chosen as mitigation.
One commenter stated that preservation
does not necessarily ensure replacement
of functions and values of lost wetlands.
A couple of commenters stated that
many of the existing wetlands that are
appropriate for preservation are already
protected by law. Therefore,
preservation should only be used in
extreme situations, such as when the
wetlands are under threat or not
afforded protection (isolated wetlands),
or when the wetlands to be preserved
are large or are of high significance. One
commenter suggested that if and when
preservation of high quality wetlands is
preferred, it should force the project to
be reviewed under an individual permit
instead of a nationwide permit, allowing
the state, the public and other resource
agencies to review the proposed project.
The Corps is increasingly taking a
holistic watershed approach to
mitigation of impacts in our Regulatory
Program, including the nationwide
permit program. The Corps district
experts must have the flexibility in
policy to make decisions that support a
holistic watershed approach.
Preservation is often a very important
component of a watershed approach.
Some of the most important and high
functioning wetlands are potentially
subject to many activities that are not
regulated by the Corps or any other
governmental body. Therefore, absent
the protection by preservation of these
high value areas through mitigation they
will be degraded over time. Restoration
is the main method of mitigating
impacts to the aquatic environment
permitted by the Corps and it will
continue to be the primary mitigation
approach. The Corps has slightly
modified the wording in paragraph (c)
of this general condition from what was
proposed to clarify that this preference
for restoration applies regardless of
what wetlands mitigation ratio is
required at a specific site.
2067
However, preservation is also a very
important tool in the Corps ability to
mitigate impacts on a holistic watershed
basis. Protection of the aquatic
environment through preservation of
high value aquatic areas is critical to
protecting the nation’s aquatic
ecosystems. The view that preservation
is not appropriate because the areas are
not ‘‘new’’ is shortsighted and has
proven to be mistaken because of the
significant impacts to wetlands that are
not protected through preservation,
particularly when the preservation
includes adjacent uplands and open
waters as a preserved matrix of
environmental assets that work together
to produce high value habitat. However,
the Corps recognizes that preservation
does not provide new acres and thus
cannot compensate for wetlands loss on
an acreage basis. As noted above, the
Corps will instruct district offices not to
include preservation in their
documentation of compliance with the
minimum one-for-one district level
mitigation requirement.
A few commenters stated that
preservation of wetlands is preferable to
restoration. The evolving emphasis on
watershed assessment and protection
underscores the need and importance of
preserving aquatic ecosystems. One
commenter pointed out that if sites are
established, and functioning well, it
would appear that preserving them
should be critical in attempts to
maintain the present and future value of
wetlands. If vegetated buffers, or the
enhancement of uplands, adjoining
wetlands are important enough to be
considered as mitigation credit, then
preservation of existing wetlands
adjacent to a mitigation site should be
at least similarly credited.
We agree with these commenters to
the extent that they identify the
importance of a holistic approach to
mitigation. However, as noted above,
restoration will continue to be the
primary mitigation approach, and
preservation will not be counted in the
district-level one-for-one mitigation
requirement.
One commenter opposed the use of
preservation of onsite avoided wetlands
or wetland buffers as compensatory
mitigation since it credits the avoidance
of impacts, which is the first step in
mitigation sequencing, a second time in
the form of compensation for
unavoidable impacts. The commenter
did state that off-site preservation was
acceptable, however, since it did not
conflict with the on-site mitigation
sequencing process.
Whether the Corps requires
preservation and gives project-level
mitigation credit for onsite or offsite
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2068 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
preservation depends on the size,
functional value and relationship of the
area to other aquatic areas. For example,
preservation of an extremely high value
wetland on the border of a permitted
development site where that high value
wetland is part of a larger high value
wetland system is a very positive
mitigation approach in terms of holistic
watershed protection of the aquatic
environment, particularly if it increases
the chances that the entire system will
be preserved. On the other hand,
preservation of a small moderate value
wetland that will be surrounded by
paved parking areas and may lose its
hydrology because of overall site
development may not make
environmental sense, on-site or off-site.
Several commenters stated that there
should be no established Federal
preference of either restoration or
preservation, and both are equally
appropriate. One commenter suggested
that a preference for restoration over
preservation could result in an
opportunity to preserve a highly
functioning wetland being overlooked.
Other commenters urged greater
acceptance of preservation when the
area to be preserved is of high value,
subject to significant impacts, and
included in a wider planning
framework, and restoration/creation are
not feasible and wetlands are in
abundance, locally, compared to other
important resources. Several of the
commenters stated that the decision to
use either preservation or restoration (or
a combination of the two) should be
flexible and left up to the individual
Corps Districts to decide on a case-bycase,
local or watershed basis,
depending on which type would be
most appropriate.
We agree with these commenters.
One commenter stated that there
should be guidance showing the need
for preservation before it is used over
any other type of mitigation for wetland
losses.
This does not support the holistic
watershed approach the Corps is
working to establish, and would not be
a good use of Corps resources. We want
Corps districts to focus their limited
resources on what makes sense for the
aquatic environment in a particular
watershed.
One commenter stated that the use of
either preservation or restoration is
contrary to the ‘‘no net loss’’ policy and
the goal of the CWA to restore and
maintain the physical, chemical and
biological integrity of the Nations
waters. The General Condition should
require that project impacts be fully
offset unless the applicant demonstrates
that full offset is impracticable. At a
minimum, mitigation must offset all
impacts that are more than minimal,
both individually and cumulatively.
The Corps has and will continue to
require mitigation that is necessary to
reduce project impacts to the minimal
adverse effect level. The Corps will
continue to meet the no overall net loss
goal for wetlands because most wetland
mitigation is at a greater than one for
one acreage basis to ensure that the
functional impacts authorized are offset
by the mitigation. In addition, districts
will be required to document at least
one-for-one mitigation at the district
level.
One commenter stated that the
preference for restoration over
preservation affects the entire Section
404 program and the preamble of the
NWPs is not the appropriate forum to
discuss and change that policy.
The Corps does not agree that it is
inappropriate to discuss this policy, as
it relates to the implementation of the
NWP program. The Corps is not
proposing to change this policy. The
preference for restoration over
preservation is preserved in the
language of paragraph (c) of GC 19.
Mitigation Bonding
Several commenters stated that unless
a comparable bonding program exists
within the Districts, bonding of
mitigation measures under NWPs
should be established that obligate a
permittee to complete the mitigation,
bond the mitigation activity and success
period, and allow the Corps to execute
the bond in the event of forfeiture.
The Corps is currently reviewing
guidance which addresses bonding and
otherwise protecting mitigation sites
and ensuring they will be successful.
The principles in that guidance will
apply to the nationwide permit
program. Bonding is just one tool
available to the Corps in its efforts to
ensure that required mitigation is
established and is successful.
Other Comments on General Condition
19
Several commenters suggested the
Corps should require natural resource
agency review of all mitigation plans,
especially mitigation proposing the use
of vegetated buffers. One commenter
requested rewording of General
Condition19c to read* * *’’ unless the
District Engineer determines [in
consultation with the appropriate
natural resource agencies through a PCN
coordination process such as that
described in General Condition 13,] that
some other form of mitigation* * *’’
The Corps does not agree. We believe
that such a change would result in
excessive review that would not result
in benefits for the aquatic environment.
The commenting agencies do not have
the staff necessary to evaluate all such
projects either. The Corps has the
technical expertise and capability to
make these determinations. Where
appropriate, the Corps does and will
continue to consult with other agencies.
Many commenters stated that
numerous studies from around the
country, including recent studies
conducted by the National Academy of
Science and General Accounting Office,
showed that mitigation is not fully
successful, and does not compensate for
wetlands lost to permitted fills.
Therefore, reducing mitigation
requirements that already aren’t
working is unsupportable.
The Corps is not reducing the
mitigation requirements necessary in
the nationwide permit program. The
requirement remains that mitigation
adequate to ensure no more than
minimal adverse effects on the aquatic
environment will be required. The
Corps agrees with the NRC/NAS report
that we must improve the success of
mitigation. One method the Corps has
used, and will continue to use, to deal
with the failure of some mitigation is
higher ratios of mitigation for most
impacts. Consolidating mitigation into
larger sites through mitigation banks, in
lieu fees, and other large mitigation
areas as well as protecting a matrix of
environmental assets in mitigation areas
including wetlands, open waters and
uplands will also serve to improve
mitigation in the long term.
Several commenters indicated that the
Corps must improve data collection
from mitigated projects and reporting
cumulative wetland losses to evaluate
and ensure that impacts to waters of the
US have been minimized and the goals
of the program achieved.
We agree that we need to improve our
data collection and tracking of
mitigation and will soon bring a new
data system on line to facilitate such
tracking. By better documenting the
mitigation requirements included in
NWPs and tracking the fulfillment of
these requirements, the Corps will better
ensure that the impacts authorized are
offset to the level that no more than
minimal adverse effects will result.
One commenter stated that the
proposal continues to elevate one form
of mitigation—compensation—above all
others by automatically requiring that
type of mitigation in every instance.
Thus, the program fails to consider
whether avoidance and/or minimization
has been sufficiently incorporated into a
project to the maximum extent
necessary to ensure that adverse effects
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to the aquatic environment are minimal.
Then, in a gesture toward easing the
burden of compensatory mitigation, the
Corps allows different types of
compensation, such as vegetated
buffers, to be used in lieu of providing
one-for-one wetlands compensation.
The Corps should treat ALL forms of
mitigation uniformly, not just all forms
of compensation, especially those such
as the use of upland buffers which are
not subject to regulation or jurisdiction.
This omission removed any incentive to
incorporate avoidance and
minimization efforts. The Corps is urged
to remove preferential treatment given
to compensatory mitigation, over
avoidance and minimization, by
deleting all mandatory compensation
requirements.
We disagree with these comments
because deleting all compensatory
mitigation requirements would
substantially reduce protection of the
aquatic environment by reducing
mitigation, much of which is very
successful. The Corps will instead take
a watershed approach to mitigation, as
discussed above.
One commenter stated the acreage of
fill placed in waters of the U.S. to
construct compensatory mitigation must
be included in the calculation of acreage
and impacts. These fills should not be
discounted, because compensatory
mitigation does not always succeed, and
can result in the conversion of one type
of water of the U.S. to another.
The Corps considers the overall
impacts of a proposed project. Fill in
waters of the US involved with
mitigation projects is very small in
volume in essentially all cases. If there
were a case where potentially
substantial impacts would be involved
in the mitigation project the Corps will
consider that impact. However, the
acreage used to construct compensatory
mitigation projects is not counted in the
acreage limit of the NWPs.
A few commenters stated that in-kind
mitigation must be mandatory for all
unavoidable impacts to wetlands, nonwetland
aquatic habitats, and terrestrial
habitats.
We disagree. The Corps will take a
watershed and holistic approach when
requiring mitigation.
A few commenters stated that
mitigation ratios recommended by EPA
Region 4 must be adopted as the
absolute minimum ratios for wetland
mitigation.
The Corps disagrees with nationwide
mandatory ratios on a permit-specific
basis although, as noted above, ratios
exceeding one-for-one are often
required. The underlying requirement
for mitigation in the nationwide permit
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
program is that the mitigation reduces
the permitted adverse effects on the
aquatic environment to the minimal
adverse effect level.
A few commenters stated that there
should be a requirement for detailed
mitigation plans as part of each PCN,
which at a minimum identify specific
mitigation sites, detailed mitigation
development/management plans,
assurances against mitigation failure;
success criteria, detailed monitoring
plans, details of protection afforded to
guarantee functions replaced by the
mitigation will be protected and
maintained in accordance with
objectives, and identification of the
party responsible for the mitigation.
We believe we have required the
proper level of documentation for PCNs
submitted to the Corps. If the Corps
determines on a case by case basis that
additional information is necessary to
ensure that any permitted impacts will
be offset by mitigation the district can
require such information.
Several commenters stated that
mitigation buy downs to meet the
404(e)(1) minimal effects requirement
should be prohibited in the context of
NWPs. A couple of commenters
questioned the capability of any type of
mitigation to compensate for the
complete loss of an aquatic
environments. One commenter pointed
out that there is significant scientific
evidence, the validity of which is
recognized by the Corps and other
federal agencies,which shows that
wetlands mitigation often fails, meets
mixed success, or does not replace lost
functions/values. Thus, mitigation
cannot assure minimal effects. The
commenter adds that if minimal effects
are not achieved through the use of
NWPs, then their use should be
prohibited since they cannot satisfy the
CWA’s requirement of minimal
cumulative adverse effects. One
commenter suggested that any activities
having adverse impacts sufficient to
warrant compensatory mitigation be
converted to an individual permit.
However, another commenter stated that
some compensatory mitigation plans
which have been reviewed under
individual permit public notice were
inappropriate for the resources lost, and
would not adequately replace lost
functions and values, and therefore they
see no reason to believe that
compensatory mitigation proposed for
NWPs—which lacks public review and
agency comment—would be any better.
The Corps understands that some
mitigation projects fail. We are working
to improve the success of mitigation we
require. The test for mitigation for
adverse effects on the aquatic
2069
environment under the nationwide
permit program is to ensure no more
than minimal adverse effects after
considering the required mitigation. For
general permits, by regulation, impacts
to the aquatic environment are to be
avoided to the extent practicable on the
project site. These regulations are not
being changed. General Condition 19
deals with mitigation when it is
required, after impacts to aquatic areas
have been avoided to the extent
practicable.
One commenter suggested that
language regarding compensatory
mitigation be narrowed to prevent its
use in open water habitats in navigable
public waterways. The commenter
states that there is an unwarranted
assumption that compensatory
mitigation can be relied on to
compensate for alteration or destruction
of naturally occurring aquatic
ecosystems, including open waters. The
commenter adds that habitats should
not be tradeable; each is unique and
artificial habitats are not as good as the
real thing. Eliminating open water by
constructing wetlands or altering the
habitat as mitigation can destroy species
which are dependent upon open water.
These comments identify one of the
many reasons that the Corps is changing
its approach in Condition 19 to more
effectively allow the Corps expert
biologists and ecologists to make project
specific decisions on impacts to be
authorized and mitigation that will be
required.
One commenter suggested that NWPs
should require mandatory mitigation for
all unavoidable impacts to non-wetland
aquatic habitats and to terrestrial
habitats since these areas have
significant ecological value as do
wetlands.
The Corps regulates the aquatic
environment not uplands. We may
require upland vegetated buffers as
mitigation to the extent the vegetated
upland buffers to open waters protect or
enhance aquatic functions and habitat.
The Corps agrees we need to more
effectively mitigate impacts permitted to
waters other than wetlands. That is
precisely why the Corps is modifying
Condition 19 to allow flexibility in
mitigation decisions that are holistic
and take a watershed approach.
One commenter stated that the Corps
should emphasize the importance of
accurate assessments and expressly
indicate whether it has taken into
account new data on mitigation
methods.
The Corps continually works to
improve its mitigation approaches at the
Corps district level. The Corps districts
are where the local technical expertise
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2070 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
resides and they continually adjust the
program based on new information.
One commenter stated that the Corps
should reassert its policy and preference
of utilizing mitigation banking versus
in-lieu-fee or other types of
compensation for mitigation in the
context of General permits.
The Corps needs to use all mitigation
options in its tool box, including
mitigation banks and in lieu fees. These
methods are extensively used and will
continue to be extensively used because
they are effective and simple for the
applicant.
One commenter stated that mitigation
bankers acknowledge financial
considerations and not always
ecological considerations in locating
mitigation banks. This does not ensure
that functions and values lost within a
local watershed will be replaced, a fact
acknowledged by the Corps in the last
version of the NWPs—mitigation banks
are usually constructed and maintained
by entrepreneurs, who locate mitigation
banks in areas where they believe the
established credits will sell quickly’’.
The Corps requires mitigation that
will offset the permitted adverse effects
on the aquatic environment. The Corps
identifies service areas for mitigation
banks based on reasonably focusing
mitigation in watersheds where impacts
are permitted. We will continue to
approve mitigation bank service areas in
a manner that recognizes the need to
offset impacts in the same watershed to
the extent practicable. The fact that
mitigation banks are designed to be
financially successful does not mean
that they will not also be ecologically
successful. On the contrary, ecological
success is a prerequisite for financial
success.
One commenter stated that the Corps
should prohibit the use of in-lieu-fee
mitigation since it does not ensure no
net loss of wetlands, and at best may
provide some protection for existing
wetlands. The time constraints of the
review and approval process for NWP’s
limits adequate analysis of this type of
mitigation. In the absence of meaningful
resource agency and public review, inlieu-fee
mitigation is not consistent with
the goals of the CWA of ‘‘restoring/
maintaining the chemical, biological
* * *’’
This commenter appears not to
understand in lieu fee programs
approved by the Corps. The majority of
in lieu fee mitigation involves some
type of restoration, creation or
enhancement of aquatic areas. Some of
the mitigation is preservation, but not
all mitigation under in lieu fees involves
only preservation. In lieu fee
arrangements are getting better as time
goes forward. The GAO report that
raised concerns about the Corps use of
in lieu fees was incomplete in that it
limited its in lieu fee program analysis
to in lieu fees programs that were in
place as of 1997, when the approach
was still very new. Substantial
improvement has occurred since 1997
in the Corps use of in lieu fees.
One commenter objected to any
changes and additions to mitigation
requirements after the environmental
documents have been completed and a
Record of Decision issued, stating that it
is a violation of Congress’ mandate for
streamlining as well as a violation of
NEPA and should be prohibited in the
permitting process.
The environmental documentation
will be finalized as we issue the
nationwide permits in final form. No
changes to the new permits will occur
after that, unless they are revised or
reissued following opportunity for
public comment.
One commenter indicated that offsite
mitigation greatly reduces overall
aquatic habitat quality and natural
functioning. Mitigated wetlands have
been demonstrated time after time to
‘‘show a decrease in native plant species
diversity’’, and are ‘‘not functionally
equivalent to reference sites’’ in terms of
‘‘flood retention, water quality
improvement and habitat provision.’’
The Corps will take a holistic
watershed approach to mitigating
impacts permitted. Onsite mitigation is
typically best for water quality measures
including vegetated buffers and
stormwater management. However,
onsite mitigation for loss of habitat,
such as wetlands is usually less
preferable to offsite. Moreover,
consolidated mitigation such as that in
mitigation banks and in lieu fee
operations is generally more successful
than project specific mitigation. All of
these principles are consistent with the
findings of the recently issued NRC/
NAS report. In fact, the changes to
General Condition 19, are intended to
facilitate the adoption of some of the
report’s recommendations, by moving
toward a watershed approach.
One commenter objected to the use of
in-lieu-fee agreements for compensatory
mitigation, especially in areas where
land prices are high and in-lieu fees
low. Money must sit in an account for
many years before any use can be made
of it, while the nation suffers temporal
loss of wetlands and the in-lieu-fee
cannot provide adequate compensation.
The Corps is improving its in lieu fee
arrangements to ensure that ecological
mitigation will occur within 2 years of
accepting funds from permittees.
A commenter stated that mitigation
should be required for any length of
piping or filling of streams covered by
NWP. The US has lost thousands of
miles of headwater and streams from the
landscape. It is time to recognize the
ecological services provided by these
ecosystems [in addition to wetland].
The proposed changes to General
Condition 19 are specifically designed
to improve our ability to consider and
properly mitigate impacts to streams.
We agree that too often in the past
stream impacts may have been
overlooked. Decisions on the level of
mitigation required by the Corps will be
made on a case-by-case basis by the
Corps districts.
The General Condition is adopted
with the wording clarifications
discussed above.
20. Spawning Areas. There were no
changes proposed to this General
Condition. However, one commenter
recommended that the statement
‘‘important spawning area’’ should be
rewritten to say ‘‘spawning areas that
support federally-listed or special status
fish’’. Another commenter agreed that
this General Condition 20 is acceptable
but stated that it would not sufficiently
protect the areas intended. This
commenter suggested that discharges
into spawning areas should be
prohibited year round and not just
during spawning season. The
commenter requested that the second
paragraph, which states ‘‘Activities that
result in the physical destruction of an
important spawning area are not
authorized’’ be changed to ‘‘Activities
that could result in the physical
destruction of an important spawning
area, up or downstream, are not
authorized’’.
We disagree with these comments. It
is not appropriate to narrow this
condition to cover only Federally-listed
or special status fish. General Condition
20 prohibits the physical destruction of
important spawning areas. However, it
does allow temporary effects provided
they occur outside of the spawning
season. We believe this adequately
protects such spawning areas and
ensures that there will be no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively.
The General Condition is adopted
without change.
21. Management of Water Flows. The
Corps proposed to revise the wording of
this General Condition to clarify that
normally detailed studies and
monitoring would not be required, but
may be required in appropriate cases.
Several commenters agreed with the
proposed clarification. One commenter
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supported the clarification but believed
the Corps is exceeding its authority by
regulating water flow and suggested the
Corps delete the requirement to
maintain preconstruction flow or clarify
how compliance with this requirement
will be judged. A few commenters
opposed the proposed clarification
because without flow information it will
be hard to determine if the impacts are
only minimal to the aquatic
environment, including indirect
impacts. One commenter recommended
that each applicant be required to
submit a written description of how the
requirements of General Condition 21
will be met. One commenter suggested
that General Condition 21 should state
that the Corps defers to state and local
authorities when local regulations are in
place.
Authorized activities or
improvements to aquatic systems
typically will cause deviation from preconstruction
flow conditions. NWPs
authorize only those activities that will
have no more than minimal adverse
effect on the aquatic system including
water flows. Typically, well-established
design features are included as part of
projects without a need for detailed
engineering studies. State or local
agencies often require these design
features. Consequently, we believe that
detailed studies and monitoring would
not normally be required by this
condition. Where appropriate, the Corps
will review projects to ensure that
design features that address flows are
included, such as limited
channelization, proper design for
culverts, and retention ponds, but
generally will not require detailed
studies of post-project flow. However, in
some cases, detailed studies may be
required where there is a potential for
substantial impacts. Compliance with
state and local flow management
requirements, where these exist, is
usually sufficient to satisfy this General
Condition.
The General Condition is adopted as
proposed.
22. Adverse Effects from
Impoundments. There were no changes
proposed to this General Condition. One
commenter stated that impacts
associated with impoundments result in
more than minimal impacts, should be
evaluated as an individual permit, and
General Condition 22 should be deleted.
We disagree. Some small
impoundments do not result in more
than minimal impacts. However, where
they do result in more than minimal
adverse effects to the aquatic
environment, individually or
cumulatively, an individual permit will
be required.
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
The General Condition is adopted
without change.
23. Waterfowl Breeding Areas. There
were no changes proposed to this
General Condition. Two commenters
suggested this condition be amended to
prohibit discharges into breeding areas
for migratory waterfowl as well as other
migratory birds.
The Corps believes this would place
an unreasonable and overly restrictive
limitation on this NWP and that the
condition, as worded, provides
sufficient protection of aquatic
resources.
The General Condition is adopted
without change.
24. Removal of Temporary Fills. There
were no changes proposed to this
General Condition. One commenter
suggested this condition be amended to
require any temporary fills be removed
in their entirety and affected areas
returned to their preexisting elevations
immediately upon removal of the fill.
The condition as stated requires that
the affected area be returned to
preexisting elevation concurrent with
the removal of the fill. We do not agree
that this condition should require
immediate restoration in all cases. Corps
districts can add a time period for when
the restoration to preexisting elevations
should take place, when necessary.
The General Condition is adopted
without change.
25. Designated Critical Resource
Waters. There were no changes
proposed to this General Condition. One
commenter in favor of General
Condition 25 suggested it be amended to
include ‘‘source waters used for
drinking water or ground water
recharge’’ in the definition of ‘‘critical
resource waters’’. The commenter added
that there should be no provision for
discretionary authority for discharges of
dredged or fill material into designated
critical resource waters or wetlands
within the NWP program.
Concerns regarding impacts to sources
for drinking water and ground water
recharge are more appropriately
addressed through regional conditioning
of the NWPs or case-specific review of
PCNs for specific and identified waters.
Division engineers can regionally
condition the NWPs to prohibit or limit
their use in such high value waters.
District engineers should continue to
exercise discretionary authority and
require individual permits for activities
proposed in such valuable waters when
they will result in more than minimal
adverse effects on the aquatic
environment.
One commenter recommended that
the Corps exempt utility activities
within designated critical resource
2071
waters affecting 1 ⁄2 acre or less from the
prohibition in General Condition 25
because utility projects have only
minimal impacts and should be allowed
under NWP 12 without requirement of
notification or consultation.
While utility line activities that
comply with NWP 12 normally do have
no more than minimal adverse effect on
the aquatic environment, individually
and cumulatively, we remain concerned
that this will often not be the case in
designated critical resource waters.
Therefore, unless there is evidence to
the contrary, we believe that the
restriction on NWP 12 should remain.
One commenter recommended the
title of General Condition 25 be changed
to ‘‘Critical Resource Waters’’. The
commenter also recommended that the
condition be changed to read
‘‘Discharges within or affecting Critical
Resource Waters, including wetlands
adjacent to those waters, are not
authorized under the NWP program
except as specified in National Wild and
Scenic Rivers, provided that the activity
complies with General Condition 7’’.
The Corps does not agree with the
suggested title change. In order to apply
this condition to critical waters those
waters need to be designated so the
Corps and the public know where the
condition is applicable. The Corps
continues to believe that an activity can
occur in designated critical habitat if it
is compliance with the Endangered
Species Act.
The General Condition is adopted
without change.
26. Fills Within the 100-year
Floodplain.
The Corps proposed to delete the
‘‘notification’’ requirement, to delete the
requirement to document that the
project meets Federal Emergency
Management Agency (FEMA) approved
requirements and to modify the
condition to require that all projects
authorized by the NWPs must comply
with any applicable FEMA approved
state or local floodplain management
requirements. In addition, we proposed
to remove the prohibitions in
paragraphs 26(a) and 26(b) for NWPs 12,
14, and 29, and the prohibition in 26(b)
for NWP 43. We also requested
comment on allowing projects to
proceed under this condition below the
headwaters where the project provides
additional flood storage.
Many commenters supported the
Corps proposal to remove the
notification requirement and the
requirement to document that the
project meets FEMA approved
requirements for fills within the 100year
floodplain. One commenter stated
that this revision would reduce
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2072 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
redundancy since they must comply
with E.O. 11988 for all structures
associated with roadway construction
and routinely provide documentation to
federal and state agencies for review. A
few commenters stated that the Corps is
beyond its statutory authority and the
existing documentation requirements
have done nothing to affect compliance
with FEMA approved floodplain
management requirements. One
commenter recommended that the
Corps delete the notification
requirement for NWP 12.
The Corps continues to believe that
the notification should be removed from
this condition. We agree that this
change would reduce some paper work
redundancy at various levels of
government while retaining the
restrictions on floodplain development.
We agree that the notification
requirement for NWPs under this
condition, including NWP 12, should be
removed.
Many commenters objected to the
change. One commenter stated that
documenting compliance with FEMA
approved requirements is very
important and strong motivation for
ensuring that projects meet local
floodplain regulations.
The Corps has found that requiring
applicants to document that they have
met FEMA approved requirements has
done little to change or enhance
compliance with these requirements.
We believe that a General Condition
clearly requiring that ALL permittees
comply with FEMA approved
requirements will be just as effective.
One commenter stated that the Corps
added additional wording without
providing proper notice in the preamble
of the notice and failed to provide the
legally required explanation for their
action. Specifically, the first sentence of
the current General Condition 26 states
that, ‘‘For purposes of this General
Condition, 100-year floodplains will be
identified through Federal Emergency
Management Agency’s (FEMA) Flood
Insurance Rate Maps or FEMA-approved
local floodplain maps’’, and the first
sentence of proposed General Condition
26 states that, ‘‘For purposes of this
General Condition, 100-year floodplains
will be identified through the existing
Federal Emergency Management
Agency’s (FEMA) Flood Insurance Rate
Maps or FEMA-approved local
floodplain maps.
The word ‘‘existing’’ was addressed
and discussed in the preamble of the
March 9, 2000, NWPs. The word
‘‘existing’’ was placed in the proposed
NWPs to clarify questions raised by
Corps personnel and the public.
One commenter stated that the Corps
should not rely on often out-of-date and
inaccurate floodplain maps and
suggested that General Condition 26
should apply to all 100-year floodplains,
including those not mapped by FEMA.
One commenter requested clarification
where no FEMA floodplain maps exist.
One commenter suggested that where no
FEMA maps exist, permits should
require applicants to obtain a
determination from a registered
hydrologist that their project is not
within the 100-year floodplain.
To effectively implement the
requirements of this General Condition
and to be consistent with other Federal
programs, 100-year floodplains will be
identified through the latest Flood
Insurance Rate Maps (FIRMs) published
by FEMA or FEMA-approved local
floodplain maps. We believe that these
maps are adequate for the purposes of
this General Condition. Further,
utilizing existing FIRMs and FEMAapproved
local floodplain maps
eliminates the additional burdens on
local governments or landowners that
existed in the proposed condition. If
there are no FIRMs or FEMA-approved
local floodplain maps available for the
area where the proposed work is
located, then the requirements of this
General Condition do not apply. In such
cases, the Corps will still consider the
impacts of proposed projects through
the PCN review process. In addition, we
believe that the prospective permittee
should not routinely be required to
incur the cost of having a licensed
professional engineer or hydrologist
certify whether or not the proposed
work is within a 100-year floodplain,
particularly considering the very small
scale of many permitted projects. Where
appropriate, the District Engineer can
require additional documentation on a
case-by-case basis.
Several commenters agreed with the
Corps proposal allowing DE’s the
discretion to approve projects in the
floodplain below the headwaters where
the project could improve flood storage.
One commenter agreed provided the
project complies with FEMA approved
requirements. One commenter stated
that floodplains are the best sites for
creating stormwater management
facilities. One commenter agreed and
stated that these types of activities and
facilities authorized under NWP 43
increase floodplain capacity. One
commenter suggested that if NWP 43 is
not removed from part (b) of General
Condition 26, the DE should be
authorized to waive this restriction on a
project specific basis. One commenter
requested that the Corps define
increased flood storage. One commenter
agreed with the Corps observation that
some activities authorized by NWP 39,
40, and 42–44 provide additional flood
storage capacity and recommends that
such projects below the head waters
should be allowed to proceed even if
they result in permanent above grade
fills.
The Corps has decided not to make
this change at this time. We need to
consider the specific language that
would be needed to effectively
implement this option. If we can
develop acceptable language, we will
consider proposing such a provision for
public notice and comment.
A dozen or so commenters objected to
the Corps proposal to remove NWP43
from part (b) of General Condition 26. A
couple of commenters stated that the
proposal could result in unacceptable
threats to life and property. One
commenter stated additional case-bycase
review will increase workload. The
commenter requested our rationale for
considering that NWP 43 projects such
as golf courses could provide additional
flood storage. One commenter cited that
other public interest factors should be
evaluated, which highlights the need for
completing a comprehensive PEIS. One
commenter stated that the change was
made without discussing it in the
preamble and with no explanation
supported by substantial evidence. This
commenter requested that the Corps
place NWP 43 back into part b of
General Condition 26. One commenter
stated that while providing additional
flood storage is generally beneficial,
there may be situations where such
actions could cause adverse hydraulic
or other impacts on the floodplain and
increase risk of damage to existing
floodplain properties. The commenter
suggests that the Corps allow discretion
on these projects only if the action is in
furtherance of a local stormwater or
watershed plan that has already
assessed the hydrologic and hydraulic
and other impacts of the action. One
commenter stated the prohibitions of
General Condition 26(a) and (b) do not
allow for NWP 43 to be authorized in a
floodplain but does allow projects to be
authorized in a floodway. The
commenter requested further
clarification and explanation.
We are keeping the prohibition on the
of NWP 43 in the floodplain below the
headwaters. However, allowing NWP 43
to be used for projects above the
headwaters but keeping them out of the
floodway would be counterproductive.
We believe that above the headwaters
the only feasible alternative will often
be to place them in the floodway.
General Condition requires that the
project avoid and minimize impacts to
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waters. For stormwater management
facilities this means keeping them out of
the waters and the floodway, if
practicable. Since the purpose of
stormwater management facilities is to
minimize flooding impacts, when they
must be located in the floodway, there
is no value added to the aquatic
environment by requiring a more costly
and lengthy individual permit process.
One commenter suggested that parts
(a) and (b) of General Condition 26
should be removed because the
requirements in pact (c) that the
applicant must comply would be a
sufficient safeguard. A few commenters
stated that General Condition 26 should
be removed because it is a duplication
of activities regulated by local
floodplain administrators. One
commenter stated that the 100-year
floodplain restrictions have increased
the time required for reviewing small
projects and leave the Corps less time
and resources to focus on projects that
may have significant impacts.
We continue to believe that the NWPs
listed in General Condition 26(a) and (b)
need to be restricted in the flood plain.
This provides an added measure of
protection of floodplains beyond that in
paragraph 26(c). There has been some
increase in workload due to the general
condition. We believe that the adopted
modifications to this General Condition
will reduce that workload somewhat,
which will allow the Corps to focus
those resources on areas where the
Corps can provide added protection to
the aquatic environment.
One commenter stated that General
Condition 26 is unnecessary and
duplicative of existing FEMA
requirements and would like the Corps
to provide any data to show any
correlation between wetlands loss and
flooding. One commenter suggested that
the Corps delete General Condition 26
for all permits and retain the flexibility
to authorize all projects resulting in
minimal adverse effects to proceed
under NWPs, regardless of where those
waters are located within the landscape.
The same commenter recommended
that any project located within a
floodplain that meets FEMA
requirements and the minimal impact
test should be allowed to proceed under
a NWP. One commenter stated that
General Condition 26 is redundant and
believes that the ban on permanent fills
should not extend to all waters,
specifically ephemeral streams above
headwaters.
We agree that we are using the FEMA
requirements that are applied to flood
insurance programs for projects that
occur in the flood plain. To this extent
General Condition 26 is somewhat
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
duplicative with that program.
However, we believe that General
Condition 26 plays an important role in
reinforcing the FEMA program to
minimize impacts to flood plains.
Several commenters objected to the
changes to General Condition 26 and
some commenters requested that the
Corps retain General Condition 26
without any changes. A couple of
commenters stated that the Corps must
consider other aspects of flood plains
such as water quality, ground water
recharge, fish, wildlife, plant resources,
and open space. Several commenters
objected to development within 100year
flood plain. A couple of
commenters objected to development
within the floodplain. One commenter
stated that the proposal would no longer
discourage above grade fills with the
floodplain. One commenter suggested
that NWPs should not be used in
counties designated as federal flood
hazard areas at least once in the past 10
years. One commenter objected to the
use of NWP 39, 40, 42, 43, and 44
within the 100-year floodplain. One
commenter suggested that NWPs located
within a floodplain should be required
to demonstrate that the project is
essential and has no alternative, the
public should be able to comment on
these types of projects, and they should
be reviewed as an individual permit.
One commenter stated that FEMA
approved requirements are inadequate
in many locations. A hand full of
commenters suggested that the Corps
should not allow the use of expedited
permits for any filling activities in the
entire 100-year floodplain.
We are very concerned with the loss
of life and property resulting from
unwise development in the floodplain.
The Corps has recently advocated the
strengthening of floodplain policy and
the use of non-structural measures to
reduce flood damages. We believe that
the changes to the NWP program
published today and two years ago will
play an important role in reducing
damages associated with development
in the floodplain. Specifically, we are
now requiring that ALL projects comply
with FEMA approved state and local
floodplain management requirements.
We will monitor carefully the
effectiveness of the new floodplain
condition to ensure that it has the
intended impact on reducing floodplain
development.
A couple of commenters agreed with
the Corps proposal to remove the
prohibitions of General Condition 26 (a)
and (b) from NWP 12, 14, and 29. One
commenter suggested that part (b) of
General Condition 26 should be
changed to allow the use of NWP 39, 40,
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42, or 43 with a PCN requirement. A few
commenters suggested that the Corps
retain prohibitions of General Condition
26 (a) and (b) for NWPs 12, 14, 29. One
commenter objected to removing the
prohibitions because it will increase
damage and destruction of aquatic
habitat and should not be permitted. A
few commenters agreed with the Corps
proposal to remove the prohibitions of
General Condition 26 (a) and (b) from
NWP 12 and 14. One commenter
recommended that the prohibitions of
General Condition 26 (a) and (b) should
be retained for NWP 29 because local
FEMA authorizes can come under
tremendous pressure to stretch the
regulations for certain projects. One
commenter agreed with the Corps
proposal to remove the prohibitions of
General Condition 26 (a) and (b) from
NWP 12 but wants to keep the
prohibitions for NWP 14 & 29. The
commenter stated that homes and other
structures create a potential for
increased downstream flooding due to
floodplain storage capacity and
transmission line projects occupy very
little volume of the 100-year floodplain
and would have only a minimal effect
on floodplain storage capacity. One
commenter suggested reducing the PCN
requirements and raising the acreage
thresholds for NWP 12. Numerous
commenters objected to the removal of
the prohibitions of General Condition
26(a) and 26(b) from NWP 29. A couple
of commenters objected because it could
result in unacceptable threats to life and
property. A couple of commenters
objected because it will have long-term
negative consequences, including the
potential to heighten downstream
flooding. One commenter stated that the
removal will make it easier to build
homes and developments in
floodplains, will place families at
greater risk, and cost taxpayers for the
inevitable cycle of flooding and
rebuilding. A couple of commenters
suggested that NWP 12 and 29, in light
of the requirements of General
Condition 21, continue to be subject to
all of the limitations in General
Condition 26. Given that these permits
are subject to General Condition 21, the
commenters stated concerns that
improper use of these permits could
adversely impact flooding, because
linear projects are likely to obstruct
flood flows while single-family housing
can result in cumulative losses of flood
storage. Both commenters stated that if
the Corps removes the prohibition of
General Condition 26(a) and (b) from
NWP 12 and 29, the Corps should
closely monitor activities authorized
under these permits over time to ensure
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2074 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
that cumulative impacts on flooding are
in fact minimal.
The Corps believes that it is
appropriate to remove NWPs 12, 14 and
29 from the prohibition below
headwaters and retain the prohibition
for NWPs 39, 40, 42, 43, and 44. The
permanent above grade fill authorized
by these NWPs are small and do not
occur very often especially in the same
watershed. Furthermore, these activities
must comply with the applicable FEMA
approved requirements. We believe that
activities authorized by these NWPs that
are in full compliance with FEMA
approved requirements will have no
more than minimal impacts on the flood
plain.
The General Condition is adopted as
proposed.
27. Construction Period.
We proposed a new General
Condition for activities for which the
Corps has received notification and a
construction schedule has been
reviewed, and verification issued by the
Corps. The condition will allow the
Corps to establish project completion
dates beyond the expiration of the
NWPs.
Several commenters stated that they
are in favor of this new condition. Some
commenters suggested that this
condition be applicable to all permit
authorizations that are currently in
effect including activities, which were
authorized under NWP 26 and are still
under the grandfather rule, and the
District Engineer should be urged to
authorize extensions providing
conditions have not changed
substantially. One commenter in favor
of General Condition 27 requested that
the Corps revise the condition to have
a definite extension period and remove
the language ‘‘reasonable period’’. One
commenter in favor of General
Condition 27 suggested that it be
amended specifically to include an
extension of the completion date for
multi-phase linear transportation
projects that have been verified and the
extension request should be submitted
30 days prior to the previously
approved completion date. One
commenter suggested that the life of the
permit be extended instead of adopting
General Condition 27. One commenter
stated that General Condition 27 will
reduce protection for listed species and
critical habitat. Two commenters
suggested that there is no need to extend
an NWP beyond the current expiration
date because the permittee is offered
sufficient time within the current time
parameters to complete an authorized
project. Two commenters stated that
General Condition 27 violates the terms
and conditions of the Clean Water Act
and this condition would establish
National policy on what is considered a
reasonable timeframe to complete a
minimal impact activity. One
commenter recommended that the
permit be modified to change the
extension date of those activities not
verified by the Corps from 12 months to
3 months and that all future projects be
verified by the Corps.
The NWPs authorize many activities
that have no more than minimal adverse
effects on the aquatic environment and
generally involve projects that need a
relatively short period for construction.
For some projects, obtaining a Corps
permit is one of the many steps
necessary to complete that project. It
may be two, three or more years after
obtaining the Corps permit before the
work can be completed. Under the
existing NWPs, if such projects obtain a
Corps NWP verification near the
expiration date of the NWP, the
permittee can not necessarily rely on
that permit to continue in effect through
the lengthy and costly process of
developing and planning the project.
This causes uncertainty regarding the
NWP authorization for the project
because the construction phase was not
completed before the NWP
authorization expired. Many logistical
issues may delay construction projects
sometimes for considerable periods. We
believe that the district office that is
reviewing the project is best able to
determine a reasonable time to complete
the work. Projects will vary in the
amount of time it takes to complete the
activity. We believe that general
condition 11 will ensure that NWP
authorized activities will comply with
the Endangered Species Act. The Crops
is not proposing to change the
completion period for unverified NWP
activities.
The General Condition is adopted as
proposed.
Definitions
There were no comments on the
definitions not listed below. There were
no changes proposed to those
definitions. Those definitions are
adopted without change.
Floodway. There were no changes
proposed to this definition. One
commenter believes that the definition
of floodways is very broad.
The Corps is using the definition of
flood way as it is determined by the
Federal Emergency Management Agency
for the purposes of the national flood
insurance program. This is the standard
that is most used by Federal agencies for
compliance with Executive Order
11988, Floodplain Management. It is the
definition of the term that is used in
general condition 26 of the NWPs. The
definition is adopted without change.
Independent Utility. There were no
changes proposed to this definition. One
commenter said that the definition of
the term ‘‘independent utility’’ should
exclude highway projects, because a
single project within the limits of the
particular logical termini may need to
be reviewed and authorized under the
same NWP multiple times.
We do not agree that the definition of
this term should exclude highway
projects. The Corps issues permits for a
highway to cross a waterbody not for the
highway itself. Normally the separate
crossings will have independent utility.
Only in rare circumstances would a
highway project be considered a single
and complete project as discussed in
Corps regulations at 33 CFR 330. The
terms and conditions of the NWPs, as
well as the PCN process and the ability
of district engineers to exercise
discretionary authority, will ensure that
highway projects authorized by NWPs,
such as NWP 14, result in minimal
adverse effects on the aquatic
environment. The definition is adopted
without change.
Loss of waters of the US. The Corps
proposed to clarify this definition,
consistent with the explanation
provided in the preamble to the March
9, 2000, NWPs Federal Register notice,
which reflects the current practice for
measuring the acreage and linear foot
impacts for determining compliance
with the threshold limits of the NWPs.
In other words, this clarification does
not change the current application of
this term.
One commenter noted that the Corps
proposed to change the definition of
‘‘loss of waters of the US’’ without
discussing the proposed change in
preamble of the August 9, 2001, Federal
Register notice. The commenter
suggested that the definition remain as
defined in the March 9, 2000, Federal
Register notice that announced the
issuance of new and modified NWPs to
replace NWP 26. The definition in the
March 9, 2000, notice stated that ‘‘* * *
the loss of stream bed includes the
linear feet of stream bed that is filled or
excavated.’’ The commenter suggested
explicitly including perennial,
intermittent, and ephemeral reaches in
this definition. One commenter stated
that the proposed change to limit the
definition of ‘‘loss of waters of the US’’
to perennial or intermittent stream
could weaken protection for ephemeral
streams.
The Corps believes that it is necessary
to clarify, that for determining the
acreage and linear thresholds for the
NWPs, ephemeral waters and streams
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are not included in the measurement.
This was previously explained on page
12881 of the March 9, 2000, preamble of
the NWPs, but not included in the
permit language. We now believe that it
is important to include this language in
the formal definition to avoid the
confusion that was created by having
this information in a Preamble
discussion only and not in the
definition itself. However, the Corps
had proposed modifying language that
we now believe did not fully and clearly
address the issue. Therefore we are
retaining the current language of this
definition, but adding a new sentence at
the end of the definition. The new
sentence will clearly state that for
measuring the threshold limitation only
will we not include impacts to
ephemeral waters. As with the proposed
change, the new sentence will not
change the current application of this
term.
Note that in excluding ephemeral
streams from the definition of ‘‘Loss of
Waters of the US’’ for the purposes of
determining compliance with NWP
acreage and linear foot limitations, we
are not suggesting that ephemeral
streams are not jurisdictional waters
under the Clean Water Act.
One commenter requested
clarification concerning the placement
of box culverts and the definition of
‘‘loss of the water of the US’’. This
commenter said that if the placement of
a culvert in waters of the US does not
change the bottom elevation, then the
activity should not be considered to
result in a loss of waters of the US.
The placement of a culvert in waters
of the United States would be
considered a loss of waters of the United
States, even if the activity would not
result in a change in the bottom
elevation. The definition of the term
‘‘loss of waters of the US’’ includes
activities that change the use of the
waterbody. The placement of a culvert
in a stream or other water of the United
States changes the use of that
waterbody, and therefore the area
changed by the installation of the
culvert would be considered when
determining whether the proposed work
exceeded the acreage limit of an NWP.
The definition is adopted with the
change discussed above.
Minimal effects. The Corps did not
propose to define this term. Several
commenters said that the term ‘‘minimal
effects’’ should be defined. One
commenter requested that the Corps
develop an evaluation criteria for
determining when an activity results in
more than minimal impacts.
We maintain our position that the
term ‘‘minimal effects’’, as used in the
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
context of the NWP program, cannot be
simply defined. Aquatic resource
functions and values vary considerably
across the country, and the minimal
adverse effects criterion for general
permit must be subjectively applied by
district engineers. Site-specific factors,
such as the quality of waters that may
be impacted by the proposed work, the
functions and values of those waters,
the geographic setting, and other factors
must be considered when determining
whether a particular activity results in
minimal adverse effects on the aquatic
environment. Further, in order to adopt
such a term the Corps would have to
publish a proposed definition for public
notice and comment. A definition of
this term is not being adopted.
Open water. There were no changes
proposed to this definition. One
commenter stated that the definition of
the term ‘‘open water’’ should be
refined. This commenter said that
sparsely vegetated areas of obligate
emergent vegetation still meet the
definition of a wetland and that
vegetated shallows are special aquatic
sites, such as seagrass beds. Sparsely
vegetated waters inhabited by emergent
vegetation may be identified as
wetlands, provided the area meets the
criteria required by the 1987 Corps of
Engineers Wetlands Delineation Manual
(Technical Report Y–87–1) and
associated guidance. Vegetated waters
inhabited by non-emergent vegetation,
such as beds of submersed aquatic
vegetation often found in estuaries,
lakes, and ponds, are considered open
waters for the purpose of the NWP
program.
The definition is adopted without
change.
Mechanized Land Clearing. The Corps
did not propose to define this term. One
commenter stated that the term
‘‘mechanized land clearing’’ is not
defined in the ‘‘Definitions’’ section of
the NWPs and recommends that the
Corps adds a definition for this term.
We do not agree that it is necessary
to include a definition of the term
‘‘mechanized land clearing’’ in the
NWPs. Matters related to mechanized
landclearing have been most recently
addressed in the changes to 33 CFR
323.2 that were published in the January
17, 2001, issue of the Federal Register
(66 FR 4550). A definition of this term
is not being adopted.
Stream Definitions. There were no
changes proposed to these definitions.
One commenter said that the definitions
of ephemeral and intermittent streams
do not address streams that may flow for
longer periods due to snowmelt,
artificial discharges, or other water
sources beside groundwater and
2075
precipitation. This commenter also
suggested that artificial water discharges
should not be used for the definitions of
ephemeral and intermittent streams and
if a water course is naturally ephemeral
and a water treatment plant outfall is
constructed, the watercourse should
continue to be defined as ephemeral for
Section 404 purposes.
When determining whether a
particular stream segment is perennial,
intermittent, or ephemeral, district
engineers should consider the source of
hydrology and the normal circumstance
of that hydrology. They will make these
determinations on a case-by-case basis.
We believe that these definitions are
sufficient for the Corps Regulatory
Program. The stream definitions are
adopted without change.
Executive Order 13212—Energy-related
Projects Issues
One commenter indicated that NWPs
have already been designed to expedite
permit processing and any new energy
related projects (i.e. drilling oil in the
Arctic National Wildlife Refuge,
construction of new nuclear power
plants, or electric power generation
dams) not covered by existing NWPs
should receive full consideration under
the National Environmental Policy Act
(Act) and not be authorized by NWPs.
One commenter said that states have
provisions similar to Executive Order
13212 and this commenter believes that
the current coordination process and the
expedited review process provided by
the NWPs are sufficient. One
commenter asserted that the expiration
of NWP 26 reduced the ability of the
Corps to efficiently authorize energyrelated
projects. This commenter
suggested that other NWPs be amended
to expedite energy-related projects or
revisit the development of a regional
permit for such activities.
President George W. Bush signed
Executive Order 13212 (66 FR 28357–
28358, May 22, 2001) on May 18, 2001,
directing new policy actions to expedite
the increased supply and availability of
energy to our Nation. This Executive
Order directs all agencies to take
appropriate actions, to the extent
consistent with applicable law, to
expedite projects that will increase
energy production, transmission, or
conservation, while maintaining
protection of the environment. We
believe that the NWP program provides
an opportunity to expeditiously
authorize energy-related activities that
have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. Energy
related projects that have more than
minimal individual and cumulative
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2076 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
adverse effects on the aquatic
environment cannot be authorized by
NWPs and will be expeditiously
reviewed under the individual permit
process.
Executive Order 13211—Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use (Statement of
Energy Effects)
The NWP Program is designed to
regulate certain activities having no
more than minimal adverse effects with
little, if any, delay or paperwork. NWPs
allow smaller, repetitive, low impact
projects with no more than minimal
adverse effects on the aquatic
environment, to be reviewed and
authorized in a shorter period than
larger complex projects that require an
Individual Permit review. Many energy
related projects, such as petroleum
pipelines and electric utility lines, are
expeditiously authorized by Nationwide
Permits. The Corps is adopting changes
to the Nationwide Permits that will
maintain the expedited process for these
energy related projects. Therefore, the
Corps concludes that the proposed
NWPs will not significantly affect the
supply, distribution, and use of energy
and fully complies with Executive
Order 13211.
Regional Conditioning of Nationwide
Permits
Concurrent with this Federal Register
notice, District Engineers are issuing
local public notices. In addition to the
changes to some NWPs and NWP
conditions required by the Chief of
Engineers, the Division and District
Engineers may propose regional
conditions or propose revocation of
NWP authorization for all, some, or
portions of the NWPs. Regional
conditions may also be required by state
Section 401 water quality certification
or for state coastal zone consistency.
District engineers will announce
regional conditions or revocations by
issuing local public notices. Information
on regional conditions and revocation
can be obtained from the appropriate
District Engineer, as indicated below.
Furthermore, this and additional
information can be obtained on the
internet at http://www.usace.army.mil/
where.html#State by clicking on the
appropriate District office.
Alabama
Mobile District Engineer, ATTN: CESAM–
OP–S, 109 St. Joseph Street, Mobile, AL
36602–3630
Alaska
Alaska District Engineer, ATTN: CEPOA–
CO–R, P.O. Box 898, Anchorage, AK
99506–0898
Arizona
Los Angeles District Engineer, ATTN:
CESPL–CO–R, P.O. Box 532711, Los
Angeles, CA 90053–2325
Arkansas
Little Rock District Engineer, ATTN:
CESWL–PR–R, P.O. Box 867, Little Rock,
AR 72203–0867
California
Sacramento District Engineer, ATTN:
CESPK–CO–R, 1325 J Street, Sacramento,
CA 95814–2922
Colorado
Albuquerque District Engineer, ATTN:
CESPA–OD–R, 4101 Jefferson Plaza NE,
Albuquerque, NM 87109–3435
Connecticut
New England District Engineer, ATTN:
CENAE–R, 696 Virginia Road, Concord,
MA 01742–2751
Delaware
Philadelphia District Engineer, ATTN:
CENAP–OP–R, Wannamaker Building, 100
Penn Square East Philadelphia, PA 19107–
3390
Florida
Jacksonville District Engineer, ATTN:
CESAJ–CO–R, P.O. Box 4970, Jacksonville,
FL 32202–4412
Georgia
Savannah District Engineer, ATTN: CESAS–
OP–F, P.O. Box 889, Savannah, GA 31402–
0889
Hawaii
Honolulu District Engineer, ATTN: CEPOH–
EC–R, Building 230, Fort Shafter,
Honolulu, HI 96858–5440
Idaho
Walla Walla District Engineer, ATTN:
CENWW–OD–RF, 210 N. Third Avenue,
Walla Walla, WA 99362–1876
Illinois
Rock Island District Engineer, ATTN:
CEMVR–OD–P, P.O. Box 2004, Rock
Island, IL 61204–2004
Indiana
Louisville District Engineer, ATTN: CELRL–
OP–F, P.O. Box 59, Louisville, KY 40201–
0059
Iowa
Rock Island District Engineer, ATTN:
CEMVR–OD–P, P.O. Box 2004, Rock
Island, IL 61204–2004
Kansas
Kansas City District Engineer, ATTN:
CENWK–OD–R, 700 Federal Building, 601
E. 12th Street, Kansas City, MO 64106–
2896
Kentucky
Louisville District Engineer, ATTN: CELRL–
OP–F, P.O. Box 59, Louisville, KY 40201–
0059
Louisiana
New Orleans District Engineer, ATTN:
CEMVN–OD–S, P.O. Box 60267, New
Orleans, LA 70160–0267
Maine
New England District Engineer, ATTN:
CENAE–R, 696 Virginia Road, Concord,
MA 01742–2751
Maryland
Baltimore District Engineer, ATTN: CENAB–
OP–R, P.O. Box 1715, Baltimore, MD
21203–1715
Massachusetts
New England District Engineer, ATTN:
CENAE–R, 696 Virginia Road, Concord,
MA 01742–2751
Michigan
Detroit District Engineer, ATTN: CELRE–RG,
P.O. Box 1027, Detroit, MI 48231–1027
Minnesota
St. Paul District Engineer, ATTN: CEMVP–
CO–R, 190 Fifth Street East, St. Paul, MN
55101–1638
Mississippi
Vicksburg District Engineer, ATTN: CEMVK–
OD–F, 4155 Clay Street, Vicksburg, MS
39183–3435
Missouri
Kansas City District Engineer, ATTN:
CENWK–OD–R, 700 Federal Building, 601
E. 12th Street, Kansas City, MO 64106–
2896
Montana
Omaha District Engineer, ATTN: CENWO–
OP–R, 106 South 15th Street, Omaha, NE
68102–1618
Nebraska
Omaha District Engineer, ATTN: CENWO–
OP–R, 106 South 15th Street, Omaha, NE
68102–1618
Nevada
Sacramento District Engineer, ATTN:
CESPK–CO–R, 1325 J Street, Sacramento,
CA 95814–2922
New Hampshire
New England District Engineer, ATTN:
CENAE–R, 696 Virginia Road, Concord,
MA 01742–2751
New Jersey
Philadelphia District Engineer, ATTN:
CENAP–OP–R, Wannamaker Building, 100
Penn Square East, Philadelphia, PA 19107–
3390
New Mexico
Albuquerque District Engineer, ATTN:
CESPA–OD–R, 4101 Jefferson Plaza NE,
Albuquerque, NM 87109–3435
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New York
New York District Engineer, ATTN: CENAN–
OP–R, 26 Federal Plaza, New York, NY
10278–0090
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, 106 South 15th Street, Omaha, NE
68102–1618
Ohio
Huntington District Engineer, ATTN:
CELRH–OR–F, 502 8th Street, Huntington,
WV 25701–2070
Oklahoma
Tulsa District Engineer, ATTN: CESWT—PE–
R, 1645 S. 101st East Ave, Tulsa, OK
74128–4609
Oregon
Portland District Engineer, ATTN: CENWP–
PE–G, P.O. Box 2946, Portland, OR 97208–
2946
Pennsylvania
Baltimore District Engineer, ATTN: CENAB–
OP–R, P.O. Box 1715, Baltimore, MD
21203–1715
Rhode Island
New England District Engineer, ATTN:
CENAE–R, 696 Virginia Road, Concord,
MA 01742–2751
South Carolina
Charleston District Engineer, ATTN: CESAC–
CO–P, P.O. Box 919, Charleston, SC
29402–0919
South Dakota
Omaha District Engineer, ATTN: CENWO–
OP–R, 106 South 15th Street, Omaha, NE
68102–1618
Tennessee
Nashville District Engineer, ATTN: CELRN–
OP–F, P.O. Box 1070, Nashville, TN
37202–1070
Texas
Ft. Worth District Engineer, ATTN: CESWF–
PER–R, P.O. Box 17300, Ft. Worth, TX
76102–0300
Utah
Sacramento District Engineer, ATTN:
CESPK–CO–R, 1325 J Street, CA 95814–
2922
Vermont
New England District Engineer, ATTN:
CENAE–R, 696 Virginia Road, Concord,
MA 01742–2751
Virginia
Norfolk District Engineer, ATTN: CENAO–
OP–R, 803 Front Street, Norfolk, VA
23510–1096
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
Washington
Seattle District Engineer, ATTN: CENWS–
OP–RG, P.O. Box 3755, Seattle, WA 98124–
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, MN
55101–1638
Wyoming
Omaha District Engineer, ATTN: CENWO–
OP–R, 106 South 15th Street, Omaha, NE
68102–1618
District of Columbia
Baltimore District Engineer, ATTN: CENAB–
OP–R, P.O. Box 1715, Baltimore, MD
21203–1715
Pacific Territories (American Samoa, Guam,
& Commonwealth of the Northern Mariana
Islands)
Honolulu District Engineer, ATTN: CEPOH–
EC–R, Building 230, Fort Shafter,
Honolulu, HI 96858–5440
Puerto Rico & Virgin Islands
Jacksonville District Engineer, ATTN:
CESAJ–CO–R, P.O. Box 4970, Jacksonville,
FL 32202–4412
Dated: January 4, 2002.
Approved:
Robert H. Griffin,
Brigadier General, U.S. Army, Director of Civil
Works.
Nationwide Permits, Conditions,
Further Information, and Definitions
A. Index of Nationwide Permits,
Conditions, Further Information, and
Definitions
Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting,
Enhancement, and Attraction Devices and
Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Maintenance
8. Oil and Gas Structures
9. Structures in Fleeting and Anchorage
Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained
Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Surface Coal Mining Activities
22. Removal of Vessels
2077
23. Approved Categorical Exclusions
24. State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Stream and Wetland Restoration
Activities
28. Modifications of Existing Marinas
29. Single-family Housing
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control
Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access and
Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and
Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Residential, Commercial, and
Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
Nationwide Permit General Conditions
1. Navigation
2. Proper Maintenance
3. Soil Erosion and Sediment Controls
4. Aquatic Life Movements
5. Equipment
6. Regional and Case-by-Case Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification
14. Compliance Certification
15. Use of Multiple Nationwide Permits.
16. Water Supply Intakes
17. Shellfish Beds
18. Suitable Material
19. Mitigation
20. Spawning Areas
21. Management of Water Flows
22. Adverse Effects from Impoundments
23. Waterfowl Breeding Areas
24. Removal of Temporary Fills
25. Designated Critical Resource Waters
26. Fills Within 100-year Floodplains
27. Construction Period
Further Information
Definitions
Best Management Practices (BMPs)
Compensatory Mitigation
Creation
Enhancement
Ephemeral Stream
Farm Tract
Flood Fringe
Floodway
Independent Utility
Intermittent Stream
Loss of Waters of the US
Non-tidal Wetland
Open Water
Perennial Stream
Permanent Above-grade Fill
Preservation
Restoration
Riffle and Pool Complex
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2078 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
Single and Complete Project
Stormwater Management
Stormwater Management Facilities
Stream Bed
Stream Channelization
Tidal Wetland
Vegetated Buffer
Vegetated Shallows
Waterbody
B. Nationwide Permits
1. Aids to Navigation. The placement
of aids to navigation and Regulatory
markers which are approved by and
installed in accordance with the
requirements of the U.S. Coast Guard
(USCG) (See 33 CFR, chapter I,
subchapter C part 66). (Section 10)
2. Structures in Artificial Canals.
Structures constructed in artificial
canals within principally residential
developments where the connection of
the canal to navigable water of the US
has been previously authorized (see 33
CFR 322.5(g)). (Section 10)
3. Maintenance. Activities related to:
(i) The repair, rehabilitation, or
replacement of any previously
authorized, currently serviceable,
structure, or fill, or of any currently
serviceable structure or fill authorized
by 33 CFR 330.3, provided that the
structure or fill is not to be put to uses
differing from those uses specified or
contemplated for it in the original
permit or the most recently authorized
modification. Minor deviations in the
structure’s configuration or filled area
including those due to changes in
materials, construction techniques, or
current construction codes or safety
standards which are necessary to make
repair, rehabilitation, or replacement are
permitted, provided the adverse
environmental effects resulting from
such repair, rehabilitation, or
replacement are minimal. Currently
serviceable means useable as is or with
some maintenance, but not so degraded
as to essentially require reconstruction.
This NWP authorizes the repair,
rehabilitation, or replacement of those
structures or fills destroyed or damaged
by storms, floods, fire or other discrete
events, provided the repair,
rehabilitation, or replacement is
commenced, or is under contract to
commence, within two years of the date
of their destruction or damage. In cases
of catastrophic events, such as
hurricanes or tornadoes, this two-year
limit may be waived by the District
Engineer, provided the permittee can
demonstrate funding, contract, or other
similar delays.
(ii) Discharges of dredged or fill
material, including excavation, into all
waters of the US to remove accumulated
sediments and debris in the vicinity of,
and within, existing structures (e.g.,
bridges, culverted road crossings, water
intake structures, etc.) and the
placement of new or additional riprap to
protect the structure, provided the
permittee notifies the District Engineer
in accordance with General Condition
13. The removal of sediment is limited
to the minimum necessary to restore the
waterway in the immediate vicinity of
the structure to the approximate
dimensions that existed when the
structure was built, but cannot extend
further than 200 feet in any direction
from the structure. The placement of rip
rap must be the minimum necessary to
protect the structure or to ensure the
safety of the structure. All excavated
materials must be deposited and
retained in an upland area unless
otherwise specifically approved by the
District Engineer under separate
authorization. Any bank stabilization
measures not directly associated with
the structure will require a separate
authorization from the District Engineer.
(iii) Discharges of dredged or fill
material, including excavation, into all
waters of the US for activities associated
with the restoration of upland areas
damaged by a storm, flood, or other
discrete event, including the
construction, placement, or installation
of upland protection structures and
minor dredging to remove obstructions
in a water of the US. (Uplands lost as
a result of a storm, flood, or other
discrete event can be replaced without
a Section 404 permit provided the
uplands are restored to their original
pre-event location. This NWP is for the
activities in waters of the US associated
with the replacement of the uplands.)
The permittee must notify the District
Engineer, in accordance with General
Condition 13, within 12-months of the
date of the damage and the work must
commence, or be under contract to
commence, within two years of the date
of the damage. The permittee should
provide evidence, such as a recent
topographic survey or photographs, to
justify the extent of the proposed
restoration. The restoration of the
damaged areas cannot exceed the
contours, or ordinary high water mark,
that existed before the damage. The
District Engineer retains the right to
determine the extent of the pre-existing
conditions and the extent of any
restoration work authorized by this
permit. Minor dredging to remove
obstructions from the adjacent
waterbody is limited to 50 cubic yards
below the plane of the ordinary high
water mark, and is limited to the
amount necessary to restore the preexisting
bottom contours of the
waterbody. The dredging may not be
done primarily to obtain fill for any
restoration activities. The discharge of
dredged or fill material and all related
work needed to restore the upland must
be part of a single and complete project.
This permit cannot be used in
conjunction with NWP 18 or NWP 19 to
restore damaged upland areas. This
permit cannot be used to reclaim
historic lands lost, over an extended
period, to normal erosion processes.
This permit does not authorize
maintenance dredging for the primary
purpose of navigation and beach
restoration. This permit does not
authorize new stream channelization or
stream relocation projects. Any work
authorized by this permit must not
cause more than minimal degradation of
water quality, more than minimal
changes to the flow characteristics of the
stream, or increase flooding (See
General Conditions 9 and 21). (Sections
10 and 404)
Note: This NWP authorizes the repair,
rehabilitation, or replacement of any
previously authorized structure or fill that
does not qualify for the Section 404(f)
exemption for maintenance.
4. Fish and Wildlife Harvesting,
Enhancement, and Attraction Devices
and Activities. Fish and wildlife
harvesting devices and activities such as
pound nets, crab traps, crab dredging,
eel pots, lobster traps, duck blinds, clam
and oyster digging; and small fish
attraction devices such as open water
fish concentrators (sea kites, etc.). This
NWP authorizes shellfish seeding
provided this activity does not occur in
wetlands or sites that support
submerged aquatic vegetation (including
sites where submerged aquatic
vegetation is documented to exist, but
may not be present in a given year.).
This NWP does not authorize artificial
reefs or impoundments and semiimpoundments
of waters of the US for
the culture or holding of motile species
such as lobster or the use of covered
oyster trays or clam racks. (Sections 10
and 404)
5. Scientific Measurement Devices.
Devices, whose purpose is to measure
and record scientific data such as staff
gages, tide gages, water recording
devices, water quality testing and
improvement devices and similar
structures. Small weirs and flumes
constructed primarily to record water
quantity and velocity are also
authorized provided the discharge is
limited to 25 cubic yards and further for
discharges of 10 to 25 cubic yards
provided the permittee notifies the
District Engineer in accordance with the
‘‘Notification’’ General Condition.
(Sections 10 and 404)
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6. Survey Activities. Survey activities
including core sampling, seismic
exploratory operations, plugging of
seismic shot holes and other
exploratory-type bore holes, soil survey,
sampling, and historic resources
surveys. Discharges and structures
associated with the recovery of historic
resources are not authorized by this
NWP. Drilling and the discharge of
excavated material from test wells for
oil and gas exploration is not authorized
by this NWP; the plugging of such wells
is authorized. Fill placed for roads, pads
and other similar activities is not
authorized by this NWP. The NWP does
not authorize any permanent structures.
The discharge of drilling mud and
cuttings may require a permit under
section 402 of the CWA. (Sections 10
and 404)
7. Outfall Structures and
Maintenance. Activities related to:
(i) Construction of outfall structures
and associated intake structures where
the effluent from the outfall is
authorized, conditionally authorized, or
specifically exempted, or are otherwise
in compliance with regulations issued
under the National Pollutant Discharge
Elimination System Program (Section
402 of the CWA), and
(ii) Maintenance excavation,
including dredging, to remove
accumulated sediments blocking or
restricting outfall and intake structures,
accumulated sediments from small
impoundments associated with outfall
and intake structures, and accumulated
sediments from canals associated with
outfall and intake structures, provided
that the activity meets all of the
following criteria:
a. The permittee notifies the District
Engineer in accordance with General
Condition 13;
b. The amount of excavated or
dredged material must be the minimum
necessary to restore the outfalls, intakes,
small impoundments, and canals to
original design capacities and design
configurations (i.e., depth and width);
c. The excavated or dredged material
is deposited and retained at an upland
site, unless otherwise approved by the
District Engineer under separate
authorization; and
d. Proper soil erosion and sediment
control measures are used to minimize
reentry of sediments into waters of the
US.
The construction of intake structures
is not authorized by this NWP, unless
they are directly associated with an
authorized outfall structure. For
maintenance excavation and dredging to
remove accumulated sediments, the
notification must include information
regarding the original design capacities
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
and configurations of the facility and
the presence of special aquatic sites
(e.g., vegetated shallows) in the vicinity
of the proposed work. (Sections 10 and
404)
8. Oil and Gas Structures. Structures
for the exploration, production, and
transportation of oil, gas, and minerals
on the outer continental shelf within
areas leased for such purposes by the
DOI, Minerals Management Service
(MMS). Such structures shall not be
placed within the limits of any
designated shipping safety fairway or
traffic separation scheme, except
temporary anchors that comply with the
fairway regulations in 33 CFR 322.5(l).
(Where such limits have not been
designated, or where changes are
anticipated, District Engineers will
consider asserting discretionary
authority in accordance with 33 CFR
330.4(e) and will also review such
proposals to ensure they comply with
the provisions of the fairway regulations
in 33 CFR 322.5(l). Any Corps review
under this permit will be limited to the
effects on navigation and national
security in accordance with 33 CFR
322.5(f)). Such structures will not be
placed in established danger zones or
restricted areas as designated in 33 CFR
part 334: nor will such structures be
permitted in EPA or Corps designated
dredged material disposal areas.
(Section 10)
9. Structures in Fleeting and
Anchorage Areas. Structures, buoys,
floats and other devices placed within
anchorage or fleeting areas to facilitate
moorage of vessels where the USCG has
established such areas for that purpose.
(Section 10)
10. Mooring Buoys. Non-commercial,
single-boat, mooring buoys. (Section 10)
11. Temporary Recreational
Structures. Temporary buoys, markers,
small floating docks, and similar
structures placed for recreational use
during specific events such as water
skiing competitions and boat races or
seasonal use provided that such
structures are removed within 30 days
after use has been discontinued. At
Corps of Engineers reservoirs, the
reservoir manager must approve each
buoy or marker individually. (Section
10)
12. Utility Line Activities. Activities
required for the construction,
maintenance and repair of utility lines
and associated facilities in waters of the
US as follows:
(i) Utility lines: The construction,
maintenance, or repair of utility lines,
including outfall and intake structures
and the associated excavation, backfill,
or bedding for the utility lines, in all
waters of the US, provided there is no
2079
change in preconstruction contours. A
‘‘utility line’’ is defined as any pipe or
pipeline for the transportation of any
gaseous, liquid, liquescent, or slurry
substance, for any purpose, and any
cable, line, or wire for the transmission
for any purpose of electrical energy,
telephone, and telegraph messages, and
radio and television communication
(see Note 1, below). Material resulting
from trench excavation may be
temporarily sidecast (up to three
months) into waters of the US, provided
that the material is not placed in such
a manner that it is dispersed by currents
or other forces. The District Engineer
may extend the period of temporary side
casting not to exceed a total of 180 days,
where appropriate. In wetlands, the top
6″ to 12″ of the trench should normally
be backfilled with topsoil from the
trench. Furthermore, the trench cannot
be constructed in such a manner as to
drain waters of the US (e.g., backfilling
with extensive gravel layers, creating a
french drain effect). For example, utility
line trenches can be backfilled with clay
blocks to ensure that the trench does not
drain the waters of the US through
which the utility line is installed. Any
exposed slopes and stream banks must
be stabilized immediately upon
completion of the utility line crossing of
each waterbody.
(ii) Utility line substations: The
construction, maintenance, or
expansion of a substation facility
associated with a power line or utility
line in non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, provided the activity
does not result in the loss of greater than
1 ⁄2-acre of non-tidal waters of the US.
(iii) Foundations for overhead utility
line towers, poles, and anchors: The
construction or maintenance of
foundations for overhead utility line
towers, poles, and anchors in all waters
of the US, provided the foundations are
the minimum size necessary and
separate footings for each tower leg
(rather than a larger single pad) are used
where feasible.
(iv) Access roads: The construction of
access roads for the construction and
maintenance of utility lines, including
overhead power lines and utility line
substations, in non-tidal waters of the
US, excluding non-tidal wetlands
adjacent to tidal waters, provided the
discharges do not cause the loss of
greater than 1 ⁄2-acre of non-tidal waters
of the US. Access roads shall be the
minimum width necessary (see Note 2,
below). Access roads must be
constructed so that the length of the
road minimizes the adverse effects on
waters of the US and as near as possible
to preconstruction contours and
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2080 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
elevations (e.g., at grade corduroy roads
or geotextile/gravel roads). Access roads
constructed above preconstruction
contours and elevations in waters of the
US must be properly bridged or
culverted to maintain surface flows.
The term ‘‘utility line’’ does not
include activities which drain a water of
the US, such as drainage tile, or french
drains; however, it does apply to pipes
conveying drainage from another area.
For the purposes of this NWP, the loss
of waters of the US includes the filled
area plus waters of the US that are
adversely affected by flooding,
excavation, or drainage as a result of the
project. Activities authorized by
paragraph (i) through (iv) may not
exceed a total of 1 ⁄2-acre loss of waters
of the US. Waters of the US temporarily
affected by filling, flooding, excavation,
or drainage, where the project area is
restored to preconstruction contours
and elevation, is not included in the
calculation of permanent loss of waters
of the US. This includes temporary
construction mats (e.g., timber, steel,
geotextile) used during construction and
removed upon completion of the work.
Where certain functions and values of
waters of the US are permanently
adversely affected, such as the
conversion of a forested wetland to a
herbaceous wetland in the permanently
maintained utility line right-of-way,
mitigation will be required to reduce the
adverse effects of the project to the
minimal level.
Mechanized land clearing necessary
for the construction, maintenance, or
repair of utility lines and the
construction, maintenance and
expansion of utility line substations,
foundations for overhead utility lines,
and access roads is authorized, provided
the cleared area is kept to the minimum
necessary and preconstruction contours
are maintained as near as possible. The
area of waters of the US that is filled,
excavated, or flooded must be limited to
the minimum necessary to construct the
utility line, substations, foundations,
and access roads. Excess material must
be removed to upland areas
immediately upon completion of
construction. This NWP may authorize
utility lines in or affecting navigable
waters of the US even if there is no
associated discharge of dredged or fill
material (See 33 CFR part 322).
Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13,
if any of the following criteria are met:
(a) Mechanized land clearing in a
forested wetland for the utility line
right-of-way;
(b) A Section 10 permit is required;
(c) The utility line in waters of the
US, excluding overhead lines, exceeds
500 feet;
(d) The utility line is placed within a
jurisdictional area (i.e., water of the US),
and it runs parallel to a stream bed that
is within that jurisdictional area;
(e) Discharges associated with the
construction of utility line substations
that result in the loss of greater than 1 ⁄10acre
of waters of the US; or
(f) Permanent access roads
constructed above grade in waters of the
US for a distance of more than 500 feet.
(g) Permanent access roads
constructed in waters of the US with
impervious materials. (Sections 10 and
404)
Note 1: Overhead utility lines constructed
over Section 10 waters and utility lines that
are routed in or under Section 10 waters
without a discharge of dredged or fill
material require a Section 10 permit; except
for pipes or pipelines used to transport
gaseous, liquid, liquescent, or slurry
substances over navigable waters of the US,
which are considered to be bridges, not
utility lines, and may require a permit from
the USCG pursuant to section 9 of the Rivers
and Harbors Act of 1899. However, any
discharges of dredged or fill material
associated with such pipelines will require a
Corps permit under Section 404.
Note 2: Access roads used for both
construction and maintenance may be
authorized, provided they meet the terms and
conditions of this NWP. Access roads used
solely for construction of the utility line must
be removed upon completion of the work and
the area restored to preconstruction contours,
elevations, and wetland conditions.
Temporary access roads for construction may
be authorized by NWP 33.
Note 3: Where the proposed utility line is
constructed or installed in navigable waters
of the US (i.e., Section 10 waters), copies of
the PCN and NWP verification will be sent
by the Corps to the National Oceanic and
Atmospheric Administration (NOAA),
National Ocean Service (NOS), for charting
the utility line to protect navigation.
13. Bank Stabilization. Bank
stabilization activities necessary for
erosion prevention provided the activity
meets all of the following criteria:
a. No material is placed more than the
minimum needed for erosion protection;
b. The bank stabilization activity is
less than 500 feet in length;
c. The activity will not exceed an
average of one cubic yard per running
foot placed along the bank below the
plane of the ordinary high water mark
or the high tide line;
d. No material is placed in any special
aquatic site, including wetlands;
e. No material is of the type, or is
placed in any location, or in any
manner, to impair surface water flow
into or out of any wetland area;
f. No material is placed in a manner
that will be eroded by normal or
expected high flows (properly anchored
trees and treetops may be used in low
energy areas); and,
g. The activity is part of a single and
complete project.
Bank stabilization activities in excess
of 500 feet in length or greater than an
average of one cubic yard per running
foot may be authorized if the permittee
notifies the District Engineer in
accordance with the ‘‘Notification’’
General Condition 13 and the District
Engineer determines the activity
complies with the other terms and
conditions of the NWP and the adverse
environmental effects are minimal both
individually and cumulatively. This
NWP may not be used for the
channelization of waters of the US.
(Sections 10 and 404)
14. Linear Transportation Projects.
Activities required for the construction,
expansion, modification, or
improvement of linear transportation
crossings (e.g., highways, railways,
trails, airport runways, and taxiways) in
waters of the US, including wetlands, if
the activity meets the following criteria:
a. This NWP is subject to the
following acreage limits:
(1) For linear transportation projects
in non-tidal waters, provided the
discharge does not cause the loss of
greater than 1 ⁄2-acre of waters of the US;
(2) For linear transportation projects
in tidal waters, provided the discharge
does not cause the loss of greater than
1 ⁄3-acre of waters of the US.
b. The permittee must notify the
District Engineer in accordance with
General Condition 13 if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than 1 ⁄10-acre of waters of the US;
or
(2) There is a discharge in a special
aquatic site, including wetlands;
c. The notification must include a
compensatory mitigation proposal to
offset permanent losses of waters of the
US to ensure that those losses result
only in minimal adverse effects to the
aquatic environment and a statement
describing how temporary losses will be
minimized to the maximum extent
practicable;
d. For discharges in special aquatic
sites, including wetlands, and stream
riffle and pool complexes, the
notification must include a delineation
of the affected special aquatic sites;
e. The width of the fill is limited to
the minimum necessary for the crossing;
f. This permit does not authorize
stream channelization, and the
authorized activities must not cause
more than minimal changes to the
hydraulic flow characteristics of the
stream, increase flooding, or cause more
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than minimal degradation of water
quality of any stream (see General
Conditions 9 and 21);
g. This permit cannot be used to
authorize non-linear features commonly
associated with transportation projects,
such as vehicle maintenance or storage
buildings, parking lots, train stations, or
aircraft hangars; and
h. The crossing is a single and
complete project for crossing waters of
the US. Where a road segment (i.e., the
shortest segment of a road with
independent utility that is part of a
larger project) has multiple crossings of
streams (several single and complete
projects) the Corps will consider
whether it should use its discretionary
authority to require an Individual
Permit. (Sections 10 and 404)
Note: Some discharges for the construction
of farm roads, forest roads, or temporary
roads for moving mining equipment may be
eligible for an exemption from the need for
a Section 404 permit (see 33 CFR 323.4).
15. U.S. Coast Guard Approved
Bridges. Discharges of dredged or fill
material incidental to the construction
of bridges across navigable waters of the
US, including cofferdams, abutments,
foundation seals, piers, and temporary
construction and access fills provided
such discharges have been authorized
by the USCG as part of the bridge
permit. Causeways and approach fills
are not included in this NWP and will
require an individual or regional
Section 404 permit. (Section 404)
16. Return Water From Upland
Contained Disposal Areas. Return water
from upland, contained dredged
material disposal area. The dredging
itself may require a Section 404 permit
(33 CFR 323.2(d)), but will require a
Section 10 permit if located in navigable
waters of the US. The return water from
a contained disposal area is
administratively defined as a discharge
of dredged material by 33 CFR 323.2(d),
even though the disposal itself occurs
on the upland and does not require a
Section 404 permit. This NWP satisfies
the technical requirement for a Section
404 permit for the return water where
the quality of the return water is
controlled by the state through the
Section 401 certification procedures.
(Section 404)
17. Hydropower Projects. Discharges
of dredged or fill material associated
with (a) small hydropower projects at
existing reservoirs where the project,
which includes the fill, are licensed by
the Federal Energy Regulatory
Commission (FERC) under the Federal
Power Act of 1920, as amended; and has
a total generating capacity of not more
than 5000 kW; and the permittee
notifies the District Engineer in
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
accordance with the ‘‘Notification’’
General Condition; or (b) hydropower
projects for which the FERC has granted
an exemption from licensing pursuant
to section 408 of the Energy Security
Act of 1980 (16 U.S.C. 2705 and 2708)
and section 30 of the Federal Power Act,
as amended; provided the permittee
notifies the District Engineer in
accordance with the ‘‘Notification’’
General Condition. (Section 404)
18. Minor Discharges. Minor
discharges of dredged or fill material
into all waters of the US if the activity
meets all of the following criteria:
a. The quantity of discharged material
and the volume of area excavated do not
exceed 25 cubic yards below the plane
of the ordinary high water mark or the
high tide line;
b. The discharge, including any
excavated area, will not cause the loss
of more than 1 ⁄10-acre of a special
aquatic site, including wetlands. For the
purposes of this NWP, the acreage
limitation includes the filled area and
excavated area plus special aquatic sites
that are adversely affected by flooding
and special aquatic sites that are
drained so that they would no longer be
a water of the US as a result of the
project;
c. If the discharge, including any
excavated area, exceeds 10 cubic yards
below the plane of the ordinary high
water mark or the high tide line or if the
discharge is in a special aquatic site,
including wetlands, the permittee
notifies the District Engineer in
accordance with the ‘‘Notification’’
General Condition. For discharges in
special aquatic sites, including
wetlands, the notification must also
include a delineation of affected special
aquatic sites, including wetlands (also
see 33 CFR 330.1(e)); and
d. The discharge, including all
attendant features, both temporary and
permanent, is part of a single and
complete project and is not placed for
the purpose of a stream diversion.
(Sections 10 and 404)
19. Minor Dredging. Dredging of no
more than 25 cubic yards below the
plane of the ordinary high water mark
or the mean high water mark from
navigable waters of the US (i.e., Section
10 waters) as part of a single and
complete project. This NWP does not
authorize the dredging or degradation
through siltation of coral reefs, sites that
support submerged aquatic vegetation
(including sites where submerged
aquatic vegetation is documented to
exist, but may not be present in a given
year), anadromous fish spawning areas,
or wetlands, or the connection of canals
or other artificial waterways to
2081
navigable waters of the US (see 33 CFR
322.5(g)). (Sections 10 and 404)
20. Oil Spill Cleanup. Activities
required for the containment and
cleanup of oil and hazardous substances
which are subject to the National Oil
and Hazardous Substances Pollution
Contingency Plan (40 CFR part 300)
provided that the work is done in
accordance with the Spill Control and
Countermeasure Plan required by 40
CFR 112.3 and any existing state
contingency plan and provided that the
Regional Response Team (if one exists
in the area) concurs with the proposed
containment and cleanup action.
(Sections 10 and 404)
21. Surface Coal Mining Activities.
Discharges of dredged or fill material
into waters of the US associated with
surface coal mining and reclamation
operations provided the coal mining
activities are authorized by the DOI,
Office of Surface Mining (OSM), or by
states with approved programs under
Title V of the Surface Mining Control
and Reclamation Act of 1977 and
provided the permittee notifies the
District Engineer in accordance with the
‘‘Notification’’ General Condition. In
addition, to be authorized by this NWP,
the District Engineer must determine
that the activity complies with the terms
and conditions of the NWP and that the
adverse environmental effects are
minimal both individually and
cumulatively and must notify the
project sponsor of this determination in
writing. The Corps, at the discretion of
the District Engineer, may require a
bond to ensure success of the
mitigation, if no other Federal or state
agency has required one. For discharges
in special aquatic sites, including
wetlands, and stream riffle and pool
complexes, the notification must also
include a delineation of affected special
aquatic sites, including wetlands. (also,
see 33 CFR 330.1(e))
Mitigation: In determining the need
for as well as the level and type of
mitigation, the District Engineer will
ensure no more than minimal adverse
effects to the aquatic environment
occur. As such, District Engineers will
determine on a case-by-case basis the
requirement for adequate mitigation to
ensure the effects to aquatic systems are
minimal. In cases where OSM or the
state has required mitigation for the loss
of aquatic habitat, the Corps may
consider this in determining appropriate
mitigation under Section 404. (Sections
10 and 404)
22. Removal of Vessels. Temporary
structures or minor discharges of
dredged or fill material required for the
removal of wrecked, abandoned, or
disabled vessels, or the removal of man-
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2082 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
made obstructions to navigation. This
NWP does not authorize the removal of
vessels listed or determined eligible for
listing on the National Register of
Historic Places unless the District
Engineer is notified and indicates that
there is compliance with the ‘‘Historic
Properties’’ General Condition. This
NWP does not authorize maintenance
dredging, shoal removal, or riverbank
snagging. Vessel disposal in waters of
the US may need a permit from EPA
(see 40 CFR 229.3). (Sections 10 and
404)
23. Approved Categorical Exclusions.
Activities undertaken, assisted,
authorized, regulated, funded, or
financed, in whole or in part, by another
Federal agency or department where
that agency or department has
determined, pursuant to the Council on
Environmental Quality Regulation for
Implementing the Procedural Provisions
of the National Environmental Policy
Act (NEPA) (40 CFR part 1500 et seq.),
that the activity, work, or discharge is
categorically excluded from
environmental documentation, because
it is included within a category of
actions which neither individually nor
cumulatively have a significant effect on
the human environment, and the Office
of the Chief of Engineers (ATTN: CECW-
OR) has been furnished notice of the
agency’s or department’s application for
the categorical exclusion and concurs
with that determination. Before
approval for purposes of this NWP of
any agency’s categorical exclusions, the
Chief of Engineers will solicit public
comment. In addressing these
comments, the Chief of Engineers may
require certain conditions for
authorization of an agency’s categorical
exclusions under this NWP. (Sections
10 and 404)
24. State Administered Section 404
Program. Any activity permitted by a
state administering its own Section 404
permit program pursuant to 33 U.S.C.
1344(g)–(l) is permitted pursuant to
section 10 of the Rivers and Harbors Act
of 1899. Those activities that do not
involve a Section 404 state permit are
not included in this NWP, but certain
structures will be exempted by section
154 of Pub. L. 94–587, 90 Stat. 2917 (33
U.S.C. 591) (see 33 CFR 322.3(a)(2)).
(Section 10)
25. Structural Discharges. Discharges
of material such as concrete, sand, rock,
etc., into tightly sealed forms or cells
where the material will be used as a
structural member for standard pile
supported structures, such as bridges,
transmission line footings, and
walkways or for general navigation,
such as mooring cells, including the
excavation of bottom material from
within the form prior to the discharge of
concrete, sand, rock, etc. This NWP
does not authorize filled structural
members that would support buildings,
building pads, homes, house pads,
parking areas, storage areas and other
such structures. The structure itself may
require a Section 10 permit if located in
navigable waters of the US. (Section
404)
26. [Reserved]
27. Stream and Wetland Restoration
Activities. Activities in waters of the US
associated with the restoration of former
waters, the enhancement of degraded
tidal and non-tidal wetlands and
riparian areas, the creation of tidal and
non-tidal wetlands and riparian areas,
and the restoration and enhancement of
non-tidal streams and non-tidal open
water areas as follows:
(a) The activity is conducted on:
(1) Non-Federal public lands and
private lands, in accordance with the
terms and conditions of a binding
wetland enhancement, restoration, or
creation agreement between the
landowner and the U.S. Fish and
Wildlife Service (FWS) or the Natural
Resources Conservation Service (NRCS),
the National Marine Fisheries Service,
the National Ocean Service, or
voluntary wetland restoration,
enhancement, and creation actions
documented by the NRCS pursuant to
NRCS regulations; or
(2) Reclaimed surface coal mine
lands, in accordance with a Surface
Mining Control and Reclamation Act
permit issued by the OSM or the
applicable state agency (the future
reversion does not apply to streams or
wetlands created, restored, or enhanced
as mitigation for the mining impacts,
nor naturally due to hydrologic or
topographic features, nor for a
mitigation bank); or
(3) Any other public, private or tribal
lands;
(b) Notification: For activities on any
public or private land that are not
described by paragraphs (a)(1) or (a)(2)
above, the permittee must notify the
District Engineer in accordance with
General Condition 13; and
(c) Planting of only native species
should occur on the site.
Activities authorized by this NWP
include, to the extent that a Corps
permit is required, but are not limited
to: the removal of accumulated
sediments; the installation, removal,
and maintenance of small water control
structures, dikes, and berms; the
installation of current deflectors; the
enhancement, restoration, or creation of
riffle and pool stream structure; the
placement of in-stream habitat
structures; modifications of the stream
bed and/or banks to restore or create
stream meanders; the backfilling of
artificial channels and drainage ditches;
the removal of existing drainage
structures; the construction of small
nesting islands; the construction of open
water areas; the construction of oyster
habitat over unvegetated bottom in tidal
waters; activities needed to reestablish
vegetation, including plowing or discing
for seed bed preparation and the
planting of appropriate wetland species;
mechanized land clearing to remove
non-native invasive, exotic or nusiance
vegetation; and other related activities.
This NWP does not authorize the
conversion of a stream to another
aquatic use, such as the creation of an
impoundment for waterfowl habitat.
This NWP does not authorize stream
channelization. This NWP does not
authorize the conversion of natural
wetlands to another aquatic use, such as
creation of waterfowl impoundments
where a forested wetland previously
existed. However, this NWP authorizes
the relocation of non-tidal waters,
including non-tidal wetlands, on the
project site provided there are net gains
in aquatic resource functions and
values. For example, this NWP may
authorize the creation of an open water
impoundment in a non-tidal emergent
wetland, provided the non-tidal
emergent wetland is replaced by
creating that wetland type on the project
site. This NWP does not authorize the
relocation of tidal waters or the
conversion of tidal waters, including
tidal wetlands, to other aquatic uses,
such as the conversion of tidal wetlands
into open water impoundments.
Reversion. For enhancement,
restoration, and creation projects
conducted under paragraphs (a)(3), this
NWP does not authorize any future
discharge of dredged or fill material
associated with the reversion of the area
to its prior condition. In such cases a
separate permit would be required for
any reversion. For restoration,
enhancement, and creation projects
conducted under paragraphs (a)(1) and
(a)(2), this NWP also authorizes any
future discharge of dredged or fill
material associated with the reversion of
the area to its documented prior
condition and use (i.e., prior to the
restoration, enhancement, or creation
activities). The reversion must occur
within five years after expiration of a
limited term wetland restoration or
creation agreement or permit, even if the
discharge occurs after this NWP expires.
This NWP also authorizes the reversion
of wetlands that were restored,
enhanced, or created on prior-converted
cropland that has not been abandoned,
in accordance with a binding agreement
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etween the landowner and NRCS or
FWS (even though the restoration,
enhancement, or creation activity did
not require a Section 404 permit). The
five-year reversion limit does not apply
to agreements without time limits
reached under paragraph (a)(1). The
prior condition will be documented in
the original agreement or permit, and
the determination of return to prior
conditions will be made by the Federal
agency or appropriate state agency
executing the agreement or permit.
Before any reversion activity the
permittee or the appropriate Federal or
state agency must notify the District
Engineer and include the
documentation of the prior condition.
Once an area has reverted to its prior
physical condition, it will be subject to
whatever the Corps Regulatory
requirements will be at that future date.
(Sections 10 and 404)
Note: Compensatory mitigation is not
required for activities authorized by this
NWP, provided the authorized work results
in a net increase in aquatic resource
functions and values in the project area. This
NWP can be used to authorize compensatory
mitigation projects, including mitigation
banks, provided the permittee notifies the
District Engineer in accordance with General
Condition 13, and the project includes
compensatory mitigation for impacts to
waters of the US caused by the authorized
work. However, this NWP does not authorize
the reversion of an area used for a
compensatory mitigation project to its prior
condition. NWP 27 can be used to authorize
impacts at a mitigation bank, but only in
circumstances where it has been approved
under the Interagency Federal Mitigation
Bank Guidelines.
28. Modifications of Existing Marinas.
Reconfiguration of existing docking
facilities within an authorized marina
area. No dredging, additional slips, dock
spaces, or expansion of any kind within
waters of the US is authorized by this
NWP. (Section 10)
29. Single-family Housing. Discharges
of dredged or fill material into non-tidal
waters of the US, including non-tidal
wetlands for the construction or
expansion of a single-family home and
attendant features (such as a garage,
driveway, storage shed, and/or septic
field) for an Individual Permittee
provided that the activity meets all of
the following criteria:
a. The discharge does not cause the
loss of more than 1 ⁄4-acre of non-tidal
waters of the US, including non-tidal
wetlands;
b. The permittee notifies the District
Engineer in accordance with the
‘‘Notification’’ General Condition;
c. The permittee has taken all
practicable actions to minimize the onsite
and off-site impacts of the
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
discharge. For example, the location of
the home may need to be adjusted onsite
to avoid flooding of adjacent
property owners;
d. The discharge is part of a single
and complete project; furthermore, that
for any subdivision created on or after
November 22, 1991, the discharges
authorized under this NWP may not
exceed an aggregate total loss of waters
of the US of 1 ⁄4-acre for the entire
subdivision;
e. An individual may use this NWP
only for a single-family home for a
personal residence;
f. This NWP may be used only once
per parcel;
g. This NWP may not be used in
conjunction with NWP 14 or NWP 18,
for any parcel; and,
h. Sufficient vegetated buffers must be
maintained adjacent to all open water
bodies, streams, etc., to preclude water
quality degradation due to erosion and
sedimentation.
For the purposes of this NWP, the
acreage of loss of waters of the US
includes the filled area previously
permitted, the proposed filled area, and
any other waters of the US that are
adversely affected by flooding,
excavation, or drainage as a result of the
project. This NWP authorizes activities
only by individuals; for this purpose,
the term ‘‘individual’’ refers to a natural
person and/or a married couple, but
does not include a corporation,
partnership, or similar entity. For the
purposes of this NWP, a parcel of land
is defined as ‘‘the entire contiguous
quantity of land in possession of,
recorded as property of, or owned (in
any form of ownership, including land
owned as a partner, corporation, joint
tenant, etc.) by the same individual
(and/or that individual’s spouse), and
comprises not only the area of wetlands
sought to be filled, but also all land
contiguous to those wetlands, owned by
the individual (and/or that individual’s
spouse) in any form of ownership.’’
(Sections 10 and 404)
30. Moist Soil Management for
Wildlife. Discharges of dredged or fill
material and maintenance activities that
are associated with moist soil
management for wildlife performed on
non-tidal Federally-owned or managed,
state-owned or managed property, and
local government agency-owned or
managed property, for the purpose of
continuing ongoing, site-specific,
wildlife management activities where
soil manipulation is used to manage
habitat and feeding areas for wildlife.
Such activities include, but are not
limited to: The repair, maintenance or
replacement of existing water control
structures; the repair or maintenance of
2083
dikes; and plowing or discing to impede
succession, prepare seed beds, or
establish fire breaks. Sufficient
vegetated buffers must be maintained
adjacent to all open water bodies,
streams, etc., to preclude water quality
degradation due to erosion and
sedimentation. This NWP does not
authorize the construction of new dikes,
roads, water control structures, etc.
associated with the management areas.
This NWP does not authorize converting
wetlands to uplands, impoundments or
other open water bodies. (Section 404)
31. Maintenance of Existing Flood
Control Facilities. Discharge of dredge
or fill material resulting from activities
associated with the maintenance of
existing flood control facilities,
including debris basins, retention/
detention basins, and channels that
(i) were previously authorized by the
Corps by Individual Permit, General
Permit, by 33 CFR 330.3, or did not
require a permit at the time it was
constructed, or
(ii) were constructed by the Corps and
transferred to a non-Federal sponsor for
operation and maintenance. Activities
authorized by this NWP are limited to
those resulting from maintenance
activities that are conducted within the
‘‘maintenance baseline,’’ as described in
the definition below. Activities
including the discharges of dredged or
fill materials, associated with
maintenance activities in flood control
facilities in any watercourse that has
previously been determined to be
within the maintenance baseline, are
authorized under this NWP. The NWP
does not authorize the removal of
sediment and associated vegetation from
the natural water courses except to the
extent that these have been included in
the maintenance baseline. All dredged
material must be placed in an upland
site or an authorized disposal site in
waters of the US, and proper siltation
controls must be used. (Activities of any
kind that result in only incidental
fallback, or only the cutting and
removing of vegetation above the
ground, e.g., mowing, rotary cutting,
and chainsawing, where the activity
neither substantially disturbs the root
system nor involves mechanized
pushing, dragging, or other similar
activities that redeposit excavated soil
material, do not require a Section 404
permit in accordance with 33 CFR
323.2(d)(2)).
Notification: After the maintenance
baseline is established, and before any
maintenance work is conducted, the
permittee must notify the District
Engineer in accordance with the
‘‘Notification’’ General Condition. The
notification may be for activity-specific
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2084 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
maintenance or for maintenance of the
entire flood control facility by
submitting a five year (or less)
maintenance plan.
Maintenance Baseline: The
maintenance baseline is a description of
the physical characteristics (e.g., depth,
width, length, location, configuration, or
design flood capacity, etc.) of a flood
control project within which
maintenance activities are normally
authorized by NWP 31, subject to any
case-specific conditions required by the
District Engineer. The District Engineer
will approve the maintenance baseline
based on the approved or constructed
capacity of the flood control facility,
whichever is smaller, including any
areas where there are no constructed
channels, but which are part of the
facility. If no evidence of the
constructed capacity exist, the approved
constructed capacity will be used. The
prospective permittee will provide
documentation of the physical
characteristics of the flood control
facility (which will normally consist of
as-built or approved drawings) and
documentation of the design capacities
of the flood control facility. The
documentation will also include BMPs
to ensure that the impacts to the aquatic
environment are minimal, especially in
maintenance areas where there are no
constructed channels. (The Corps may
request maintenance records in areas
where there has not been recent
maintenance.) Revocation or
modification of the final determination
of the maintenance baseline can only be
done in accordance with 33 CFR 330.5.
Except in emergencies as described
below, this NWP can not be used until
the District Engineer approves the
maintenance baseline and determines
the need for mitigation and any regional
or activity-specific conditions. Once
determined, the maintenance baseline
will remain valid for any subsequent
reissuance of this NWP. This permit
does not authorize maintenance of a
flood control facility that has been
abandoned. A flood control facility will
be considered abandoned if it has
operated at a significantly reduced
capacity without needed maintenance
being accomplished in a timely manner.
Mitigation: The District Engineer will
determine any required mitigation onetime
only for impacts associated with
maintenance work at the same time that
the maintenance baseline is approved.
Such one-time mitigation will be
required when necessary to ensure that
adverse environmental impacts are no
more than minimal, both individually
and cumulatively. Such mitigation will
only be required once for any specific
reach of a flood control project.
However, if one-time mitigation is
required for impacts associated with
maintenance activities, the District
Engineer will not delay needed
maintenance, provided the District
Engineer and the permittee establish a
schedule for identification, approval,
development, construction and
completion of any such required
mitigation. Once the one-time
mitigation described above has been
completed, or a determination made
that mitigation is not required, no
further mitigation will be required for
maintenance activities within the
maintenance baseline. In determining
appropriate mitigation, the District
Engineer will give special consideration
to natural water courses that have been
included in the maintenance baseline
and require compensatory mitigation
and/or BMPs as appropriate.
Emergency Situations: In emergency
situations, this NWP may be used to
authorize maintenance activities in
flood control facilities for which no
maintenance baseline has been
approved. Emergency situations are
those which would result in an
unacceptable hazard to life, a significant
loss of property, or an immediate,
unforeseen, and significant economic
hardship if action is not taken before a
maintenance baseline can be approved.
In such situations, the determination of
mitigation requirements, if any, may be
deferred until the emergency has been
resolved. Once the emergency has
ended, a maintenance baseline must be
established expeditiously, and
mitigation, including mitigation for
maintenance conducted during the
emergency, must be required as
appropriate. (Sections 10 and 404)
32. Completed Enforcement Actions.
Any structure, work or discharge of
dredged or fill material, remaining in
place, or undertaken for mitigation,
restoration, or environmental benefit in
compliance with either:
(i) The terms of a final written Corps
non-judicial settlement agreement
resolving a violation of section 404 of
the CWA and/or section 10 of the Rivers
and Harbors Act of 1899; or the terms
of an EPA 309(a) order on consent
resolving a violation of section 404 of
the CWA, provided that:
a. The unauthorized activity affected
no more than 5 acres of non-tidal
wetlands or 1 acre of tidal wetlands;
b. The settlement agreement provides
for environmental benefits, to an equal
or greater degree, than the
environmental detriments caused by the
unauthorized activity that is authorized
by this NWP; and
c. The District Engineer issues a
verification letter authorizing the
activity subject to the terms and
conditions of this NWP and the
settlement agreement, including a
specified completion date; or
(ii) The terms of a final Federal court
decision, consent decree, or settlement
agreement resulting from an
enforcement action brought by the U.S.
under section 404 of the CWA and/or
section 10 of the Rivers and Harbors Act
of 1899; or
(iii) The terms of a final court
decision, consent decree, settlement
agreement, or non-judicial settlement
agreement resulting from a natural
resource damage claim brought by a
trustee or trustees for natural resources
(as defined by the National Contingency
Plan at 40 CFR subpart G) under section
311 of the Clean Water Act (CWA),
section 107 of the Comprehensive
Environmental Response, Compensation
and Liability Act (CERCLA or
Superfund), section 312 of the National
Marine Sanctuaries Act (NMSA), section
1002 of the Oil Pollution Act of 1990
(OPA), or the Park System Resource
Protection Act at 16 U.S.C. ’19jj, to the
extent that a Corps permit is required.
For either (i), (ii) or (iii) above,
compliance is a condition of the NWP
itself. Any authorization under this
NWP is automatically revoked if the
permittee does not comply with the
terms of this NWP or the terms of the
court decision, consent decree, or
judicial/non-judicial settlement
agreement or fails to complete the work
by the specified completion date. This
NWP does not apply to any activities
occurring after the date of the decision,
decree, or agreement that are not for the
purpose of mitigation, restoration, or
environmental benefit. Before reaching
any settlement agreement, the Corps
will ensure compliance with the
provisions of 33 CFR part 326 and 33
CFR 330.6 (d)(2) and (e). (Sections 10
and 404)
33. Temporary Construction, Access
and Dewatering. Temporary structures,
work and discharges, including
cofferdams, necessary for construction
activities or access fills or dewatering of
construction sites; provided that the
associated primary activity is authorized
by the Corps of Engineers or the USCG,
or for other construction activities not
subject to the Corps or USCG
regulations. Appropriate measures must
be taken to maintain near normal
downstream flows and to minimize
flooding. Fill must be of materials, and
placed in a manner, that will not be
eroded by expected high flows. The use
of dredged material may be allowed if
it is determined by the District Engineer
that it will not cause more than minimal
adverse effects on aquatic resources.
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Temporary fill must be entirely removed
to upland areas, or dredged material
returned to its original location,
following completion of the
construction activity, and the affected
areas must be restored to the pre-project
conditions. Cofferdams cannot be used
to dewater wetlands or other aquatic
areas to change their use. Structures left
in place after cofferdams are removed
require a Section 10 permit if located in
navigable waters of the U.S. (See 33 CFR
part 322). The permittee must notify the
District Engineer in accordance with the
‘‘Notification’’ General Condition. The
notification must also include a
restoration plan of reasonable measures
to avoid and minimize adverse effects to
aquatic resources. The District Engineer
will add Special Conditions, where
necessary, to ensure environmental
adverse effects is minimal. Such
conditions may include: limiting the
temporary work to the minimum
necessary; requiring seasonal
restrictions; modifying the restoration
plan; and requiring alternative
construction methods (e.g. construction
mats in wetlands where practicable.).
(Sections 10 and 404)
34. Cranberry Production Activities.
Discharges of dredged or fill material for
dikes, berms, pumps, water control
structures or leveling of cranberry beds
associated with expansion,
enhancement, or modification activities
at existing cranberry production
operations provided that the activity
meets all of the following criteria:
a. The cumulative total acreage of
disturbance per cranberry production
operation, including but not limited to,
filling, flooding, ditching, or clearing,
does not exceed 10 acres of waters of the
U.S., including wetlands;
b. The permittee notifies the District
Engineer in accordance with the
‘‘Notification’’ General Condition. The
notification must include a delineation
of affected special aquatic sites,
including wetlands; and,
c. The activity does not result in a net
loss of wetland acreage. This NWP does
not authorize any discharge of dredged
or fill material related to other cranberry
production activities such as
warehouses, processing facilities, or
parking areas. For the purposes of this
NWP, the cumulative total of 10 acres
will be measured over the period that
this NWP is valid. (Section 404)
35. Maintenance Dredging of Existing
Basins. Excavation and removal of
accumulated sediment for maintenance
of existing marina basins, access
channels to marinas or boat slips, and
boat slips to previously authorized
depths or controlling depths for ingress/
egress, whichever is less, provided the
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
dredged material is disposed of at an
upland site and proper siltation controls
are used. (Section 10)
36. Boat Ramps. Activities required
for the construction of boat ramps
provided:
a. The discharge into waters of the
U.S. does not exceed 50 cubic yards of
concrete, rock, crushed stone or gravel
into forms, or placement of pre-cast
concrete planks or slabs. (Unsuitable
material that causes unacceptable
chemical pollution or is structurally
unstable is not authorized);
b. The boat ramp does not exceed 20
feet in width;
c. The base material is crushed stone,
gravel or other suitable material;
d. The excavation is limited to the
area necessary for site preparation and
all excavated material is removed to the
upland; and,
e. No material is placed in special
aquatic sites, including wetlands.
Another NWP, Regional General
Permit, or Individual Permit may
authorize dredging to provide access to
the boat ramp after obtaining a Section
10 if located in navigable waters of the
U.S. (Sections 10 and 404)
37. Emergency Watershed Protection
and Rehabilitation. Work done by or
funded by:
a. The NRCS which is a situation
requiring immediate action under its
emergency Watershed Protection
Program (7 CFR part 624); or
b. The USFS under its Burned-Area
Emergency Rehabilitation Handbook
(FSH 509.13); or
c. The DOI for wildland fire
management burned area emergency
stabilization and rehabilitation (DOI
Manual part 620, Ch. 3).
For all of the above provisions, the
District Engineer must be notified in
accordance with the General Condition
13. (Also, see 33 CFR 330.1(e)).
(Sections 10 and 404)
38. Cleanup of Hazardous and Toxic
Waste. Specific activities required to
effect the containment, stabilization, or
removal of hazardous or toxic waste
materials that are performed, ordered, or
sponsored by a government agency with
established legal or regulatory authority
provided the permittee notifies the
District Engineer in accordance with the
‘‘Notification’’ General Condition. For
discharges in special aquatic sites,
including wetlands, the notification
must also include a delineation of
affected special aquatic sites, including
wetlands. Court ordered remedial action
plans or related settlements are also
authorized by this NWP. This NWP does
not authorize the establishment of new
disposal sites or the expansion of
existing sites used for the disposal of
2085
hazardous or toxic waste. Activities
undertaken entirely on a
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) site by authority of
CERCLA as approved or required by
EPA, are not required to obtain permits
under section 404 of the CWA or section
10 of the Rivers and Harbors Act.
(Sections 10 and 404)
39. Residential, Commercial, and
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features may
include, but are not limited to, roads,
parking lots, garages, yards, utility lines,
stormwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized by this NWP.
Residential developments include
multiple and single unit developments.
Examples of commercial developments
include retail stores, industrial facilities,
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than 1 ⁄2-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than 1 ⁄10-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
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2086 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
high water mark (see Note, below); or
(3) The discharge causes the loss of
greater than 300 linear feet of
intermittent stream bed. In such case, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, and
waive the limitation on stream impacts
in writing before the permittee may
proceed;
d. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
e. The discharge is part of a single and
complete project;
f. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable. The notification,
when required, must include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not be
required for the District Engineer’s
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the US exceeding 1 ⁄10-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
h. Any work authorized by this NWP
must not cause more than minimal
degradation of water quality or more
than minimal changes to the flow
characteristics of any stream (see
General Conditions 9 and 21);
i. For discharges causing the loss of
1 ⁄10-acre or less of waters of the US, the
permittee must submit a report, within
30 days of completion of the work, to
the District Engineer that contains the
following information: (1) The name,
address, and telephone number of the
permittee; (2) The location of the work;
(3) A description of the work; (4) The
type and acreage of the loss of waters of
the US (e.g., 1 ⁄12-acre of emergent
wetlands); and (5) The type and acreage
of any compensatory mitigation used to
offset the loss of waters of the US (e.g.,
1 ⁄12-acre of emergent wetlands created
on-site);
j. If there are any open waters or
streams within the project area, the
permittee will establish and maintain, to
the maximum extent practicable,
wetland or upland vegetated buffers
next to those open waters or streams
consistent with General Condition 19.
Deed restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site.
Only residential, commercial, and
institutional activities with structures
on the foundation(s) or building pad(s),
as well as the attendant features, are
authorized by this NWP. The
compensatory mitigation proposal that
is required in paragraph (e) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph (i) of this NWP
will be determined on a case-by-case
basis by the District Engineer for
addressing water quality concerns. The
required wetland or upland vegetated
buffer is part of the overall
compensatory mitigation requirement
for this NWP. If the project site was
previously used for agricultural
purposes and the farm owner/operator
used NWP 40 to authorize activities in
waters of the US to increase production
or construct farm buildings, NWP 39
cannot be used by the developer to
authorize additional activities. This is
more than the acreage limit for NWP 39
impacts to waters of the US (i.e., the
combined acreage loss authorized under
NWPs 39 and 40 cannot exceed 1 ⁄2-acre,
see General Condition 15).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
not exceed 1 ⁄2-acre. This includes any
loss of waters associated with
development of individual subdivision
lots. (Sections 10 and 404)
Note: Areas where wetland vegetation is
not present should be determined by the
presence or absence of an ordinary high
water mark or bed and bank. Areas that are
waters of the US based on this criterion
would require a PCN although water is
infrequently present in the stream channel
(except for ephemeral waters, which do not
require PCNs).
40. Agricultural Activities. Discharges
of dredged or fill material into non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters, for
improving agricultural production and
the construction of building pads for
farm buildings. Authorized activities
include the installation, placement, or
construction of drainage tiles, ditches,
or levees; mechanized land clearing;
land leveling; the relocation of existing
serviceable drainage ditches constructed
in waters of the US; and similar
activities, provided the permittee
complies with the following terms and
conditions:
a. For discharges into non-tidal
wetlands to improve agricultural
production, the following criteria must
be met if the permittee is an United
States Department of Agriculture
(USDA) Program participant:
(1) The permittee must obtain a
categorical minimal effects exemption,
minimal effect exemption, or mitigation
exemption from NRCS in accordance
with the provisions of the Food Security
Act of 1985, as amended (16 U.S.C. 3801
et seq.);
(2) The discharge into non-tidal
wetlands does not result in the loss of
greater than 1 ⁄2-acre of non-tidal
wetlands on a farm tract;
(3) The permittee must have NRCScertified
wetland delineation;
(4) The permittee must implement an
NRCS-approved compensatory
mitigation plan that fully offsets
wetland losses, if required; and
(5) The permittee must submit a
report, within 30 days of completion of
the authorized work, to the District
Engineer that contains the following
information: (a) The name, address, and
telephone number of the permittee; (b)
The location of the work; (c) A
description of the work; (d) The type
and acreage (or square feet) of the loss
of wetlands (e.g., 1 ⁄3-acre of emergent
wetlands); and (e) The type, acreage (or
square feet), and location of
compensatory mitigation (e.g. 1 ⁄3-acre of
emergent wetland on a farm tract;
credits purchased from a mitigation
bank); or
b. For discharges into non-tidal
wetlands to improve agricultural
production, the following criteria must
be met if the permittee is not a USDA
Program participant (or a USDA
Program participant for which the
proposed work does not qualify for
authorization under paragraph (a) of this
NWP):
(1) The discharge into non-tidal
wetlands does not result in the loss of
greater than 1 ⁄2-acre of non-tidal
wetlands on a farm tract;
(2) The permittee must notify the
District Engineer in accordance with
General Condition 13, if the discharge
results in the loss of greater than 1 ⁄10acre
of non-tidal wetlands;
(3) The notification must include a
delineation of affected wetlands; and
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(4) The notification must include a
compensatory mitigation proposal to
offset losses of waters of the US; or
c. For the construction of building
pads for farm buildings, the discharge
does not cause the loss of greater than
1 ⁄2-acre of non-tidal wetlands that were
in agricultural production prior to
December 23, 1985, (i.e., farmed
wetlands) and the permittee must notify
the District Engineer in accordance with
General Condition 13; and
d. Any activity in other waters of the
US is limited to the relocation of
existing serviceable drainage ditches
constructed in non-tidal streams. This
NWP does not authorize the relocation
of greater than 300 linear-feet of existing
serviceable drainage ditches constructed
in non-tidal streams unless, for drainage
ditches constructed in intermittent nontidal
streams, the District Engineer
waives this criterion in writing, and the
District Engineer has determined that
the project complies with all terms and
conditions of this NWP, and that any
adverse impacts of the project on the
aquatic environment are minimal, both
individually and cumulatively. For
impacts exceeding 300-linear feet of
impacts to existing serviceable ditches
constructed in intermittent non-tidal
streams, the permittee must notify the
District Engineer in accordance with the
‘‘Notification’’ General Condition 13;
and
e. The term ‘‘farm tract’’ refers to a
parcel of land identified by the Farm
Service Agency. The Corps will identify
other waters of the US on the farm tract.
NRCS will determine if a proposed
agricultural activity meets the terms and
conditions of paragraph a. of this NWP,
except as provided below. For those
activities that require notification, the
District Engineer will determine if a
proposed agricultural activity is
authorized by paragraphs b., c., and/or
d. of this NWP. USDA Program
participants requesting authorization for
discharges of dredged or fill material
into waters of the US authorized by
paragraphs (c) or (d) of this NWP, in
addition to paragraph (a), must notify
the District Engineer in accordance with
General Condition 13 and the District
Engineer will determine if the entire
single and complete project is
authorized by this NWP. Discharges of
dredged or fill material into waters of
the US associated with completing
required compensatory mitigation are
authorized by this NWP. However, total
impacts, including other authorized
impacts under this NWP, may not
exceed the 1 ⁄2-acre limit of this NWP.
This NWP does not affect, or otherwise
regulate, discharges associated with
agricultural activities when the
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
discharge qualifies for an exemption
under section 404(f) of the CWA, even
though a categorical minimal effects
exemption, minimal effect exemption,
or mitigation exemption from NRCS
pursuant to the Food Security Act of
1985, as amended, may be required.
Activities authorized by paragraphs a.
through d. may not exceed a total of 1 ⁄2acre
on a single farm tract. If the site was
used for agricultural purposes and the
farm owner/operator used either
paragraphs a., b., or c. of this NWP to
authorize activities in waters of the US
to increase agricultural production or
construct farm buildings, and the
current landowner wants to use NWP 39
to authorize residential, commercial, or
industrial development activities in
waters of the US on the site, the
combined acreage loss authorized by
NWPs 39 and 40 cannot exceed 1 ⁄2-acre
(see General Condition 15). (Section
404)
41. Reshaping Existing Drainage
Ditches. Discharges of dredged or fill
material into non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, to modify the crosssectional
configuration of currently
serviceable drainage ditches constructed
in waters of the US. The reshaping of
the ditch cannot increase drainage
capacity beyond the original design
capacity. Nor can it expand the area
drained by the ditch as originally
designed (i.e., the capacity of the ditch
must be the same as originally designed
and it cannot drain additional wetlands
or other waters of the US).
Compensatory mitigation is not required
because the work is designed to improve
water quality (e.g., by regrading the
drainage ditch with gentler slopes,
which can reduce erosion, increase
growth of vegetation, increase uptake of
nutrients and other substances by
vegetation, etc.).
Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13 if
greater than 500 linear feet of drainage
ditch will be reshaped. Material
resulting from excavation may not be
permanently sidecast into waters but
may be temporarily sidecast (up to three
months) into waters of the US, provided
the material is not placed in such a
manner that it is dispersed by currents
or other forces. The District Engineer
may extend the period of temporary
sidecasting not to exceed a total of 180
days, where appropriate. In general, this
NWP does not apply to reshaping
drainage ditches constructed in
uplands, since these areas are generally
not waters of the US, and thus no permit
from the Corps is required, or to the
maintenance of existing drainage
2087
ditches to their original dimensions and
configuration, which does not require a
Section 404 permit (see 33 CFR
323.4(a)(3)). This NWP does not
authorize the relocation of drainage
ditches constructed in waters of the US;
the location of the centerline of the
reshaped drainage ditch must be
approximately the same as the location
of the centerline of the original drainage
ditch. This NWP does not authorize
stream channelization or stream
relocation projects. (Section 404)
42. Recreational Facilities. Discharges
of dredged or fill material into non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of
recreational facilities, provided the
activity meets all of the following
criteria:
a. The discharge does not cause the
loss of greater than 1 ⁄2-acre of non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee notifies the District
Engineer in accordance with the
‘‘Notification’’ General Condition 13 for
discharges exceeding 300 linear feet of
impact of intermittent stream beds. In
such cases, to be authorized the District
Engineer must determine that the
activity complies with the other terms
and conditions of the NWP, determine
the adverse environmental effects are
minimal both individually and
cumulatively, and waive this limitation
in writing before the permittee may
proceed;
d. For discharges causing the loss of
greater than 1 ⁄10-acre of non-tidal waters
of the US, the permittee notifies the
District Engineer in accordance with
General Condition 13;
e. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
f. The discharge is part of a single and
complete project; and
g. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. The notification
must also include a compensatory
mitigation proposal to offset authorized
losses of waters of the US.
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2088 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
For the purposes of this NWP, the
term ‘‘recreational facility’’ is defined as
a recreational activity that is integrated
into the natural landscape and does not
substantially change preconstruction
grades or deviate from natural landscape
contours. For the purpose of this permit,
the primary function of recreational
facilities does not include the use of
motor vehicles, buildings, or impervious
surfaces. Examples of recreational
facilities that may be authorized by this
NWP include hiking trails, bike paths,
horse paths, nature centers, and
campgrounds (excluding trailer parks).
This NWP may authorize the
construction or expansion of golf
courses and the expansion of ski areas,
provided the golf course or ski area does
not substantially deviate from natural
landscape contours. Additionally, these
activities are designed to minimize
adverse effects to waters of the US and
riparian areas through the use of such
practices as integrated pest
management, adequate stormwater
management facilities, vegetated buffers,
reduced fertilizer use, etc. The facility
must have an adequate water quality
management plan in accordance with
General Condition 9, such as a
stormwater management facility, to
ensure that the recreational facility
results in no substantial adverse effects
to water quality. This NWP also
authorizes the construction or
expansion of small support facilities,
such as maintenance and storage
buildings and stables that are directly
related to the recreational activity. This
NWP does not authorize other
buildings, such as hotels, restaurants,
etc. The construction or expansion of
playing fields (e.g., baseball, soccer, or
football fields), basketball and tennis
courts, racetracks, stadiums, arenas, and
the construction of new ski areas are not
authorized by this NWP. (Section 404)
43. Stormwater Management
Facilities. Discharges of dredged or fill
material into non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, for the construction and
maintenance of stormwater management
facilities, including activities for the
excavation of stormwater ponds/
facilities, detention basins, and
retention basins; the installation and
maintenance of water control structures,
outfall structures and emergency
spillways; and the maintenance
dredging of existing stormwater
management ponds/facilities and
detention and retention basins,
provided the activity meets all of the
following criteria:
a. The discharge for the construction
of new stormwater management
facilities does not cause the loss of
greater than 1 ⁄2-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. For discharges causing the loss of
greater than 300 linear feet of
intermittent stream beds, the permittee
notifies the District Engineer in
accordance with the ‘‘Notification’’
General Condition 13. In such cases, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine the adverse
environmental effects are minimal both
individually and cumulatively, and
waive this limitation in writing before
the permittee may proceed;
d. The discharges of dredged or fill
material for the construction of new
stormwater management facilities in
perennial streams is not authorized;
e. For discharges or excavation for the
construction of new stormwater
management facilities or for the
maintenance of existing stormwater
management facilities causing the loss
of greater than 1 ⁄10-acre of non-tidal
waters, excluding non-tidal wetlands
adjacent to tidal waters, provided the
permittee notifies the District Engineer
in accordance with the ‘‘Notification’’
General Condition 13. In addition, the
notification must include:
(1) A maintenance plan. The
maintenance plan should be in
accordance with state and local
requirements, if any such requirements
exist;
(2) For discharges in special aquatic
sites, including wetlands and
submerged aquatic vegetation, the
notification must include a delineation
of affected areas; and
(3) A compensatory mitigation
proposal that offsets the loss of waters
of the US. Maintenance in constructed
areas will not require mitigation
provided such maintenance is
accomplished in designated
maintenance areas and not within
compensatory mitigation areas (i.e.,
District Engineers may designate nonmaintenance
areas, normally at the
downstream end of the stormwater
management facility, in existing
stormwater management facilities). (No
mitigation will be required for activities
that are exempt from Section 404 permit
requirements);
f. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable, and the notification
must include a written statement to the
District Engineer detailing compliance
with this condition (i.e. why the
discharge must occur in waters of the
US and why additional minimization
cannot be achieved);
g. The stormwater management
facility must comply with General
Condition 21 and be designed using
BMPs and watershed protection
techniques. Examples may include
forebays (deeper areas at the upstream
end of the stormwater management
facility that would be maintained
through excavation), vegetated buffers,
and siting considerations to minimize
adverse effects to aquatic resources.
Another example of a BMP would be
bioengineering methods incorporated
into the facility design to benefit water
quality and minimize adverse effects to
aquatic resources from storm flows,
especially downstream of the facility,
that provide, to the maximum extent
practicable, for long term aquatic
resource protection and enhancement;
h. Maintenance excavation will be in
accordance with an approved
maintenance plan and will not exceed
the original contours of the facility as
approved and constructed; and
i. The discharge is part of a single and
complete project. (Section 404)
44. Mining Activities. Discharges of
dredged or fill material into:
(i) Isolated waters; streams where the
annual average flow is 1 cubic foot per
second or less, and non-tidal wetlands
adjacent to headwater streams, for
aggregate mining (i.e., sand, gravel, and
crushed and broken stone) and
associated support activities;
(ii) Lower perennial streams,
excluding wetlands adjacent to lower
perennial streams, for aggregate mining
activities (support activities in lower
perennial streams or adjacent wetlands
are not authorized by this NWP); and/
or
(iii) Isolated waters and non-tidal
wetlands adjacent to headwater streams,
for hard rock/mineral mining activities
(i.e., extraction of metalliferous ores
from subsurface locations) and
associated support activities, provided
the discharge meets the following
criteria:
a. The mined area within waters of
the US, plus the acreage loss of waters
of the US resulting from support
activities, cannot exceed 1 ⁄2-acre;
b. The permittee must avoid and
minimize discharges into waters of the
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US at the project site to the maximum
extent practicable, and the notification
must include a written statement
detailing compliance with this
condition (i.e., why the discharge must
occur in waters of the US and why
additional minimization cannot be
achieved);
c. In addition to General Conditions
17 and 20, activities authorized by this
permit must not substantially alter the
sediment characteristics of areas of
concentrated shellfish beds or fish
spawning areas. Normally, the
mandated water quality management
plan should address these impacts;
d. The permittee must implement
necessary measures to prevent increases
in stream gradient and water velocities
and to prevent adverse effects (e.g., head
cutting, bank erosion) to upstream and
downstream channel conditions;
e. Activities authorized by this permit
must not result in adverse effects on the
course, capacity, or condition of
navigable waters of the US;
f. The permittee must use measures to
minimize downstream turbidity;
g. Wetland impacts must be
compensated through mitigation
approved by the Corps;
h. Beneficiation and mineral
processing for hard rock/mineral mining
activities may not occur within 200 feet
of the ordinary high water mark of any
open waterbody. Although the Corps
does not regulate discharges from these
activities, a CWA section 402 permit
may be required;
i. All activities authorized must
comply with General Conditions 9 and
21. Further, the District Engineer may
require modifications to the required
water quality management plan to
ensure that the authorized work results
in minimal adverse effects to water
quality;
j. Except for aggregate mining
activities in lower perennial streams, no
aggregate mining can occur within
stream beds where the average annual
flow is greater than 1 cubic foot per
second or in waters of the US within
100 feet of the ordinary high water mark
of headwater stream segments where the
average annual flow of the stream is
greater than 1 cubic foot per second
(aggregate mining can occur in areas
immediately adjacent to the ordinary
high water mark of a stream where the
average annual flow is 1 cubic foot per
second or less);
k. Single and complete project: The
discharge must be for a single and
complete project, including support
activities. Discharges of dredged or fill
material into waters of the US for
multiple mining activities on several
designated parcels of a single and
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
complete mining operation can be
authorized by this NWP provided the
1 ⁄2-acre limit is not exceeded; and
l. Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13.
The notification must include: (1) A
description of waters of the US
adversely affected by the project; (2) A
written statement to the District
Engineer detailing compliance with
paragraph (b), above (i.e., why the
discharge must occur in waters of the
US and why additional minimization
cannot be achieved); (3) A description of
measures taken to ensure that the
proposed work complies with
paragraphs (c) through (f), above; and (4)
A reclamation plan (for aggregate
mining in isolated waters and non-tidal
wetlands adjacent to headwaters and
hard rock/mineral mining only).
This NWP does not authorize hard
rock/mineral mining, including placer
mining, in streams. No hard rock/
mineral mining can occur in waters of
the US within 100 feet of the ordinary
high water mark of headwater streams.
The term’s ‘‘headwaters’’ and ‘‘isolated
waters’’ are defined at 33 CFR 330.2(d)
and (e), respectively. For the purposes
of this NWP, the term ‘‘lower perennial
stream’’ is defined as follows: ‘‘A stream
in which the gradient is low and water
velocity is slow, there is no tidal
influence, some water flows throughout
the year, and the substrate consists
mainly of sand and mud.’’ (Sections 10
and 404)
C. Nationwide Permit General
Conditions
The following General Conditions
must be followed in order for any
authorization by an NWP to be valid:
1. Navigation. No activity may cause
more than a minimal adverse effect on
navigation.
2. Proper Maintenance. Any structure
or fill authorized shall be properly
maintained, including maintenance to
ensure public safety.
3. Soil Erosion and Sediment
Controls. Appropriate soil erosion and
sediment controls must be used and
maintained in effective operating
condition during construction, and all
exposed soil and other fills, as well as
any work below the ordinary high water
mark or high tide line, must be
permanently stabilized at the earliest
practicable date. Permittees are
encouraged to perform work within
waters of the United States during
periods of low-flow or no-flow.
4. Aquatic Life Movements. No
activity may substantially disrupt the
necessary life-cycle movements of those
species of aquatic life indigenous to the
2089
waterbody, including those species that
normally migrate through the area,
unless the activity’s primary purpose is
to impound water. Culverts placed in
streams must be installed to maintain
low flow conditions.
5. Equipment. Heavy equipment
working in wetlands must be placed on
mats, or other measures must be taken
to minimize soil disturbance.
6. Regional and Case-By-Case
Conditions. The activity must comply
with any regional conditions that may
have been added by the Division
Engineer (see 33 CFR 330.4(e)).
Additionally, any case specific
conditions added by the Corps or by the
state or tribe in its Section 401 Water
Quality Certification and Coastal Zone
Management Act consistency
determination.
7. Wild and Scenic Rivers. No activity
may occur in a component of the
National Wild and Scenic River System;
or in a river officially designated by
Congress as a ‘‘study river’’ for possible
inclusion in the system, while the river
is in an official study status; unless the
appropriate Federal agency, with direct
management responsibility for such
river, has determined in writing that the
proposed activity will not adversely
affect the Wild and Scenic River
designation, or study status. Information
on Wild and Scenic Rivers may be
obtained from the appropriate Federal
land management agency in the area
(e.g., National Park Service, U.S. Forest
Service, Bureau of Land Management,
U.S. Fish and Wildlife Service).
8. Tribal Rights. No activity or its
operation may impair reserved tribal
rights, including, but not limited to,
reserved water rights and treaty fishing
and hunting rights.
9. Water Quality. (a) In certain states
and tribal lands an individual 401 Water
Quality Certification must be obtained
or waived (See 33 CFR 330.4(c)).
(b) For NWPs 12, 14, 17, 18, 32, 39,
40, 42, 43, and 44, where the state or
tribal 401 certification (either
generically or individually) does not
require or approve water quality
management measures, the permittee
must provide water quality management
measures that will ensure that the
authorized work does not result in more
than minimal degradation of water
quality (or the Corps determines that
compliance with state or local
standards, where applicable, will ensure
no more than minimal adverse effect on
water quality). An important component
of water quality management includes
stormwater management that minimizes
degradation of the downstream aquatic
system, including water quality (refer to
General Condition 21 for stormwater
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2090 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
management requirements). Another
important component of water quality
management is the establishment and
maintenance of vegetated buffers next to
open waters, including streams (refer to
General Condition 19 for vegetated
buffer requirements for the NWPs).
This condition is only applicable to
projects that have the potential to affect
water quality. While appropriate
measures must be taken, in most cases
it is not necessary to conduct detailed
studies to identify such measures or to
require monitoring.
10. Coastal Zone Management. In
certain states, an individual state coastal
zone management consistency
concurrence must be obtained or waived
(see Section 330.4(d)).
11. Endangered Species. (a) No
activity is authorized under any NWP
which is likely to jeopardize the
continued existence of a threatened or
endangered species or a species
proposed for such designation, as
identified under the Federal Endangered
Species Act (ESA), or which will
destroy or adversely modify the critical
habitat of such 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 is located in the designated
critical habitat and 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. For activities
that may affect Federally-listed
endangered or threatened species or
designated critical habitat, the
notification must include the name(s) of
the endangered or threatened species
that may be affected by the proposed
work or that utilize the designated
critical habitat that may be affected by
the proposed work. As a result of formal
or informal consultation with the FWS
or NMFS the District Engineer may add
species-specific regional endangered
species conditions to the NWPs.
(b) Authorization of an activity by a
NWP does not authorize the ‘‘take’’ of a
threatened or endangered species as
defined under the ESA. In the absence
of separate authorization (e.g., an ESA
Section 10 Permit, a Biological Opinion
with ‘‘incidental take’’ provisions, etc.)
from the USFWS or the NMFS, both
lethal and non-lethal ‘‘takes’’ of
protected species are in violation of the
ESA. Information on the location of
threatened and endangered species and
their critical habitat can be obtained
directly from the offices of the USFWS
and NMFS or their world wide web
pages at http://www.fws.gov/r9endspp/
endspp.html and http://www.nfms.gov/
prot_res/esahome.html respectively.
12. Historic Properties. No activity
which may affect historic properties
listed, or eligible for listing, in the
National Register of Historic Places is
authorized, until the District Engineer
has complied with the provisions of 33
CFR part 325, Appendix C. The
prospective permittee must notify the
District Engineer if the authorized
activity may affect any historic
properties listed, determined to be
eligible, or which the prospective
permittee has reason to believe may be
eligible for listing on the National
Register of Historic Places, and shall not
begin the activity until notified by the
District Engineer that the requirements
of the National Historic Preservation Act
have been satisfied and that the activity
is authorized. Information on the
location and existence of historic
resources can be obtained from the State
Historic Preservation Office and the
National Register of Historic Places (see
33 CFR 330.4(g)). For activities that may
affect historic properties listed in, or
eligible for listing in, the National
Register of Historic Places, the
notification must state which historic
property may be affected by the
proposed work or include a vicinity
map indicating the location of the
historic property.
13. Notification.
(a) Timing; where required by the
terms of the NWP, the prospective
permittee must notify the District
Engineer with a preconstruction
notification (PCN) as early as possible.
The District Engineer must determine if
the notification is complete within 30
days of the date of receipt and can
request additional information
necessary to make the PCN complete
only once. However, if the prospective
permittee does not provide all of the
requested information, then the District
Engineer will notify the prospective
permittee that the notification is still
incomplete and the PCN review process
will not commence until all of the
requested information has been received
by the District Engineer. The
prospective permittee shall not begin
the activity:
(1) Until notified in writing by the
District Engineer that the activity may
proceed under the NWP with any
special conditions imposed by the
District or Division Engineer; or
(2) If notified in writing by the District
or Division Engineer that an Individual
Permit is required; or
(3) Unless 45 days have passed from
the District Engineer’s receipt of the
complete notification and the
prospective permittee has not received
written notice from the District or
Division Engineer. Subsequently, the
permittee’s right to proceed under the
NWP may be modified, suspended, or
revoked only in accordance with the
procedure set forth in 33 CFR
330.5(d)(2).
(b) Contents of Notification: The
notification must be in writing and
include the following information:
(1) Name, address and telephone
numbers of the prospective permittee;
(2) Location of the proposed project;
(3) Brief description of the proposed
project; the project’s purpose; direct and
indirect adverse environmental effects
the project would cause; any other
NWP(s), Regional General Permit(s), or
Individual Permit(s) used or intended to
be used to authorize any part of the
proposed project or any related activity.
Sketches should be provided when
necessary to show that the activity
complies with the terms of the NWP
(Sketches usually clarify the project and
when provided result in a quicker
decision.);
(4) For NWPs 7, 12, 14, 18, 21, 34, 38,
39, 41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
13(f));
(5) For NWP 7 (Outfall Structures and
Maintenance), the PCN must include
information regarding the original
design capacities and configurations of
those areas of the facility where
maintenance dredging or excavation is
proposed;
(6) For NWP 14 (Linear
Transportation Crossings), the PCN
must include a compensatory mitigation
proposal to offset permanent losses of
waters of the US and a statement
describing how temporary losses of
waters of the US will be minimized to
the maximum extent practicable;
(7) For NWP 21 (Surface Coal Mining
Activities), the PCN must include an
Office of Surface Mining (OSM) or stateapproved
mitigation plan, if applicable.
To be authorized by this NWP, the
District Engineer must determine that
the activity complies with the terms and
conditions of the NWP and that the
adverse environmental effects are
minimal both individually and
cumulatively and must notify the
project sponsor of this determination in
writing;
(8) For NWP 27 (Stream and Wetland
Restoration), the PCN must include
documentation of the prior condition of
the site that will be reverted by the
permittee;
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(9) For NWP 29 (Single-Family
Housing), the PCN must also include:
(i) Any past use of this NWP by the
Individual Permittee and/or the
permittee’s spouse;
(ii) A statement that the single-family
housing activity is for a personal
residence of the permittee;
(iii) A description of the entire parcel,
including its size, and a delineation of
wetlands. For the purpose of this NWP,
parcels of land measuring 1 ⁄4-acre or less
will not require a formal on-site
delineation. However, the applicant
shall provide an indication of where the
wetlands are and the amount of
wetlands that exists on the property. For
parcels greater than 1 ⁄4-acre in size,
formal wetland delineation must be
prepared in accordance with the current
method required by the Corps. (See
paragraph 13(f));
(iv) A written description of all land
(including, if available, legal
descriptions) owned by the prospective
permittee and/or the prospective
permittee’s spouse, within a one mile
radius of the parcel, in any form of
ownership (including any land owned
as 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 sale
or purchase has been executed;
(10) For NWP 31 (Maintenance of
Existing Flood Control Projects), the
prospective permittee must either notify
the District Engineer with a PCN prior
to each maintenance activity or submit
a five year (or less) maintenance plan.
In addition, the PCN must include all of
the following:
(i) Sufficient baseline information
identifying the approved channel
depths and configurations and existing
facilities. Minor deviations are
authorized, provided the approved flood
control protection or drainage is not
increased;
(ii) A delineation of any affected
special aquatic sites, including
wetlands; and,
(iii) Location of the dredged material
disposal site;
(11) For NWP 33 (Temporary
Construction, Access, and Dewatering),
the PCN must also include a restoration
plan of reasonable measures to avoid
and minimize adverse effects to aquatic
resources;
(12) For NWPs 39, 43 and 44, the PCN
must also include a written statement to
the District Engineer explaining how
avoidance and minimization for losses
of waters of the US were achieved on
the project site;
(13) For NWP 39 and NWP 42, the
PCN must include a compensatory
mitigation proposal to offset losses of
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
waters of the US or justification
explaining why compensatory
mitigation should not be required. For
discharges that cause the loss of greater
than 300 linear feet of an intermittent
stream bed, to be authorized, the District
Engineer must determine that the
activity complies with the other terms
and conditions of the NWP, determine
adverse environmental effects are
minimal both individually and
cumulatively, and waive the limitation
on stream impacts in writing before the
permittee may proceed;
(14) For NWP 40 (Agricultural
Activities), the PCN must include a
compensatory mitigation proposal to
offset losses of waters of the US. This
NWP does not authorize the relocation
of greater than 300 linear-feet of existing
serviceable drainage ditches constructed
in non-tidal streams unless, for drainage
ditches constructed in intermittent nontidal
streams, the District Engineer
waives this criterion in writing, and the
District Engineer has determined that
the project complies with all terms and
conditions of this NWP, and that any
adverse impacts of the project on the
aquatic environment are minimal, both
individually and cumulatively;
(15) For NWP 43 (Stormwater
Management Facilities), the PCN must
include, for the construction of new
stormwater management facilities, a
maintenance plan (in accordance with
state and local requirements, if
applicable) and a compensatory
mitigation proposal to offset losses of
waters of the US. For discharges that
cause the loss of greater than 300 linear
feet of an intermittent stream bed, to be
authorized, the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, and
waive the limitation on stream impacts
in writing before the permittee may
proceed;
(16) For NWP 44 (Mining Activities),
the PCN must include a description of
all waters of the US adversely affected
by the project, a description of measures
taken to minimize adverse effects to
waters of the US, a description of
measures taken to comply with the
criteria of the NWP, and a reclamation
plan (for all aggregate mining activities
in isolated waters and non-tidal
wetlands adjacent to headwaters and
any hard rock/mineral mining
activities);
(17) For activities that may adversely
affect Federally-listed endangered or
threatened species, the PCN must
include the name(s) of those endangered
or threatened species that may be
2091
affected by the proposed work or utilize
the designated critical habitat that may
be affected by the proposed work; and
(18) For activities that may affect
historic properties listed in, or eligible
for listing in, the National Register of
Historic Places, the PCN must state
which historic property may be affected
by the proposed work or include a
vicinity map indicating the location of
the historic property.
(c) Form of Notification: The standard
Individual Permit application form
(Form ENG 4345) may be used as the
notification but must clearly indicate
that it is a PCN and must include all of
the information required in (b) (1)–(18)
of General Condition 13. A letter
containing the requisite information
may also be used.
(d) District Engineer’s Decision: In
reviewing the PCN for the proposed
activity, the District Engineer will
determine whether the activity
authorized by the NWP will result in
more than minimal individual or
cumulative adverse environmental
effects or may be contrary to the public
interest. The prospective permittee may
submit a proposed mitigation plan with
the PCN to expedite the process. The
District Engineer will consider any
proposed compensatory mitigation the
applicant has included in the proposal
in determining whether the net adverse
environmental effects to the aquatic
environment of the proposed work are
minimal. If the District Engineer
determines that the activity complies
with the terms and conditions of the
NWP and that the adverse effects on the
aquatic environment are minimal, after
considering mitigation, the District
Engineer will notify the permittee and
include any conditions the District
Engineer deems necessary. The District
Engineer must approve any
compensatory mitigation proposal
before the permittee commences work.
If the prospective permittee is required
to submit a compensatory mitigation
proposal with the PCN, the proposal
may be either conceptual or detailed. If
the prospective permittee elects to
submit a compensatory mitigation plan
with the PCN, the District Engineer will
expeditiously review the proposed
compensatory mitigation plan. The
District Engineer must review the plan
within 45 days of receiving a complete
PCN and determine whether the
conceptual or specific proposed
mitigation would ensure no more than
minimal adverse effects on the aquatic
environment. If the net adverse effects
of the project on the aquatic
environment (after consideration of the
compensatory mitigation proposal) are
determined by the District Engineer to
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2092 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
be minimal, the District Engineer will
provide a timely written response to the
applicant. The response will state that
the project can proceed under the terms
and conditions of the NWP.
If the District Engineer determines
that the adverse effects of the proposed
work are more than minimal, then the
District Engineer will notify the
applicant either: (1) That the project
does not qualify for authorization under
the NWP and instruct the applicant on
the procedures to seek authorization
under an Individual Permit; (2) that the
project is authorized under the NWP
subject to the applicant’s submission of
a mitigation proposal that would reduce
the adverse effects on the aquatic
environment to the minimal level; or (3)
that the project is authorized under the
NWP with specific modifications or
conditions. Where the District Engineer
determines that mitigation is required to
ensure no more than minimal adverse
effects occur to the aquatic
environment, the activity will be
authorized within the 45-day PCN
period. The authorization will include
the necessary conceptual or specific
mitigation or a requirement that the
applicant submit a mitigation proposal
that would reduce the adverse effects on
the aquatic environment to the minimal
level. When conceptual mitigation is
included, or a mitigation plan is
required under item (2) above, no work
in waters of the US will occur until the
District Engineer has approved a
specific mitigation plan.
(e) Agency Coordination: The District
Engineer will consider any comments
from Federal and state agencies
concerning the proposed activity’s
compliance with the terms and
conditions of the NWPs and the need for
mitigation to reduce the project’s
adverse environmental effects to a
minimal level.
For activities requiring notification to
the District Engineer that result in the
loss of greater than 1 ⁄2-acre of waters of
the US, the District Engineer will
provide immediately (e.g., via facsimile
transmission, overnight mail, or other
expeditious manner) a copy to the
appropriate Federal or state offices
(USFWS, state natural resource or water
quality agency, EPA, State Historic
Preservation Officer (SHPO), and, if
appropriate, the NMFS). With the
exception of NWP 37, these agencies
will then have 10 calendar days from
the date the material is transmitted to
telephone or fax the District Engineer
notice that they intend to provide
substantive, site-specific comments. If
so contacted by an agency, the District
Engineer will wait an additional 15
calendar days before making a decision
on the notification. The District
Engineer will fully consider agency
comments received within the specified
time frame, but will provide no
response to the resource agency, except
as provided below. The District
Engineer will indicate in the
administrative record associated with
each notification that the resource
agencies’ concerns were considered. As
required by section 305(b)(4)(B) of the
Magnuson-Stevens Fishery
Conservation and Management Act, the
District Engineer will provide a
response to NMFS within 30 days of
receipt of any Essential Fish Habitat
conservation recommendations.
Applicants are encouraged to provide
the Corps multiple copies of
notifications to expedite agency
notification.
(f) Wetland Delineations: Wetland
delineations must be prepared in
accordance with the current method
required by the Corps (For NWP 29 see
paragraph (b)(9)(iii) for parcels less than
( 1 ⁄4-acre in size). The permittee may ask
the Corps to delineate the special
aquatic site. There may be some delay
if the Corps does the delineation.
Furthermore, the 45-day period will not
start until the wetland delineation has
been completed and submitted to the
Corps, where appropriate.
14. Compliance Certification. Every
permittee who has received NWP
verification from the Corps will submit
a signed certification regarding the
completed work and any required
mitigation. The certification will be
forwarded by the Corps with the
authorization letter and will include:
(a) A statement that the authorized
work was done in accordance with the
Corps authorization, including any
general or specific conditions;
(b) A statement that any required
mitigation was completed in accordance
with the permit conditions; and
(c) The signature of the permittee
certifying the completion of the work
and mitigation.
15. Use of Multiple Nationwide
Permits. The use of more than one NWP
for a single and complete project is
prohibited, except when the acreage loss
of waters of the US authorized by the
NWPs does not exceed the acreage limit
of the NWP with the highest specified
acreage limit (e.g. if a road crossing over
tidal waters is constructed under NWP
14, with associated bank stabilization
authorized by NWP 13, the maximum
acreage loss of waters of the US for the
total project cannot exceed 1 ⁄3-acre).
16. Water Supply Intakes. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
the proximity of a public water supply
intake except where the activity is for
repair of the public water supply intake
structures or adjacent bank stabilization.
17. Shellfish Beds. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
areas of concentrated shellfish
populations, unless the activity is
directly related to a shellfish harvesting
activity authorized by NWP 4.
18. Suitable Material. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may consist
of unsuitable material (e.g., trash,
debris, car bodies, asphalt, etc.) and
material used for construction or
discharged must be free from toxic
pollutants in toxic amounts (see section
307 of the CWA).
19. Mitigation. The District Engineer
will consider the factors discussed
below when determining the
acceptability of appropriate and
practicable mitigation necessary to
offset adverse effects on the aquatic
environment that are more than
minimal.
(a) The project must be designed and
constructed to avoid and minimize
adverse effects to waters of the US to the
maximum extent practicable at the
project site (i.e., on site).
(b) Mitigation in all its forms
(avoiding, minimizing, rectifying,
reducing or compensating) will be
required to the extent necessary to
ensure that the adverse effects to the
aquatic environment are minimal.
(c) Compensatory mitigation at a
minimum one-for-one ratio will be
required for all wetland impacts
requiring a PCN, unless the District
Engineer determines in writing that
some other form of mitigation would be
more environmentally appropriate and
provides a project-specific waiver of this
requirement. Consistent with National
policy, the District Engineer will
establish a preference for restoration of
wetlands as compensatory mitigation,
with preservation used only in
exceptional circumstances.
(d) Compensatory mitigation (i.e.,
replacement or substitution of aquatic
resources for those impacted) will not
be used to increase the acreage losses
allowed by the acreage limits of some of
the NWPs. For example, 1 ⁄4-acre of
wetlands cannot be created to change a
3 ⁄4-acre loss of wetlands to a 1 ⁄2-acre loss
associated with NWP 39 verification.
However, 1 ⁄2-acre of created wetlands
can be used to reduce the impacts of a
1 ⁄2-acre loss of wetlands to the minimum
impact level in order to meet the
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minimal impact requirement associated
with NWPs.
(e) To be practicable, the mitigation
must be available and capable of being
done considering costs, existing
technology, and logistics in light of the
overall project purposes. Examples of
mitigation that may be appropriate and
practicable include, but are not limited
to: reducing the size of the project;
establishing and maintaining wetland or
upland vegetated buffers to protect open
waters such as streams; and replacing
losses of aquatic resource functions and
values by creating, restoring, enhancing,
or preserving similar functions and
values, preferably in the same
watershed.
(f) Compensatory mitigation plans for
projects in or near streams or other open
waters will normally include a
requirement for the establishment,
maintenance, and legal protection (e.g.,
easements, deed restrictions) of
vegetated buffers to open waters. In
many cases, vegetated buffers will be
the only compensatory mitigation
required. Vegetated buffers should
consist of native species. The width of
the vegetated buffers required will
address documented water quality or
aquatic habitat loss concerns. Normally,
the vegetated buffer will be 25 to 50 feet
wide on each side of the stream, but the
District Engineers may require slightly
wider vegetated buffers to address
documented water quality or habitat
loss concerns. Where both wetlands and
open waters exist on the project site, the
Corps will determine the appropriate
compensatory mitigation (e.g., stream
buffers or wetlands compensation)
based on what is best for the aquatic
environment on a watershed basis. In
cases where vegetated buffers are
determined to be the most appropriate
form of compensatory mitigation, the
District Engineer may waive or reduce
the requirement to provide wetland
compensatory mitigation for wetland
impacts.
(g) Compensatory mitigation
proposals submitted with the
‘‘notification’’ may be either conceptual
or detailed. If conceptual plans are
approved under the verification, then
the Corps will condition the verification
to require detailed plans be submitted
and approved by the Corps prior to
construction of the authorized activity
in waters of the US.
(h) Permittees may propose the use of
mitigation banks, in-lieu fee
arrangements or separate activityspecific
compensatory mitigation. In all
cases that require compensatory
mitigation, the mitigation provisions
will specify the party responsible for
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
accomplishing and/or complying with
the mitigation plan.
20. Spawning Areas. Activities,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, in spawning
areas during spawning seasons must be
avoided to the maximum extent
practicable. Activities that result in the
physical destruction (e.g., excavate, fill,
or smother downstream by substantial
turbidity) of an important spawning area
are not authorized.
21. Management of Water Flows. To
the maximum extent practicable, the
activity must be designed to maintain
preconstruction downstream flow
conditions (e.g., location, capacity, and
flow rates). Furthermore, the activity
must not permanently restrict or impede
the passage of normal or expected high
flows (unless the primary purpose of the
fill is to impound waters) and the
structure or discharge of dredged or fill
material must withstand expected high
flows. The activity must, to the
maximum extent practicable, provide
for retaining excess flows from the site,
provide for maintaining surface flow
rates from the site similar to
preconstruction conditions, and provide
for not increasing water flows from the
project site, relocating water, or
redirecting water flow beyond
preconstruction conditions. Stream
channelizing will be reduced to the
minimal amount necessary, and the
activity must, to the maximum extent
practicable, reduce adverse effects such
as flooding or erosion downstream and
upstream of the project site, unless the
activity is part of a larger system
designed to manage water flows. In most
cases, it will not be a requirement to
conduct detailed studies and monitoring
of water flow.
This condition is only applicable to
projects that have the potential to affect
waterflows. While appropriate measures
must be taken, it is not necessary to
conduct detailed studies to identify
such measures or require monitoring to
ensure their effectiveness. Normally, the
Corps will defer to state and local
authorities regarding management of
water flow.
22. Adverse Effects From
Impoundments. If the activity creates an
impoundment of water, adverse effects
to the aquatic system due to the
acceleration of the passage of water,
and/or the restricting its flow shall be
minimized to the maximum extent
practicable. This includes structures
and work in navigable waters of the US,
or discharges of dredged or fill material.
23. Waterfowl Breeding Areas.
Activities, including structures and
work in navigable waters of the US or
2093
discharges of dredged or fill material,
into breeding areas for migratory
waterfowl must be avoided to the
maximum extent practicable.
24. Removal of Temporary Fills. Any
temporary fills must be removed in their
entirety and the affected areas returned
to their preexisting elevation.
25. Designated Critical Resource
Waters. Critical resource waters include,
NOAA-designated marine sanctuaries,
National Estuarine Research Reserves,
National Wild and Scenic Rivers,
critical habitat for Federally listed
threatened and endangered species,
coral reefs, state natural heritage sites,
and outstanding national resource
waters or other waters officially
designated by a state as having
particular environmental or ecological
significance and identified by the
District Engineer after notice and
opportunity for public comment. The
District Engineer may also designate
additional critical resource waters after
notice and opportunity for comment.
(a) Except as noted below, discharges
of dredged or fill material into waters of
the US are not authorized by NWPs 7,
12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42,
43, and 44 for any activity within, or
directly affecting, critical resource
waters, including wetlands adjacent to
such waters. Discharges of dredged or
fill materials into waters of the US may
be authorized by the above NWPs in
National Wild and Scenic Rivers if the
activity complies with General
Condition 7. Further, such discharges
may be authorized in designated critical
habitat for Federally listed threatened or
endangered species if the activity
complies with General Condition 11 and
the USFWS or the NMFS has concurred
in a determination of compliance with
this condition.
(b) For NWPs 3, 8, 10, 13, 15, 18, 19,
22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and
38, notification is required in
accordance with General Condition 13,
for any activity proposed in the
designated critical resource waters
including wetlands adjacent to those
waters. The District Engineer may
authorize activities under these NWPs
only after it is determined that the
impacts to the critical resource waters
will be no more than minimal.
26. Fills Within 100-Year Floodplains.
For purposes of this General Condition,
100-year floodplains will be identified
through the existing Federal Emergency
Management Agency’s (FEMA) Flood
Insurance Rate Maps or FEMA-approved
local floodplain maps.
(a) Discharges in Floodplain; Below
Headwaters. Discharges of dredged or
fill material into waters of the US within
the mapped 100-year floodplain, below
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2094 Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
headwaters (i.e. five cfs), resulting in
permanent above-grade fills, are not
authorized by NWPs 39, 40, 42, 43, and
44.
(b) Discharges in Floodway; Above
Headwaters. Discharges of dredged or
fill material into waters of the US within
the FEMA or locally mapped floodway,
resulting in permanent above-grade fills,
are not authorized by NWPs 39, 40, 42,
and 44.
(c) The permittee must comply with
any applicable FEMA-approved state or
local floodplain management
requirements.
27. Construction Period. For activities
that have not been verified by the Corps
and the project was commenced or
under contract to commence by the
expiration date of the NWP (or
modification or revocation date), the
work must be completed within 12months
after such date (including any
modification that affects the project).
For activities that have been verified
and the project was commenced or
under contract to commence within the
verification period, the work must be
completed by the date determined by
the Corps.
For projects that have been verified by
the Corps, an extension of a Corps
approved completion date maybe
requested. This request must be
submitted at least one month before the
previously approved completion date.
D. Further Information
1. District Engineers have authority to
determine if an activity complies with
the terms and conditions of an NWP.
2. NWPs do not obviate the need to
obtain other Federal, state, or local
permits, approvals, or authorizations
required by law.
3. NWPs do not grant any property
rights or exclusive privileges.
4. NWPs do not authorize any injury
to the property or rights of others.
5. NWPs do not authorize interference
with any existing or proposed Federal
project.
E. Definitions
Best Management Practices (BMPs):
BMPs are policies, practices,
procedures, or structures implemented
to mitigate the adverse environmental
effects on surface water quality resulting
from development. BMPs are
categorized as structural or nonstructural.
A BMP policy may affect the
limits on a development.
Compensatory Mitigation: For
purposes of Section 10/404,
compensatory mitigation is the
restoration, creation, enhancement, or in
exceptional circumstances, preservation
of wetlands and/or other aquatic
resources for the purpose of
compensating for unavoidable adverse
impacts which remain after all
appropriate and practicable avoidance
and minimization has been achieved.
Creation: The establishment of a
wetland or other aquatic resource where
one did not formerly exist.
Enhancement: Activities conducted in
existing wetlands or other aquatic
resources that increase one or more
aquatic functions.
Ephemeral Stream: An ephemeral
stream has flowing water only during
and for a short duration after,
precipitation events in a typical year.
Ephemeral stream beds are located
above the water table year-round.
Groundwater is not a source of water for
the stream. Runoff from rainfall is the
primary source of water for stream flow.
Farm Tract: A unit of contiguous land
under one ownership that is operated as
a farm or part of a farm.
Flood Fringe: That portion of the 100year
floodplain outside of the floodway
(often referred to as ‘‘floodway fringe’’).
Floodway: The area regulated by
Federal, state, or local requirements to
provide for the discharge of the base
flood so the cumulative increase in
water surface elevation is no more than
a designated amount (not to exceed one
foot as set by the National Flood
Insurance Program) within the 100-year
floodplain.
Independent Utility: A test to
determine what constitutes a single and
complete project in the Corps regulatory
program. A project is considered to have
independent utility if it would be
constructed absent the construction of
other projects in the project area.
Portions of a multi-phase project that
depend upon other phases of the project
do not have independent utility. Phases
of a project that would be constructed
even if the other phases were not built
can be considered as separate single and
complete projects with independent
utility.
Intermittent Stream: An intermittent
stream has flowing water during certain
times of the year, when groundwater
provides water for stream flow. During
dry periods, intermittent streams may
not have flowing water. Runoff from
rainfall is a supplemental source of
water for stream flow.
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the use of a waterbody. The
acreage of loss of waters of the US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an NWP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of stream bed that is filled or
excavated. Waters of the US temporarily
filled, flooded, excavated, or drained,
but restored to preconstruction contours
and elevations after construction, are
not included in the measurement of loss
of waters of the US. Impacts to
ephemeral waters are only not included
in the acreage or linear foot
measurements of loss of waters of the
US or loss of stream bed, for the purpose
of determining compliance with the
threshold limits of the NWPs.
Non-tidal Wetland: A non-tidal
wetland is a wetland (i.e., a water of the
US) that is not subject to the ebb and
flow of tidal waters. The definition of a
wetland can be found at 33 CFR
328.3(b). Non-tidal wetlands contiguous
to tidal waters are located landward of
the high tide line (i.e., spring high tide
line).
Open Water: An area that, during a
year with normal patterns of
precipitation, has standing or flowing
water for sufficient duration to establish
an ordinary high water mark. Aquatic
vegetation within the area of standing or
flowing water is either non-emergent,
sparse, or absent. Vegetated shallows are
considered to be open waters. The term
‘‘open water’’ includes rivers, streams,
lakes, and ponds. For the purposes of
the NWPs, this term does not include
ephemeral waters.
Perennial Stream: A perennial stream
has flowing water year-round during a
typical year. The water table is located
above the stream bed for most of the
year. Groundwater is the primary source
of water for stream flow. Runoff from
rainfall is a supplemental source of
water for stream flow.
Permanent Above-grade Fill: A
discharge of dredged or fill material into
waters of the US, including wetlands,
that results in a substantial increase in
ground elevation and permanently
converts part or all of the waterbody to
dry land. Structural fills authorized by
NWPs 3, 25, 36, etc. are not included.
Preservation: The protection of
ecologically important wetlands or other
aquatic resources in perpetuity through
the implementation of appropriate legal
and physical mechanisms. Preservation
may include protection of upland areas
adjacent to wetlands as necessary to
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ensure protection and/or enhancement
of the overall aquatic ecosystem.
Restoration: Re-establishment of
wetland and/or other aquatic resource
characteristics and function(s) at a site
where they have ceased to exist, or exist
in a substantially degraded state.
Riffle and Pool Complex: Riffle and
pool complexes are special aquatic sites
under the 404(b)(1) Guidelines. Riffle
and pool complexes sometimes
characterize steep gradient sections of
streams. Such stream sections are
recognizable by their hydraulic
characteristics. The rapid movement of
water over a course substrate in riffles
results in a rough flow, a turbulent
surface, and high dissolved oxygen
levels in the water. Pools are deeper
areas associated with riffles. A slower
stream velocity, a streaming flow, a
smooth surface, and a finer substrate
characterize pools.
Single and Complete Project: The
term ‘‘single and complete project’’ is
defined at 33 CFR 330.2(i) as the total
project proposed or accomplished by
one owner/developer or partnership or
other association of owners/developers
(see definition of independent utility).
For linear projects, the ‘‘single and
complete project’’ (i.e., a single and
complete crossing) will apply to each
crossing of a separate water of the US
(i.e., a single waterbody) at that location.
An exception is for linear projects
crossing a single waterbody several
times at separate and distant locations:
each crossing is considered a single and
complete project. However, individual
channels in a braided stream or river, or
individual arms of a large, irregularly
shaped wetland or lake, etc., are not
separate waterbodies.
Stormwater Management: Stormwater
management is the mechanism for
controlling stormwater runoff for the
purposes of reducing downstream
erosion, water quality degradation, and
flooding and mitigating the adverse
Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / Notices
effects of changes in land use on the
aquatic environment.
Stormwater Management Facilities:
Stormwater management facilities are
those facilities, including but not
limited to, stormwater retention and
detention ponds and BMPs, which
retain water for a period of time to
control runoff and/or improve the
quality (i.e., by reducing the
concentration of nutrients, sediments,
hazardous substances and other
pollutants) of stormwater runoff.
Stream Bed: The substrate of the
stream channel between the ordinary
high water marks. The substrate may be
bedrock or inorganic particles that range
in size from clay to boulders. Wetlands
contiguous to the stream bed, but
outside of the ordinary high water
marks, are not considered part of the
stream bed.
Stream Channelization: The
manipulation of a stream channel to
increase the rate of water flow through
the stream channel. Manipulation may
include deepening, widening,
straightening, armoring, or other
activities that change the stream crosssection
or other aspects of stream
channel geometry to increase the rate of
water flow through the stream channel.
A channelized stream remains a water
of the US, despite the modifications to
increase the rate of water flow.
Tidal Wetland: A tidal wetland is a
wetland (i.e., water of the US) that is
inundated by tidal waters. The
definitions of a wetland and tidal waters
can be found at 33 CFR 328.3(b) and 33
CFR 328.3(f), respectively. Tidal waters
rise and fall in a predictable and
measurable rhythm or cycle due to the
gravitational pulls of the moon and sun.
Tidal waters end where the rise and fall
of the water surface can no longer be
practically measured in a predictable
rhythm due to masking by other waters,
wind, or other effects. Tidal wetlands
are located channelward of the high tide
line (i.e., spring high tide line) and are
2095
inundated by tidal waters two times per
lunar month, during spring high tides.
Vegetated Buffer: A vegetated upland
or wetland area next to rivers, streams,
lakes, or other open waters which
separates the open water from
developed areas, including agricultural
land. Vegetated buffers provide a variety
of aquatic habitat functions and values
(e.g., aquatic habitat for fish and other
aquatic organisms, moderation of water
temperature changes, and detritus for
aquatic food webs) and help improve or
maintain local water quality. A
vegetated buffer can be established by
maintaining an existing vegetated area
or planting native trees, shrubs, and
herbaceous plants on land next to openwaters.
Mowed lawns are not
considered vegetated buffers because
they provide little or no aquatic habitat
functions and values. The establishment
and maintenance of vegetated buffers is
a method of compensatory mitigation
that can be used in conjunction with the
restoration, creation, enhancement, or
preservation of aquatic habitats to
ensure that activities authorized by
NWPs result in minimal adverse effects
to the aquatic environment. (See
General Condition 19.)
Vegetated Shallows: Vegetated
shallows are special aquatic sites under
the 404(b)(1) Guidelines. They are areas
that are permanently inundated and
under normal circumstances have
rooted aquatic vegetation, such as
seagrasses in marine and estuarine
systems and a variety of vascular rooted
plants in freshwater systems.
Waterbody: A waterbody is any area
that in a normal year has water flowing
or standing above ground to the extent
that evidence of an ordinary high water
mark is established. Wetlands
contiguous to the waterbody are
considered part of the waterbody.
[FR Doc. 02–539 Filed 1–14–02; 8:45 am]
BILLING CODE 3710–92–P
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January 15, 2002 Reissued Nationwide Permits, Conditions, and Definitions
Effect on selected permits often associated with highway projects.
NWP 3. Maintenance No change from existing permit (last reissued March
9, 2000). See pages 2029-2032 and 2078 of FR
notice.
NWP 7. Outfall Structures and
Maintenance
No change from existing permit (last reissued March
9, 2000). See pages 2032 and 2079 of FR notice.
NWP 13. Bank Stabilization No change from existing permit (last reissued
December 13, 1996). See pages 2035 and 2080 of
FR notice.
NWP 14. Linear Transportation
Projects
Changed to eliminate distinction in the acreage
thresholds for public and private linear transportation
crossings. Also changed to apply ½ acre and 1/3
acre thresholds on the basis of whether the project
involves non-tidal or tidal waters. Public linear
transportation projects in non-tidal waters are still
subject to the ½ acre threshold. See pages 2035-
2037 and 2080-2081 of FR notice.
NWP 23. Categorical Exclusions No change from existing permit (last reissued
December 13, 1996). See pages 2043-2044 and
2082 of FR notice.
NWP 33. Temporary
Construction Access
and Dewatering
Effect on General Conditions
1. Navigation No Change
2. Proper Maintenance No Change
3. Soil Erosion and Sediment
Control
No change from existing permit (last reissued
December 13, 1996). See pages 2052 and 2084-
2085 of FR notice.
Changed to encourage that work in waters be
done during low-flow or no-flow conditions (see
pages 2060 and 2089 of FR notice).
4. Aquatic Life Movements Changed to clarify intent of condition to protect
aquatic life cycle movements (see pages 2060
and 2089 of FR notice).
5. Equipment No Change
Page 1 of 4

6. Regional and Case-by-Case
Conditions
No Change
7. Wild and Scenic Rivers No Change
8. Tribal Rights No Change
9. Water Quality Changed to clarify that detailed studies and
documentation are not a requirement. Also
changed to clarify option for satisfying this
condition through compliance with State or local
water quality practices (see pages 2061 and 2089-
2090 of FR notice).
10. Coastal Zone Management No Change
11. Endangered Species No Change
12. Historic Properties No Change
13. Notification Changed for consistency with other revisions in
NWPs and General Conditions (see pages 2061-
2063 and 2090-2092 of FR notice).
14. Compliance Certification No Change
15. Use of Multiple Nationwide
Permits
No Change
16. Water Supply Intakes No Change
17. Shellfish Beds No Change
18. Suitable Material No Change
19. Mitigation Changed to clarify that mitigation will be required
to ensure no more than minimal adverse effects
on aquatic environment. Changed to allow the
Corps to require mitigation that is best for the
aquatic environment. Removed the required 1 to
1 mitigation ratio and buffer restriction. Corps
Districts must ensure that verified NWPs achieve
at least one-for-one mitigation of all wetland
impacts, on an acreage basis, for the Corps
District as a whole. In documenting compliance
with this requirement, Districts should not
include preservation of existing wetlands in their
District-level tally. (See pages2063-2070 and
2092-2093 of FR notice.)
Page 2 of 4

20. Spawning Areas No Change
21. Management of Water
Flows
22. Adverse Effects from
Impoundments
Changed to clarify that detailed studies and
monitoring will not typically be required, but may
be required in appropriate cases (see pages
2070-2071 and 2093 in FR notice).
No Change
23. Waterfowl Breeding Areas No Change
24. Removal of Temporary Fills No Change
25. Designated Critical Resource
Waters
26. Fills Within 100-year
Floodplains
No Change
Changed to delete the “notification” requirement,
to delete the requirement for documenting that
the project meets FEMA approved requirements,
and to modify the condition requiring all projects
authorized by the NWPs to comply with
applicable FEMA approved floodplain
management requirements (see pages 2071-2074
and 2093-2094 of FR notice).
27. Construction Period New. Allows Corps to establish project
completion dates beyond the expiration of the
NWPs for activities for which the Corps has
received notification and a construction schedule
has been reviewed and verification issued by the
Corps (see pages 2074 and 2094 of FR notice).
Effect on Definitions
Best Management Practices
(BMPs)
No Change
Compensatory Mitigation No Change
Creation No Change
Enhancement No Change
Ephemeral Stream No Change
Farm Tract No Change
Page 3 of 4

Flood Fringe No Change
Floodway No Change
Independent Utility No Change
Intermittent Stream No Change
Loss of Waters of the US Changed to clarify the treatment of ephemeral
waters for the purpose of determining
compliance with the threshold limits of the NWPs
(see pages 2074-2075 and 2094 of FR notice.)
Non-tidal Wetland No Change
Open Water No Change
Perennial Stream No Change
Permanent Above-grade Fill No Change
Preservation No Change
Restoration No Change
Riffle and Pool Complex No Change
Single and Complete Project No Change
Stormwater Management No Change
Stormwater Management
Facilities
No Change
Stream Bed No Change
Stream Channelization No Change
Tidal Wetland No Change
Vegetated Buffer No Change
Vegetated Shallows No Change
Waterbody No Change
Page 4 of 4

6692 Federal Register / Vol. 67, No. 30 / Wednesday, February 13, 2002 / Notices
ADDRESSES). The holding of such
hearing is at the discretion of the
Assistant Administrator for Fisheries,
NOAA. All statements and opinions
contained in the permit action
summaries are those of the applicant
and do not necessarily reflect the views
of NMFS.
Species Covered in This Notice
The following species are covered in
this notice:
Sea turtles
Threatened and endangered green
turtle (Chelonia mydas)
Endangered hawksbill turtle
(Eretmochelys imbricata)
Endangered Kemp’s ridley turtle
(Lepidochelys kempii)
Endangered leatherback turtle
(Dermochelys coriacea)
Threatened loggerhead turtle (Caretta
caretta)
Application 1361
The applicant is applying for a 5–year
permit to trawl for turtles, as needed, at
dredge and other construction/
destruction sites to remove the turtles to
a safe location. The turtles will be
captured, tagged, measured and released
offshore away from the dredging
activities. The applicant expects to
capture and relocate 95 green, 11
hawksbill, 160 loggerhead, 14 Kemp’s
ridley and 4 leatherback turtles on the
Atlantic coast and 105 green, 17
hawksbill, 160 loggerhead, 50 Kemp’s
ridley and 11 leatherback turtles on the
Gulf coast.
Dated: February 7, 2002.
Jill Lewandowski,
Acting Chief, Permits, Conservation, and
Education Division, Office of Protected
Resources, National Marine Fisheries Service.
[FR Doc. 02–3522 Filed 2–12–02; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Issuance of Nationwide Permits;
Notice; Correction
AGENCY: Army Corps of Engineers, DoD.
ACTION: Final notice; correction.
SUMMARY: This document contains
corrections to the final notice of
issuance of Nationwide Permits (NWPs)
which was published in the Federal
Register on Tuesday, January 15, 2002
(67 FR 2020–2095).
ADDRESSES: HQUSACE, ATTN: CECW–
OR, 441 ‘‘G’’ Street, NW., Washington,
DC 20314–1000.
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson, at (703) 428–7570, Mr.
Kirk Stark, at (202) 761–4664 or Ms.
Leesa Beal at (202) 761–4599 or access
the U.S. Army Corps of Engineers
Regulatory Home Page at: http://
www.usace.army.mil/inet/functions/
cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION: In the
SUMMARY section on page 2020, the third
and fourth sentences are corrected to
read: ‘‘All NWPs except NWPs 3, 7, 12,
14, 27, 39, 40, 41, 42, 43, and 44 expire
on February 11, 2002. Existing NWPs 3,
7, 12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002.’’ In the last
sentence of the SUMMARY section, the
expiration date is corrected as ‘‘March
18, 2007’’, instead of ‘‘March 19, 2007’’.
On page 2020, in second sentence of
the DATES section, the expiration date is
corrected as ‘‘March 18, 2007’’, instead
of ‘‘March 19, 2007’’. Therefore, the
NWPs published in the January 15,
2002; Federal Register will expire on
March 18, 2007, five years from their
effective date of March 18, 2002.
On page 2020, in the fifth paragraph
of the Background section, the third and
fourth sentences are corrected to read:
‘‘All NWPs except NWPs 3, 7, 12, 14,
27, 39, 40, 41, 42, 43, and 44 expire on
February 11, 2002. Existing NWPs 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44
expire on March 18, 2002.’’ The
expiration date in the last sentence of
this paragraph is corrected as ‘‘March
18, 2007’’, instead of ‘‘March 19, 2007’’.
On page 2020, the paragraph in the
section entitled ‘‘Grandfather Provision
for Expiring NWPs at 33 CFR 330.6’’ is
corrected to read: ‘‘Activities authorized
by the current NWPs issued on
December 13, 1996, (except NWPs 3, 7,
12, 14, 27, 39, 40, 41, 42, 43, and 44),
that have commenced or are under
contract to commence by February 11,
2002, will have until February 11, 2003,
to complete the activity. Activities
authorized by NWPs 3, 7, 12, 14, 27, 39,
40, 41, 42, 43, and 44, that were issued
on March 9, 2000, that are commenced
or under contract to commence by
March 18, 2002, will have until March
18, 2003, to complete the activity.’’
On page 2020, in the ‘‘Clean Water
Act Section 401 Water Quality
Certification (WQC) and Coastal Zone
Management Act (CZMA) Consistency
Agreement’’ section, the date in the fifth
sentence is corrected as ‘‘February 11,
2002’’, instead of ‘‘February 11, 2001’’.
On page 2023, third column, last
sentence, the number 29 is replaced
with the number 19, because this
sentence refers to General Condition 19.
On page 2024, first column, in the
fourth sentence of the last paragraph the
phrase ‘‘less than’’ is replaced by
‘‘greater than’’ because the 30 day
completeness review period for NWP
pre-construction notifications is greater
than the 15 day completeness review
period for standard permit applications.
On page 2031, second column, second
full paragraph, the number 31 is
replaced with the number 3 because this
paragraph refers to NWP 3.
On page 2044, second column, fourth
complete paragraph, the title is
corrected to read ‘‘Stream and Wetland
Restoration Activities’’ because that is
the title of NWP 27.
On page 2054, second column, the
year cited in the third sentence of the
second paragraph is the year 2000, not
1996.
On page 2058, third column, in the
second sentence of the second complete
paragraph the word ‘‘intermittent’’ is
inserted before the phrase ‘‘stream bed’’
because the waiver for filling or
excavating greater than 300 linear feet of
stream beds can apply only to
intermittent stream beds.
On page 2072, third column, last
sentence, the number 19 is inserted after
the term ‘‘General Condition’’ since this
sentence refers to General Condition 19.
On page 2076, second column, the
street address for the Walla Walla
District Engineer is corrected to read
‘‘201 N. Third Avenue‘‘.
On page 2080, second column, third
paragraph from the top of the column
(in the ‘‘Notification’’ section of NWP
12), the word ‘‘or’’ at the end of
paragraph (e) is deleted and the period
at the end of the fourth paragraph
(paragraph (f)) is replaced with ‘‘; or’’.
On page 2080, second column,
paragraph (a) of NWP 13 is corrected to
read: ‘‘No material is placed in excess of
the minimum needed for erosion
protection;’’ The change was not
intended and we are correcting this
paragraph by reinstating the original
text as it appeared in the version of
NWP 13 published in the December 13,
1996, Federal Register (61 FR 65915).
On page 2080, third column, the word
‘‘or’’ is inserted at the end of paragraph
(a)(1) of NWP 14, Linear Transportation
Projects. Paragraph (a) of NWP 14 is
corrected to read: ‘‘a. This NWP is
subject to the following acreage limits:
(1) For linear transportation projects in
non-tidal waters, provided the discharge
does not cause the loss of greater than
1 ⁄2-acre of waters of the US; or (2) For
linear transportation projects in tidal
waters, provided the discharge does not
cause the loss of greater than 1 ⁄3-acre of
waters of the US.’’
On page 2085, second column, the
last sentence of NWP 36 is corrected to
read as follows: ‘‘Dredging to provide
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access to the boat ramp may be
authorized by another NWP, regional
general permit, or individual permit
pursuant to section 10 if located in
navigable waters of the United States.
* * *’’ The change was not intended
and we are correcting this paragraph by
reinstating the original text as it
appeared in the version of NWP 36
published in the December 13, 1996,
Federal Register (61 FR 65919).
On page 2086, in the second full
paragraph of the second column,
‘‘paragraph (e)’’ in the second sentence
is replaced with ‘‘paragraph (f)’’ and
‘‘paragraph (i)’’ in the third sentence is
replaced with ‘‘paragraph (j)’’ to
accurately cite the previous paragraphs
of NWP 39. The last two sentences of
the paragraph before the subdivision
paragraph were incorrectly divided into
two sentences from the original single
sentence and identified as being related
to General Condition 15. This change
was not intended and we are correcting
this paragraph by reinstating the
original last sentence as it exists in the
March 9, 2000, text of NWP 39 (65 FR
12890).
On page 2086, middle column, the
parenthetical statement at the end of the
Note at the end of NWP 39 is corrected
to read ‘‘* * * (except for ephemeral
waters, which do not require PCNs
under paragraph (c)(2), above; however,
activities that result in the loss of greater
than 1 ⁄10 acre of ephemeral waters
would require PCNs under paragraph
(c)(1), above).’’ The addition to the Note
was intended to clarify that under
paragraph (c)(2) only the loss of
ephemeral open waters were not
included in the requirement for a preconstruction
notification (PCN).
However, under paragraph (c)(1) all
ephemeral waters of the United States
are included in the measurement for the
1 ⁄10 acre PCN requirement. The
correction is needed because the
statement in the parentheses could be
incorrectly interpreted to apply to
paragraph (c)(1) and possibly to all
PCNs, not just those affected by
paragraph (c)(2).
For clarity, we are providing the text
of NWP 39 in its entirety, with the
corrections described above:
39. Residential, Commercial, and
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
the use and maintenance of the
structures. Attendant features may
include, but are not limited to, roads,
Federal Register / Vol. 67, No. 30 / Wednesday, February 13, 2002 / Notices
parking lots, garages, yards, utility lines,
stormwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized by this NWP.
Residential developments include
multiple and single unit developments.
Examples of commercial developments
include retail stores, industrial facilities,
restaurants, business parks, and
shopping centers. Examples of
institutional developments include
schools, fire stations, government office
buildings, judicial buildings, public
works buildings, libraries, hospitals,
and places of worship. The activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater than 1 ⁄12-acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless for intermittent
stream beds this criterion is waived in
writing pursuant to a determination by
the District Engineer, as specified
below, that the project complies with all
terms and conditions of this NWP and
that any adverse impacts of the project
on the aquatic environment are
minimal, both individually and
cumulatively;
c. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than 1 ⁄10-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
high water mark (see Note, below); or
(3) The discharge causes the loss of
greater than 300 linear feet of
intermittent stream bed. In such case, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine adverse
environmental effects are minimal both
individually and cumulatively, and
waive the limitation on stream impacts
in writing before the permittee may
proceed;
d. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
e. The discharge is part of a single and
complete project;
6693
f. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable. The notification,
when required, must include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not be
required for the District Engineer’s
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the US exceeding 1 ⁄10-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
h. Any work authorized by this NWP
must not cause more than minimal
degradation of water quality or more
than minimal changes to the flow
characteristics of any stream (see
General Conditions 9 and 21);
i. For discharges causing the loss of
1 ⁄10-acre or less of waters of the US, the
permittee must submit a report, within
30 days of completion of the work, to
the District Engineer that contains the
following information: (1) The name,
address, and telephone number of the
permittee; (2) The location of the work;
(3) A description of the work; (4) The
type and acreage of the loss of waters of
the US (e.g., 1 ⁄2-acre of emergent
wetlands); and (5) The type and acreage
of any compensatory mitigation used to
offset the loss of waters of the US (e.g.,
1 ⁄2-acre of emergent wetlands created
on-site);
j. If there are any open waters or
streams within the project area, the
permittee will establish and maintain, to
the maximum extent practicable,
wetland or upland vegetated buffers
next to those open waters or streams
consistent with General Condition 19.
Deed restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site.
Only residential, commercial, and
institutional activities with structures
on the foundation(s) or building pad(s),
as well as the attendant features, are
authorized by this NWP. The
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6694 Federal Register / Vol. 67, No. 30 / Wednesday, February 13, 2002 / Notices
compensatory mitigation proposal that
is required in paragraph (f) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph (j) of this NWP
will be determined on a case-by-case
basis by the District Engineer for
addressing water quality concerns. The
required wetland or upland vegetated
buffer is part of the overall
compensatory mitigation requirement
for this NWP. If the project site was
previously used for agricultural
purposes and the farm owner/operator
used NWP 40 to authorize activities in
waters of the United States to increase
production or construct farm buildings,
NWP 39 cannot be used by the
developer to authorize additional
activities in waters of the United States
on the project site in excess of the
acreage limit for NWP 39 (i.e., the
combined acreage loss authorized under
NWPs 39 and 40 cannot exceed 1 ⁄2 acre).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
not exceed 1 ⁄2-acre. This includes any
loss of waters associated with
development of individual subdivision
lots. (Sections 10 and 404)
Note: Areas where wetland vegetation is
not present should be determined by the
presence or absence of an ordinary high
water mark or bed and bank. Areas that are
waters of the US based on this criterion
would require a PCN although water is
infrequently present in the stream channel
(except for ephemeral waters, which do not
require PCNs under paragraph (c)(2), above;
however, activities that result in the loss of
greater than 1 ⁄10 acre of ephemeral waters
would require PCNs under paragraph (c)(1),
above).
On page 2088, in the sixth sentence of
the first paragraph in the first column,
the phrase ‘‘an adequate water quality
management plan’’ is replaced with the
phrase ‘‘adequate water quality
management measures’’ to reflect the
modified language in General Condition
9. This sentence is corrected to read
‘‘The facility must have adequate water
quality management measures in
accordance with General Condition 9,
such as a stormwater management
facility, to ensure that the recreational
facility results in no substantial adverse
effects to water quality.’’
On page 2089, first column, the
second sentence of paragraph (c) of
NWP 44 is corrected to read ‘‘Normally,
the water quality management measures
required by General Condition 9 should
address these impacts;’’. In addition, the
second sentence of paragraph (i) of NWP
44 is corrected to read ‘‘Further the
District Engineer may require water
quality management measures to ensure
the authorized work results in minimal
adverse effects to water quality;’’ These
corrections are necessary to reflect the
modified language in General Condition
9.
On page 2089, third column, the text
of General Condition 6 is corrected to
read: ‘‘The activity must comply with
any regional conditions that may have
been added by the Division Engineer
(see 33 CFR 330.4(e)) and with any case
specific conditions added by the Corps
or by the state or tribe in its Section 401
Water Quality Certification and Coastal
Zone Management Act consistency
determination.’’ The change to General
Condition 6 that was published in the
January 15, 2002, Federal Register was
not intended and we are correcting this
sentence by reinstating the original text
as it existed in the March 9, 2000,
NWPs.
On page 2090, first column, the word
‘‘Section’’ in the parenthetical at the end
of General Condition 10 is replaced with
‘‘33 CFR’’ so that the parenthetical reads
‘‘(see 33 CFR 330.4(d))’’.
On page 2090, at the top of the second
column, the second Internet URL is
replaced with ‘‘* * * http://
www.nmfs.noaa.gov/prot_res/overview/
es.html * * *’’ because the Internet
address for the National Marine
Fisheries Service home page for
endangered species has been changed.
On page 2090, third column, in
paragraph (b)(4) of General Condition
13, NWP 40 should be added to the list
of NWPs that require submission of
delineations of special aquatic sites with
pre-construction notifications.
Therefore, paragraph (b)(4) of General
Condition 13 is corrected to read ‘‘For
NWPs 7, 12, 14, 18, 21, 34, 38, 39, 40,
41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
13(f));’’
On page 2090, third column, in
paragraph (b)(6) of General Condition
13, the word ‘‘Projects’’ replaces the
word ‘‘Crossings’’, because the title of
NWP 14 is ‘‘Linear Transportation
Projects’’.
On page 2090, third column, in
paragraph (b)(8) of General Condition
13, the word ‘‘Activities’’ is inserted
after the word ‘‘Restoration’’ because the
title of NWP 27 is ‘‘Stream and Wetland
Restoration Activities’’.
On page 2091, first column, in
paragraph (b)(10) of General Condition
13, the word ‘‘Projects’’ is replaced with
the word ‘‘Facilities’’ because the title of
NWP 31 is ‘‘Maintenance of Existing
Flood Control Facilities’’.
On page 2094, third column, we are
correcting the definition of ‘‘Loss of
Waters of the US’’ by deleting the last
sentence and inserting the following
sentence after the fourth sentence of this
definition: ‘‘Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43.’’
Due to the number of corrections
made to the definition of ‘‘Loss of
Waters of the US’’, we are providing the
text of this definition in its entirety,
with the corrections described above:
Loss of Waters of the US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills that change
an aquatic area to dry land, increase the
bottom elevation of a waterbody, or
change the use of a waterbody. The
acreage of loss of waters of the US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an NWP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of stream bed that is filled or
excavated. Impacts to ephemeral
streams are not included in the linear
foot measurement of loss of stream bed
for the purpose of determining
compliance with the linear foot limits of
NWPs 39, 40, 42, and 43. Waters of the
US temporarily filled, flooded,
excavated, or drained, but restored to
preconstruction contours and elevations
after construction, are not included in
the measurement of loss of waters of the
US.
In the January 15, 2002, Federal
Register, it was stated that the definition
was being revised (to clarify that
ephemeral waters and streams are not
included in the acreage or linear
thresholds for NWPs) to comport with
language in the preamble of the March
9, 2000 Federal Register notice.
However, the language in the preamble
of the March 9, 2000 Federal Register
notice (65 FR 12881, third column) does
not support this revision. Rather, the
referenced preamble states, ‘‘During our
review of the comments received in
response to the July 21, 1999, Federal
Register notice, we found an error in the
proposed definition of the term, ‘‘loss of
waters of the United States.’’ In the
fourth sentence of the draft definition,
we stated that the loss of stream bed
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includes the linear feet of perennial or
intermittent stream bed that is filled or
excavated. This statement is inaccurate
because ephemeral stream bed that is
filled or excavated can also be
considered a loss of waters of the United
States. However, the 300 linear foot
limit for stream beds filled or excavated
does not apply to ephemeral streams.
We have modified this sentence to
define the loss of stream bed as the
linear feet of stream bed that is filled or
excavated.’’ Thus, the modification of
this definition was intended to clarify
that activities that involve filling or
excavating ephemeral streams are not
included in the linear foot limits for
filling or excavating stream beds in
NWPs 39, 40, 42, and 43. However, it
was not intended to exempt ephemeral
waters or streams from calculations of
impacted acreages to determine PCN or
maximum acreage requirements in
accordance with NWPs 39, 40, 42, and
43.
In the August 9, 2001, Federal
Register notice (66 FR 42099) we
proposed to modify the definition of
‘‘Loss of Waters of the US’’ by adding
the sentence ‘‘* * * The loss of stream
bed includes the linear feet of perennial
stream or intermittent stream that is
filled or excavated * * *’’. The
proposed change was in response to a
commitment to clearly state in the text
of the NWPs (which includes the
definitions) that the 300 linear foot limit
in NWPs 39, 40, 42, and 43 for filling
and excavating stream beds would only
apply to intermittent and perennial
streams, not to ephemeral streams.
In the January 15, 2002, Federal
Register notice (67 FR 2074–2075) we
erroneously stated that both the acreage
and linear limits of the NWPs do not
apply to ephemeral waters. This was
never intended to be adopted as policy
for the NWPs or the Corps regulatory
program. A previously stated, in the first
column of page 2075 of the January 15,
2002, Federal Register notice, we refer
to page 12881 of the March 9, 2000,
Federal Register notice, which only
discusses the 300 linear foot limit, not
the acreage limits of the NWPs. Our
intent is to continue to apply acreage
limits of NWPs to activities that result
in the permanent loss of ephemeral
waters, but the linear foot limits of the
NWPs (i.e., NWPs 39, 40, 42, and 43) for
filling or excavating stream beds would
not apply to activities that involve
filling or excavating ephemeral streams.
The last sentence of the definition of
‘‘Loss of Waters of the US’’ as published
in the January 15, 2002, Federal
Register notice does not comport with
remainder of this NWP package.
Federal Register / Vol. 67, No. 30 / Wednesday, February 13, 2002 / Notices
Therefore, we are correcting this
definition as described above.
We believe that correcting the text of
NWP 39 and the definition of ‘‘Loss of
Waters of the US’’ through the
publication of this correction notice is
appropriate. Nevertheless, in order to
give all interested parties further
opportunity to comment on this matter,
we intend to publish a Federal Register
notice to solicit public comments on
those two corrections. If we determine
that any other matter relating to the final
NWPs requires correction or
clarification, but that matter was not
adequately dealt with in this correction
notice, we will address that additional
matter in the forthcoming Federal
Register notice, as well. We expect to
publish that Federal Register notice
within a few weeks.
Dated: February 7, 2002.
Lawrence A. Lang,
Assistant Chief, Operations Division,
Directorate of Civil Works.
[FR Doc. 02–3555 Filed 2–12–02; 8:45 am]
BILLING CODE 3710–92–P
DEPARTMENT OF DEFENSE
Uniformed Services University of the
Health Sciences
Sunshine Act Meeting
AGENCY HOLDING THE MEETING:
Uniformed Services University of the
Health Sciences.
TIME AND DATE: 8:00 a.m. to 4:00 p.m.,
February 5, 2002.
PLACE: Uniformed Services University
of the Health Sciences, Board of Regents
Conference Room (D3001), 4301 Jones
Bridge Road, Bethesda, MD 20814–4799.
STATUS: Open—under ‘‘Government in
the Sunshine Act’’ (5 U.S.C. 552b(e)(3)).
MATTERS TO BE CONSIDERED:
8:30 a.m. Meeting—Board of Regents
(1) Approval of Minutes—November 14,
2001
(2) Faculty Matters
(3) Department Reports
(4) Financial Report
(5) Report—President, USUHS
(6) Report—Dean, School of Medicine
(7) Report—Dean, Graduate School of
Nursing
(8) Comments—Chairman, Board of
Regents
(9) New Business
CONTACT PERSON FOR MORE INFORMATION:
Mr. Bobby D. Anderson, Executive
Secretary, Board of Regents, (301) 295–
3116.
6695
Dated: February 8, 2002.
Linda Bynum,
OSD Federal Register Liaison Officer,
Department of Defense.
[FR Doc. 02–3683 Filed 2–11–02; 3:32 pm]
BILLING CODE 5001–08–M
DEPARTMENT OF EDUCATION
Submission for OMB Review;
Comment Request
AGENCY: Department of Education.
SUMMARY: The Leader, Regulatory
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of the Chief Information Officer invites
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DATES: Interested persons are invited to
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ADDRESSES: Written comments should
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Attention: Lauren Wittenberg, Desk
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Lauren_Wittenberg@omb.eop.gov.
SUPPLEMENTARY INFORMATION: Section
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Recordkeeping burden. OMB invites
public comment.
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PUBLIC NOTICE
US Army Corps
of Engineers
Rock Island District NATIONWIDE PERMITS Date: May 20, 2002
PUBLIC NOTICE ANNOUNCING REGIONAL CONDITIONS
FOR NATIONWIDE PERMITS
On May 17, 2002, the Mississippi Valley Division Engineer approved Regional Conditions for the
Nationwide Permits (NWPs). These conditions apply to all activities authorized by NWPs. Regional conditions
provide additional protection for the aquatic environment by ensuring that the NWPs authorize only those activities
with minimal adverse effects on the aquatic environment. Regional conditions will help ensure protection of high
value waters within the District.
The Rock Island District has posted its Corps regional conditions for the NWPs on its Internet home page
at: http://www.mvr.usace.army.mil/Regulatory/nationwidepermits/NationWidePermits-HomePage.htm. A copy of the
regional conditions is provided in Attachment 1.
NWPs.
Iowa Department of Natural Resources has proposed to issue Section 401 Water Quality Certification for all
Illinois Environmental Protection Agency has issued Section 401 Water Quality Certification for NWPs 3, 4,
5, 6, 7, 12, 13, 14, 20, 22, 27, 29, 36, 38, 41, and 44.
The Division Engineer considers the Missouri Department of Natural Resources’ Section 401 Water Quality
Certifications for selected NWPs denied. Individual Section 401 Water Quality Certifications will be required for any
project requiring authorization under Section 404 of the Clean Water Act.
Questions concerning implementation of the new and modified NWPs and conditions or the Corps regional
conditions within the Rock Island District should be sent to Rock Island District, Corps of Engineers,
ATTN: Ms. Donna M. Jones, P.E., CEMVR-OD-PE, Post Office Box 2004, Rock Island, Illinois 61204-2004.
NOTICE TO POSTMASTERS:
Please post this notice for 30 days from the issuance date.
Donna M. Jones, P.E.
Chief, Enforcement Section
Regulatory Branch
NOTICE TO EDITORS:
This notice is provided as background information for your use in formatting news stories. This notice is not a
contract for classified display advertis ing. For more information call the Rock Island District Public Affairs Office,
309/794-5274.

Attachment 1
NOTE: None of the regional conditions pertain to paragraph a. of Nationwide Permit Number 40.
REGIONAL CONDITIONS WITHIN IOWA
1. Side slopes of a newly constructed channel will be no steeper than 2:1 and planted to permanent, perennial, native
vegetation if it is not armored.
2. NWPs with mitigation may require recording of the permit with the Registrar of Deeds or other appropriate official
charged with the responsibility for maintaining records of title to, or interest in, real property and provide proof of
recording to the Corps.
3. Mitigation shall be scheduled for construction prior to or concurrent with the construction of the main project.
REGIONAL CONDITIONS WITHIN ILLINOIS
NOTE: The Chicago District has proposed alternate regional conditions for work in McHenry, Kane, Lake, DuPage, Will and Cook
Counties in Illinois. Information regarding Chicago District requirements can be accessed through their website at
http://www.lrc.usace.army.mil/co-r/. If you have any questions regarding the Chicago District proposal, please contact Ms. Karon
Marzec, Senior Project Manager, by telephone at 312/353-6400, ext. 4030 or e-mail karon.m.marzec@usace.army.mil.
1. Bank stabilization projects involving armoring of the streambank with riprap or the construction of retaining walls
within High Value Subwatersheds exceeding 250 feet will require a PCN to the Corps of Engineers in accordance with
Notification Condition (Number 13).
2. A proposed activity to be authorized under Nationwide Permits 12 or 14 within the Cache River Wetlands Areas
(Alexander and Pulaski Counties), Kaskaskia River (Clinton, St. Clair, and Washington Counties), or Wabash River
(Gallatin and White Counties) will require a PCN to the Corps of Engineers in accordance with the Notification
Condition (Number 13).
3. Stormwater management facilities shall not be located within an intermittent stream.
High Value Subwatersheds – The state of Illinois has defined these areas through a combination of factors. Various
sources of information were used to analyze and rank subwatersheds. Federal Threatened and Endangered Species,
% of wetlands in the watershed, Natural Areas Inventory, and Biological Stream Categorization were factors used for
High Value designation. A map highlighting these areas is attached with a numerical listing of the
8-digit hydrologic units.
REGIONAL CONDITIONS WITHIN MISSOURI
1. NWP 3 – Maintenance. The permittee must notify the District Engineer when repairing, rehabilitating or replacing
low water crossings if: discharges of fill or dredged material would raise or lower the lowest elevation of the crossing
by a total of 12-inches or more, or when removing the structure. The permittee must propose and employ measures to
mitigate the potential impact of impounding gravel above the low water crossing or of releasing impounded-gravel
downstream of the structure. Such mitigation might include: removing impounded gravel in the unstable area
upstream of the low water crossing to prevent it from being transported downstream and/or constructing a notched
weir to slow the release of impounded gravel from upstream of the low water crossing.
2. NWP 12 - Utility Activities. Except for a minimal corridor that is essential for operation and maintenance of the
utility line, the right-of-way must be allowed to re -vegetate naturally to native tree species when forested wetlands or
riparian wooded areas are cleared in order to construct the utility line. This does not preclude the planting of native
vegetation.
3. NWP 23 - Approved Categorical Exclusions. The permittee must notify the District Engineer in accordance with
the "Notification" general condition of the NWPs (general condition 13) when a Federal agency’s categorically
excluded activities are in or affect waters of the United States. This notification must include a delineation of special
aquatic sites, including wetlands. In addition to information required by NWP general condition 13 (b), the
notification must identify the approved categorical exclusion that applies (i.e. list Federal Register citation) and
include documentation that the project fits the categorical exclusion.

4. NWP 27 - Stream and Wetland Restoration Activities. NWP 27 will not be used to authorize discharges
associated with relocation of forested wetlands.
5. NWP 29 - Notification Requirements. Prior to issuing a verification letter for this NWP, the District Engineer will
coordinate all requests for NWP 29 with the U.S. Fish and Wildlife Service (USFWS) for its evaluation of impacts to
Federally listed endangered species. Coordination with the USFWS will follow the procedures in general condition
13(e) for agency coordination in January 15, 2002, Federal Register, Issuance of Nationwide Permits; Notice (67 FR
2092).
6. NWP 43 - Stormwater Management Facilities. The permittee must notify the District Engineer in accordance with
the "Notification" general condition of the NWPs (general condition 13) when a regulated in-stream basin impacts an
intermittent stream. The permittee's mitigation plan must specifically identify measures to prevent the export of
contaminants directed into any in-stream basin by the upland collection system. The permittee must also include
mitigation for any in-stream projects that would adversely impact normal aquatic life migration. This NWP does not
authorize the retention of water, in excess of that required to meet stormwater management requirements, for other
purposes such as recreational lakes, reflecting pools and irrigation.
7. Recording Mitigation (Applicable To All NWPs). NWPs with mitigation may require recording of the permit
mitigation areas with the Registrar of Deeds or other appropriate official charged with the responsibility for
maintaining records of title to or interest in real property and provide proof of recording to the Corps.
8. Notification Requirement for Activities Proposed in Fens, Seeps and Bogs (Applicable To All NWPs). The
permittee must notify the District Engineer in accordance with the "Notification" general condition of the NWPs
(general condition 13) when any regulated activity impacts a fen, seep or bog of any size.
9. Notification for Confined Animal Feeding Operations (Applicable To All NWPs). The permittee must notify the
District Engineer in accordance with the "Notification" general condition for agency coordination (general condition
13(e)) about any discharges of dredged or fill material associated with the construction of any portion of a confined
animal feeding operation (CAFO).
10. Seasonal Restrictions for Activities Proposed in Spawning Areas (Applicable To All NWPs). In addition to the
requirements of NWP general condition 20, for any regulated activity, the following specific seasonal restrictions
apply. Between the closed dates listed in the Missouri Combined Stream Spawning List, the permittee must not
excavate from or discharge into the listed waters. The list of waters with seasonal restrictions is available on request
from the Corps or at http://www.nwk.usace.army.mil/regulatory/gravel.txt (Missouri Combined Stream Spawning
Season List).
11. District-Designated Waters.
St. Louis District: For any discharge or excavation activity requiring authorization, proposed under NWPs 39, 41, 42
and 43, in any ephemeral, intermittent, and perennial streams in the following Missouri watersheds, the permittee
must notify the District Engineer in accordance with the "Notification" general condition 13 (Federal Register,
67 FR 2090-2092).
St. Louis County: Wildhorse Creek, Bonhomme Creek, Creve Coeur Creek, Fox Creek, and Deer Creek.
St. Charles County: Dardenne Creek and Peruque Creek.
Jefferson County: Saline/Sugar/Romaine Creeks, Rock Creek, Dulin/Bourne/Heads/Bear Creeks, La Barque Creek,
Glaize Creek, and Joachim/Sandy Creeks.
Ste. Genevieve and Perry Counties : Saline Creek.
Cape Girardeau County: Indian Creek, Williams/Hubble/Randol/ Goose Creeks, Ramsey Branch, Ranney Creek, and
Byrd Creek.
Memphis District: For any regulated activity proposed under NWPs 14, 39, 41, 42 and 43, in the following waters; the
permittee must notify the Dis trict Engineer in accordance with the "Notification" general condition 13 (Federal
Register, 67 FR 2090-2092).
St. Francis Floodway from 1 mile below Wappapello Lake to the Arkansas/Missouri state line below U.S. Highway
314, in Dunklin County.

Castor River from the Union Pacific Railroad bridge, in Stoddard County, to the headwater levee, in Bollinger County.
Ramsey Branch from St. Louis District line to Headwater Diversion Channel in Cape Girardeau and Scott Counties.
Ramsey Creek from the Headwater Diversion Channel to State Routes PP & N (East Branch), and Scott County Route
325 (West Branch) in Scott County.

CATALOG
UNIT* SUB BASIN NAME
CATALOG
UNIT* SUB BASIN NAME
4040001 GREAT LAKES/CALUMET 7080101 MISS NORTH
4040002 GREAT LAKES/CALUMET 7080101 MISS NORTH
5120108 VERMILION (WABASH) 7080101 MISS NORTH
5120109 VERMILION (WABASH) 7080104 MISS NORTH CENTRAL
5120109 VERMILION (WABASH) 7080104 MISS NORTH CENTRAL
5120109 VERMILION (WABASH) 7080104 MISS NORTH CENTRAL
5120109 VERMILION (WABASH) 7090001 ROCK
5120109 VERMILION (WABASH) 7090003 PECATONICA
5120109 VERMILION (WABASH) 7090003 PECATONICA
5120109 VERMILION (WABASH) 7090004 PECATONICA
5120109 VERMILION (WABASH) 7090005 ROCK
5120109 VERMILION (WABASH) 7090005 ROCK
5120109 VERMILION (WABASH) 7090005 ROCK
5120111 EMBARRAS/MID WABASH 7090005 ROCK
5120112 EMBARRAS/MID WABASH 7090005 ROCK
5120112 EMBARRAS/MID WABASH 7090005 ROCK
5120112 EMBARRAS/MID WABASH 7090006 KISHWAUKEE
5120112 EMBARRAS/MID WABASH 7090006 KISHWAUKEE
5120113 LTL WAB/LOW WAB/SKILLET FK 7090006 KISHWAUKEE
5120114 LTL WAB/LOW WAB/SKILLET FK 7090006 KISHWAUKEE
5140203 SALINE/BAY 7090006 KISHWAUKEE
5140203 SALINE/BAY 7090006 KISHWAUKEE
5140203 SALINE/BAY 7090006 KISHWAUKEE
5140203 SALINE/BAY 7090007 GREEN
5140203 SALINE/BAY 7090007 GREEN
5140203 SALINE/BAY 7110001 MISS CENTRAL
5140203 SALINE/BAY 7110001 MISS CENTRAL
5140203 SALINE/BAY 7110004 MISS CENTRAL
5140203 SALINE/BAY 7110004 MISS CENTRAL
5140204 SALINE/BAY 7110004 MISS CENTRAL
5140204 SALINE/BAY 7110009 MISS SOUTH CENTRAL
5140204 SALINE/BAY 7120001 KANKAKEE/IROQUOIS
5140204 SALINE/BAY 7120001 KANKAKEE/IROQUOIS
5140204 SALINE/BAY 7120001 KANKAKEE/IROQUOIS
5140204 SALINE/BAY 7120001 KANKAKEE/IROQUOIS
5140204 SALINE/BAY 7120001 KANKAKEE/IROQUOIS
5140204 SALINE/BAY 7120001 KANKAKEE/IROQUOIS
5140204 SALINE/BAY 7120001 KANKAKEE/IROQUOIS
5140206 CACHE 7120002 KANKAKEE/IROQUOIS
5140206 CACHE 7120002 KANKAKEE/IROQUOIS
5140206 CACHE 7120002 KANKAKEE/IROQUOIS
5140206 CACHE 7120003 GREAT LAKES/CALUMET
5140206 CACHE 7120003 GREAT LAKES/CALUMET
5140206 CACHE 7120003 GREAT LAKES/CALUMET
5140206 CACHE 7120003 GREAT LAKES/CALUMET
5140206 CACHE 7120003 GREAT LAKES/CALUMET
7060005 MISS NORTH 7120003 GREAT LAKES/CALUMET
7060005 MISS NORTH 7120004 DES PLAINES
7060005 MISS NORTH 7120004 DES PLAINES
7060005 MISS NORTH 7120004 DES PLAINES
7060005 MISS NORTH 7120004 DES PLAINES
7060005 MISS NORTH 7120004 DES PLAINES

CATALOG
UNIT* SUB BASIN NAME
CATALOG
UNIT* SUB BASIN NAME
7120004 DES PLAINES 7130009 SALT FK, SANGAMON
7120004 DES PLAINES 7130009 SALT FK, SANGAMON
7120004 DES PLAINES 7130010 LA MOINE
7120004 DES PLAINES 7130010 LA MOINE
7120004 DES PLAINES 7130010 LA MOINE
7120004 DES PLAINES 7130010 LA MOINE
7120004 DES PLAINES 7130011 LOWER ILLINOIS
7120004 DES PLAINES 7130011 LOWER ILLINOIS
7120004 DES PLAINES 7130011 LOWER ILLINOIS
7120004 DES PLAINES 7140101 MISS SOUTH CENTRAL
7120004 DES PLAINES 7140101 MISS SOUTH CENTRAL
7120004 DES PLAINES 7140101 MISS SOUTH CENTRAL
7120004 DES PLAINES 7140101 MISS SOUTH CENTRAL
7120004 DES PLAINES 7140101 MISS SOUTH CENTRAL
7120005 UPPER ILLINOIS 7140105 MISS SOUTH
7120005 UPPER ILLINOIS 7140105 MISS SOUTH
7120005 UPPER ILLINOIS 7140105 MISS SOUTH
7120006 UPPER FOX 7140105 MISS SOUTH
7120006 UPPER FOX 7140105 MISS SOUTH
7120006 UPPER FOX 7140105 MISS SOUTH
7120006 UPPER FOX 7140105 MISS SOUTH
7120006 UPPER FOX 7140106 BIG MUDDY
7120006 UPPER FOX 7140106 BIG MUDDY
7120006 UPPER FOX 7140106 BIG MUDDY
7120006 UPPER FOX 7140106 BIG MUDDY
7120006 UPPER FOX 7140106 BIG MUDDY
7120007 LOWER FOX 7140108 CACHE
7120007 LOWER FOX 7140108 CACHE
7120007 LOWER FOX 7140108 CACHE
7120007 LOWER FOX 7140108 CACHE
7120007 LOWER FOX 7140108 CACHE
7120007 LOWER FOX 7140201 UPPER KASKASKIA
7120007 LOWER FOX 7140202 MIDDLE KASK/SHOAL
7130001 UPPER ILLINOIS 7140202 MIDDLE KASK/SHOAL
7130001 UPPER ILLINOIS 7140202 MIDDLE KASK/SHOAL
7130001 UPPER ILLINOIS 7140203 MIDDLE KASK/SHOAL
7130001 UPPER ILLINOIS 7140203 MIDDLE KASK/SHOAL
7130002 VERMILION 7140204 LOWER KASKASKIA
7130002 VERMILION 7140204 LOWER KASKASKIA
7130003 MIDDLE ILLINOIS 7140204 LOWER KASKASKIA
7130003 MIDDLE ILLINOIS 7140204 LOWER KASKASKIA
7130003 MIDDLE ILLINOIS 7140204 LOWER KASKASKIA
7130003 MIDDLE ILLINOIS
7130004 MACKINAW * - Leading zero does not display for
7130004 MACKINAW these 8-digit hydrologic units.
7130004 MACKINAW
7130004 MACKINAW
7130005 SPOON
7130006 UPPER SANGAMON
7130006 UPPER SANGAMON
7130006 UPPER SANGAMON
7130007 LOWER SANGAMON/S FORK
7130008 LOWER SANGAMON/S FORK

For BDE Information Memorandum 02-41, CD-ROMs were provided to each of the nine
District Program Development Engineers. All other recipients received the cover
memorandum and explanatory note.

General NPDES Permit No. ILR10
Issued May 30, 2003
Summary of Changes from ILR10 dated May 14, 1998
Note: Where revised language in the permit is quoted, the new wording is underlined
and any deleted wording is indicated with strikethrough.
Part I. COVERAGE UNDER THIS PERMIT
Paragraph B.1. has been revised to reflect the change to the one acre
threshold under the Phase II NPDES requirements. This paragraph also has
been revised to cover construction sites specifically designated by the Illinois
Environmental Protection Agency (IEPA) that have the potential for contribution
to a violation of water quality standards or significant contribution of pollutants
to waters of the State.
A new item B.3.f. has been added to recognize that ILR 10 does not authorize
storm water discharges to receiving waters identified under 35 Ill. Adm. Code
302.105(d)(6) (i.e., “waters of particular biological significance”).
Subsection C.3. has been revised to eliminate the provision for authorization
48-hours after the date the Notice of Intent (NOI) is postmarked. The permit
now only provides for authorization 30 days after the date the NOI is
postmarked.
Part II. NOTICE OF INTENT REQUIREMENTS
Paragraph A.1. has been revised to eliminate the reference to submittal of the
NOI 48-hours prior to commencement of construction. All NOIs now must be
submitted at least 30 days prior to the commencement of construction.
Paragraph A.2. has been revised to indicate that discharges that are covered
by a valid Illinois General NPDES Construction Site Activities Permit as of May
31, 2003 are automatically covered by the new ILR10.
Paragraph C.7. has been revised to indicate that the NOI may indicate that a
storm water pollution prevention plan (SWPPP) “…has been or will be
prepared…prior to the start of contruction…”.
Part III. SPECIAL CONDITIONS, MANAGEMENT PRACTICES, AND OTHER NON-
NUMERIC LIMITATIONS
Paragraph A.2.b. has been revised to refer to “…uncontaminated waterline
flushings…”.
New subsections B. and C. have been added. Subsection B. addresses
“Discharges into Receiving Waters With an Approved Total Maximum Daily
Load (TMDL)”. Subsection C. indicates that discharges covered by ILR10
cannot cause or contribute to a violation of any applicable water quality
standard.

ILR10 - Summary of Changes
Page 2
Part IV. STORM WATER POLLUTION PREVENTION PLANS
Subsection B. has been revised to include “Signature, Plan Review and
Notification”. A new paragraph B.1. has been added to require written
notification to IEPA prior to commencement of construction, indicating that the
SWPPP has been completed and is available at the construction site. (The
updated 6/03 NOI form, available on IEPA’s web site, includes a field to
address this requirement. If the SWPPP is completed prior to submittal of the
NOI form, the “yes” box would be checked in the appropriate field on the form.
In this case, a separate notification to IEPA concerning completion of the
SWPPP would not be necessary. If the SWPPP is not completed by the time
the NOI form is submitted, the “no” box would be checked and separate
notification to IEPA would be required prior to commencement of construction.)
Paragraph B.5. has been revised to reflect that SWPPPs “…shall be available
to the public at any reasonable time upon request under Section 308(b) of the
CWA.”
A new paragraph D.2.a.(iii) has been added to address “Best Management
Practices for Impaired Waters.”
A new paragraph D.2.b.(iii) has been added to indicate that unless otherwise
specified in the Illinois Urban Manual, the SWPPP shall be designed for a
storm event equal to or greater than a 25-year 24-hour rainfall event.
Paragraph D.2.d.(i) has been revised to refer to the “Illinois Urban Manual,
2002 1995”.
Paragraph D.4. has been revised to add clarification on the meaning of the
term “qualified personnel.”
Paragraph D.4.c. has been revised to change the wording on retention of
inspection reports to “…at least three years from the date that the permit
coverage expires or is terminated after the date of inspection.”
Part V. RETENTION OF RECORDS
Subsection A. has been revised to indicate that records associated with the use
of ILR10 on a project shall be retained “…for a period of at least three years
from the date that the permit coverage expires or is terminated site is finally
stabilized.”
Part VI. STANDARD PERMIT CONDITIONS
Subsection A. has been revised to remove the paragraphs describing the
“Penalties for Violations of Permit Conditions.”
Paragraph N.1. has been revised to add criteria upon which IEPA may base
decisions to require an individual NPDES permit. It also now includes a

ILR10 - Summary of Changes
Page 3
provision authorizing IEPA to require monitoring to determine whether an
individual permit is required.
Subsection Q. has been revised to eliminate references in the first paragraph to
different inspection and entry procedures for construction sites which discharge
through a municipal separate storm sewer.
Paragraph Q.3. has been revised to include additional aspects subject to IEPA
inspection (i.e., “…practices or operations regulated or required under this
permit…”).
A new paragraph Q.4. has been added to recognize IEPA’s authority to
“Sample or monitor at reasonable times for the purposes of assuring permit
compliance or as otherwise authorized by the Clean Water Act, any substances
or parameters at any location.”
Part VII. REOPENER CLAUSE
Subsection B. has been revised to reference “…any other applicable public
participation procedures.”
A new subsection C. has been added to describe the circumstances under
which IEPA will reopen and modify General Permit ILR10.
Part VIII. DEFINITIONS
Criterion (x) in the definition for ‘Storm Water Associated with Industrial Activity’
has been revised to refer to the new one-acre threshold under Phase II of
NPDES and to include a new clause recognizing the IEPA’s authority to
designate construction sites pursuant to Part I.B.1.

Expiration Date:
General NPDES Permit No. ILR10
Illinois Environmental Protection Agency
Division of Water Pollution Control
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois 62794-9276
www.epa.state.il.us
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
General NPDES Permit
For
Storm Water Discharges From Construction Site Activities
May 31, 2008
Issue Date:
Effective Date:
May 30, 2003
June 1, 2003
In compliance with the provisions of the Illinois Environmental Protection Act, the Illinois Pollution Control Board Rules and Regulations (35 Ill. Adm. Code,
Subtitle C, Chapter I), and the Clean Water Act, and the regulations thereunder the following discharges are authorized by this permit, in accordance with the
conditions and attachments herein:
Part I. COVERAGE UNDER THIS PERMIT
Permit Signed May 30, 2003
Toby Frevert, P.E.
Manager
Division of Water Pollution Control
A. Permit Area. The permit covers all areas of the State of Illinois with discharges to any waters of the State.
B. Eligibility.
1. This permit shall authorize all discharges of storm water associated with industrial activity from construction sites that will result in the disturbance of
one or more acres total land area, construction sites less than one acre of total land that is part of a larger common plan of development or sale if
the larger common plan will ultimately disturb one or more acres total land area or construction sites that are designated by the Agency that have
the potential for contribution to a violation of water quality standard or significant contribution of pollutants to waters of the State, occurring after the
effective date of this permit (including discharges occurring after the effective date of this permit where the construction activity was initiated before
the effective date of this permit), except for discharges identified under paragraph I.B.3 (Limitations on Coverage).
2. This permit may only authorize a storm water discharge associated with industrial activity from a construction site that is mixed with a storm water
discharge from an industrial source other than construction, where:
a. the industrial source other than construction is located on the same site as the construction activity;
b. storm water discharges associated with industrial activity from the areas of the site where construction activities are occurring are in
compliance with the terms of this permit; and
c. storm water discharges associated with industrial activity from the areas of the site where industrial activity other than construction are
occurring (including storm water discharges from dedicated asphalt plants and dedicated concrete plants) are covered by a different NPDES
general permit or individual permit authorizing such discharges.
3. Limitations on Coverage. The following storm water discharges from construction sites are not authorized by this permit:
a. storm water discharges associated with industrial activity that originate from the site after construction activities have been completed and the
site has undergone final stabilization;
b. discharges that are mixed with sources of non-storm water other than discharges identified in Part III.A (Prohibition on Non-Storm Water
Discharges) of this permit and in compliance with paragraph IV.D.5 (Non-Storm Water Discharges) of this permit;
c. storm water discharges associated with industrial activity that are subject to an existing NPDES individual or general permit or which are
issued a permit in accordance with Part VI.N (Requiring an Individual Permit or an Alternative General Permit) of this permit. Such discharges
may be authorized under this permit after an existing permit expires provided the existing permit did not establish numeric limitations for such
discharges;

Page 2
C. Authorization.
NPDES Permit No. ILR10
d. storm water discharges from construction sites that the Agency has determined to be or may reasonably be expected to be contributing to a
violation of a water quality standard; and
e. Storm water discharges that the Agency, at its discretion, determines are not appropriately authorized or controlled by this general permit.
f. Storm water discharges to any receiving water identified under 35 Ill. Adm. Code 302.105(d)(6).
1. In order for storm water discharges from construction sites to be authorized to discharge under this general permit a discharger must submit a
Notice of Intent (NOI) in accordance with the requirements of Part II below, using an NOI form provided by the Agency, or be covered by a valid
Illinois General NPDES Construction Site Activities Permit.
2. Where a new operator (contractor) is selected after the submittal of an NOI under Part II below, a new Notice of Intent (NOI) must be submitted by
the owner in accordance with Part II.
3. For projects that have complied with State law on historic preservation and endangered species prior to submittal of the NOI, through coordination
with the Illinois Historic Preservation Agency and the Illinois Department of Natural Resources or through fulfillment of the terms of interagency
agreements with those agencies, the NOI shall indicate that such compliance has occurred.
Unless notified by the Agency to the contrary, dischargers who submit an NOI in accordance with the requirements of this permit are authorized
to discharge storm water from construction sites under the terms and conditions of this permit in 30 days after the date the NOI is post marked.
The Agency may deny coverage under this permit and require submittal of an application for an individual NPDES permit based on a review of
the NOI or other information.
Part II. NOTICE OF INTENT REQUIREMENTS
A. Deadlines for Notification.
1. To receive authorization under this general permit, a discharge must either be covered by a valid Illinois General NPDES Construction Site Permit,
or a completed Notice of Intent (NOI) in accordance with Part VI.G (Signatory Requirements) and the requirements of this part must be submitted
prior to the commencement of construction. The NOI must be submitted at least 30 days prior to the commencement of construction.
2. Discharges that are covered by a valid Illinois General NPDES Construction Site Activities Permit as of May 31, 2003 are automatically covered by
this permit.
3. A discharger may submit an NOI in accordance with the requirements of this part after the start of construction. In such instances, the Agency may
bring an enforcement action for any discharges of storm water associated with industrial activity from a construction site that have occurred on or
after the start of construction.
B. Failure to Notify. Dischargers who fail to notify the Agency of their intent to be covered, and discharge storm water associated with construction site
activity to Waters of the State without an NPDES permit, are in violation of the Environmental Protection Act and Clean Water Act.
C. Contents of Notice of Intent. The Notice of Intent shall be signed in accordance with Part VI.G (Signatory Requirements) of this permit by all of the
entities identified in paragraph 2 below and shall include the following information:
1. The mailing address, and location of the construction site for which the notification is submitted. Where a mailing address for the site is not
available, the location can be described in terms of the latitude and longitude of the approximate center of the facility to the nearest 15 seconds, or
the nearest quarter section (if the section, township and range is provided) that the construction site is located in;
2. The owner's name, address, telephone number, and status as Federal, State, private, public or other entity;
3. The name, address and telephone number of the general contractor(s) that have been identified at the time of the NOI submittal;
4. The name of the receiving water(s), or if the discharge is through a municipal separate storm sewer, the name of the municipal operator of the storm
sewer and the ultimate receiving water(s);
5. The number of any NPDES permit for any discharge (including non-storm water discharges) from the site that is currently authorized by an NPDES
permit;
6. A yes or no indication of whether the owner or operator has existing quantitative data which describes the concentration of pollutants in storm water
discharges (existing data should not be included as part of the NOI); and
7. A brief description of the project, estimated timetable for major activities, estimates of the number of acres of the site on which soil will be disturbed,
and a certification that a storm water pollution prevention plan has been or will be prepared for the facility in accordance with Part IV of this permit
prior to the start of construction, and such plan provides compliance with local sediment and erosion plans or permits and/or storm water
management plans or permits in accordance with paragraph VI.G.1 (Signatory Requirements) of this permit. (A copy of the plans or permits
should not be included with the NOI submission).
D. Where to Submit.
1. Facilities which discharge storm water associated with construction site activity must use an NOI form provided by the Agency. NOIs must be
signed in accordance with Part VI.G (Signatory Requirements) of this permit. NOIs are to be submitted certified mail to the Agency at the following
address:

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Illinois Environmental Protection Agency
Division of Water Pollution Control
Attention: Permit Section
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois 62794-9276
NPDES Permit No. ILR10
2. A copy of the letter of notification of coverage or other indication that storm water discharges from the site are covered under an NPDES permit shall
be posted at the site in a prominent place for public viewing (such as alongside a building permit).
E. Additional Notification. Facilities which are operating under approved local sediment and erosion plans, grading plans, or storm water management
plans, in addition to filing copies of the Notice of Intent in accordance with Part D above, shall also submit signed copies of the Notice of Intent to the
local agency approving such plans in accordance with the deadlines in Part A above. See Part IV.D.2.d (Approved State or Local Plans).
F. Notice of Termination. Where a site has been finally stabilized and all storm water discharges from construction sites that are authorized by this permit
are eliminated, the permittee of the facility must submit a completed Notice of Termination that is signed in accordance with Part VI.G (Signatory
Requirements) of this permit.
1. The Notice of Termination shall include the following information:
a. The mailing address, and location of the construction site for which the notification is submitted. Where a mailing address for the site is not
available, the location can be described in terms of the latitude and longitude of the approximate center of the facility to the nearest 15
seconds, or the nearest quarter section (if the section, township and range is provided) that the construction site is located in;
b. The owner's name, address, telephone number, and status as Federal, State, private, public or other entity;
c. The name, address and telephone number of the general contractor(s); and
d. The following certification signed in accordance with Part VI.G (Signatory Requirements) of this permit:
"I certify under penalty of law that all storm water discharges associated with construction site activity from the identified facility that are
authorized by NPDES general permit ILR10 have otherwise been eliminated. I understand that by submitting this notice of termination, that I
am no longer authorized to discharge storm water associated with construction site activity by the general permit, and that discharging
pollutants in storm water associated with construction site activity to Waters of the State is unlawful under the Environmental Protection Act
and Clean Water Act where the discharge is not authorized by a NPDES permit. I also understand that the submittal of this notice of
termination does not release an operator from liability for any violations of this permit or the Clean Water Act."
For the purposes of this certification, elimination of storm water discharges associated with industrial activity means that all disturbed soils at
the identified facility have been finally stabilized and temporary erosion and sediment control measures have been removed or will be removed
at an appropriate time, or that all storm water discharges associated with construction activities from the identified site that are authorized by a
NPDES general permit have otherwise been eliminated.
2. All Notices of Termination are to be sent, using the form provided by the Agency, to the address in paragraph II.D.1.
Part III. SPECIAL CONDITIONS, MANAGEMENT PRACTICES, AND OTHER
NON-NUMERIC LIMITATIONS
A. Prohibition on Non-Storm Water Discharges.
1. Except as provided in paragraph I.B.2 and 2 below, all discharges covered by this permit shall be composed entirely of storm water.
2. a. Except as provided in paragraph b below, discharges of materials other than storm water must be in compliance with a NPDES permit (other
than this permit) issued for the discharge.
b. The following non-storm water discharges may be authorized by this permit provided the non-storm water component of the discharges is in
compliance with paragraph IV.D.5 (Non-Storm Water Discharges): discharges from fire fighting activities; fire hydrant flushings; waters used to
wash vehicles where detergents are not used; waters used to control dust; potable water sources including uncontaminated waterline
flushings; irrigation drainages; routine external building washdown which does not use detergents; pavement washwaters where spills or leaks
of toxic or hazardous materials have not occurred (unless all spilled material has been removed) and where detergents are not used; air
conditioning condensate; springs; uncontaminated ground water; and foundation or footing drains where flows are not contaminated with
process materials such as solvents.
B. Discharges into Receiving Waters With an Approved Total Maximum Daily Load (TMDL):
Discharges to waters for which there is a TMDL allocation for sediment or a parameter that addressed sediment (such as total suspended solids,
turbidity, or siltation) are not eligible for coverage under this permit unless you develop and certify a SWPPP that is consistent with the assumptions and
requirements in the approved TMDL. To be eligible for coverage under this general permit, operators must incorporate into their SWPPP any conditions
applicable to their discharges necessary for consistency with the assumptions and requirements of the TMDL within any timeframes established in the
TMDL. If a specific numeric wasteload allocation has been established that would apply to the project’s discharges, the operator must incorporate that
allocation into its SWPPP and implement necessary steps to meet that allocation.
C. Discharges covered by this permit, alone or in combination with other sources, shall not cause or contribute to a violation of any applicable water quality
standard.

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Part IV. STORM WATER POLLUTION PREVENTION PLANS
NPDES Permit No. ILR10
A storm water pollution prevention plan shall be developed for each construction site covered by this permit. Storm water pollution prevention plans shall be
prepared in accordance with good engineering practices. The plan shall identify potential sources of pollution which may reasonably be expected to affect the
quality of storm water discharges associated with construction site activity from the facility. In addition, the plan shall describe and ensure the implementation
of practices which will be used to reduce the pollutants in storm water discharges associated with construction site activity and to assure compliance with the
terms and conditions of this permit. Facilities must implement the provisions of the storm water pollution prevention plan required under this part as a
condition of this permit.
A. Deadlines for Plan Preparation and Compliance.
The plan shall:
1. Be completed prior to the start of the construction to be covered under this permit and updated as appropriate; and
2. Provide for compliance with the terms and schedule of the plan beginning with the initiation of construction activities.
B. Signature, Plan Review and Notification.
1. The plan shall be signed in accordance with Part VI.G (Signatory Requirements), and be retained on-site at the facility which generates the storm
water discharge in accordance with Part VI.E (Duty to Provide Information) of this permit.
2. Prior to commencement of construction, the permittee shall provide written notification to the Agency of completion of the SWPPP and that said plan
is available at the site.
3. The permittee shall make plans available upon request from this Agency or a local agency approving sediment and erosion plans, grading plans, or
storm water management plans; or in the case of a storm water discharge associated with industrial activity which discharges through a municipal
separate storm sewer system with an NPDES permit, to the municipal operator of the system.
4. The Agency may notify the permittee at any time that the plan does not meet one or more of the minimum requirements of this Part. Such
notification shall identify those provisions of the permit which are not being met by the plan, and identify which provisions of the plan requires
modifications in order to meet the minimum requirements of this part. Within 7 days from receipt of notification from the Agency, the permittee shall
make the required changes to the plan and shall submit to the Agency a written certification that the requested changes have been made. Failure to
comply shall terminate authorization under this permit.
5. All storm water pollution prevention plans required under this permit are considered reports that shall be available to the public at any reasonable
time upon request. However, the permittee may claim any portion of a storm water pollution prevention plan as confidential in accordance with 40
CFR Part 2.
C. Keeping Plans Current. The permittee shall amend the plan whenever there is a change in design, construction, operation, or maintenance, which has
a significant effect on the potential for the discharge of pollutants to the Waters of the State and which has not otherwise been addressed in the plan or if
the storm water pollution prevention plan proves to be ineffective in eliminating or significantly minimizing pollutants from sources identified under
paragraph D.2 below, or in otherwise achieving the general objectives of controlling pollutants in storm water discharges associated with construction site
activity. In addition, the plan shall be amended to identify any new contractor and/or subcontractor that will implement a measure of the storm water
pollution prevention plan. Amendments to the plan may be reviewed by the Agency in the same manner as Part IV.B above.
D. Contents of Plan. The storm water pollution prevention plan shall include the following items:
1. Site Description. Each plan shall, provide a description of the following:
a. A description of the nature of the construction activity;
b. A description of the intended sequence of major activities which disturb soils for major portions of the site (e.g. grubbing, excavation, grading);
c. Estimates of the total area of the site and the total area of the site that is expected to be disturbed by excavation, grading, or other activities;
d. An estimate of the runoff coefficient of the site after construction activities are completed and existing data describing the soil or the quality of
any discharge from the site;
e. A site map indicating drainage patterns and approximate slopes anticipated before and after major grading activities, locations where vehicles
enter or exit the site and controls to prevent offsite sediment tracking, areas of soil disturbance, the location of major structural and
nonstructural controls identified in the plan, the location of areas where stabilization practices are expected to occur, surface waters (including
wetlands), and locations where storm water is discharged to a surface water; and
f. The name of the receiving water(s) and the ultimate receiving water(s), and areal extent of wetland acreage at the site.
2. Controls. Each plan shall include a description of appropriate controls that will be implemented at the construction site. The plan will clearly
describe for each major activity identified in paragraph D.1 above, appropriate controls and the timing during the construction process that the
controls will be implemented. (For example, perimeter controls for one portion of the site will be installed after the clearing and grubbing necessary
for installation of the measure, but before the clearing and grubbing for the remaining portions of the site. Perimeter controls will be actively
maintained until final stabilization of those portions of the site upward of the perimeter control. Temporary perimeter controls will be removed after
final stabilization). The description of controls shall address as appropriate the following minimum components:

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a. Erosion and Sediment Controls.
NPDES Permit No. ILR10
(i) Stabilization Practices. A description of interim and permanent stabilization practices, including site-specific scheduling of the
implementation of the practices. Site plans should ensure that existing vegetation is preserved where attainable and that disturbed
portions of the site are stabilized. Stabilization practices may include: temporary seeding, permanent seeding, mulching, geotextiles, sod
stabilization, vegetative buffer strips, protection of trees, preservation of mature vegetation, and other appropriate measures. A record of
the dates when major grading activities occur, when construction activities temporarily or permanently cease on a portion of the site, and
when stabilization measures are initiated shall be included in the plan. Except as provided in paragraphs (A) and (B) below, stabilization
measures shall be initiated as soon as practicable in portions of the site where construction activities have temporarily or permanently
ceased, but in no case more than 14 days after the construction activity in that portion of the site has temporarily or permanently ceased.
(A) Where the initiation of stabilization measures by the 14th day after construction activity temporary or permanently cease is
precluded by snow cover, stabilization measures shall be initiated as soon as practicable.
(B) Where construction activity will resume on a portion of the site within 21 days from when activities ceased, (e.g. the total time period
that construction activity is temporarily ceased is less than 21 days) then stabilization measures do not have to be initiated on that
portion of site by the 14th day after construction activity temporarily ceased.
(ii) Structural Practices. A description of structural practices to the degree attainable, to divert flows from exposed soils, store flows or
otherwise limit runoff and the discharge of pollutants from exposed areas of the site. Such practices may include silt fences, earth dikes,
drainage swales, sediment traps, check dams, subsurface drains, pipe slope drains, level spreaders, storm drain inlet protection, rock
outlet protection, reinforced soil retaining systems, gabions, and temporary or permanent sediment basins. Structural practices should be
placed on upland soils to the degree attainable. The installation of these devices may be subject to Section 404 of the CWA.
(iii) Best Management Practices for Impaired Waters. For any site which discharges directly to an impaired water identified in the
Agency’s 303(d) listing for suspended solids, turbidity, or siltation the storm water pollution prevention plan shall be designed for a storm
event equal to or greater than a 25-year 24-hour rainfall event. If required by federal regulations or the Illinois Environmental Protection
Agency’s Illinois Urban Manual, the storm water pollution prevention plan shall adhere to a more restrictive design criteria.
b. Storm Water Management. A description of measures that will be installed during the construction process to control pollutants in storm
water discharges that will occur after construction operations have been completed. Structural measures should be placed on upland soils to
the degree attainable. The installation of these devices may be subject to Section 404 of the CWA. This permit only addresses the installation
of storm water management measures, and not the ultimate operation and maintenance of such structures after the construction activities
have been completed and the site has undergone final stabilization. Permittees are responsible for only the installation and maintenance of
storm water management measures prior to final stabilization of the site, and are not responsible for maintenance after storm water discharges
associated with industrial activity have been eliminated from the site.
(i) Such practices may include: storm water detention structures (including wet ponds); storm water retention structures; flow attenuation by
use of open vegetated swales and natural depressions; infiltration of runoff onsite; and sequential systems (which combine several
practices). The pollution prevention plan shall include an explanation of the technical basis used to select the practices to control
pollution where flows exceed predevelopment levels.
(ii) Velocity dissipation devices shall be placed at discharge locations and along the length of any outfall channel as necessary to provide a
non-erosive velocity flow from the structure to a water course so that the natural physical and biological characteristics and functions are
maintained and protected (e.g. maintenance of hydrologic conditions, such as the hydroperiod and hydrodynamics present prior to the
initiation of construction activities).
(iii) Unless otherwise specified in the Illinois Environmental Protection Agency’s Illinois Urban Manual, the storm water pollution prevention
plan shall be designed for a storm event equal to or greater than a 25-year 24-hour rainfall event.
c. Other Controls.
(i) Waste Disposal. No solid materials, including building materials, shall be discharged to Waters of the State, except as authorized by a
Section 404 permit.
(ii) The plan shall ensure and demonstrate compliance with applicable State and/or local waste disposal, sanitary sewer or septic system
regulations.
d. Approved State or Local Plans.
(i) The management practices, controls and other provisions contained in the storm water pollution prevention plan must be at least as
protective as the requirements contained in Illinois Environmental Protection Agency's Illinois Urban Manual, 2002. Facilities which
discharge storm water associated with construction site activities must include in their storm water pollution prevention plan procedures
and requirements specified in applicable sediment and erosion site plans or storm water management plans approved by local officials.
Requirements specified in sediment and erosion site plans or site permits or storm water management site plans or site permits approved
by local officials that are applicable to protecting surface water resources are, upon submittal of an NOI to be authorized to discharge
under this permit, incorporated by reference and are enforceable under this permit even if they are not specifically included in a storm
water pollution prevention plan required under this permit. This provision does not apply to provisions of master plans, comprehensive
plans, non-enforceable guidelines or technical guidance documents that are not identified in a specific plan or permit that is issued for the
construction site.
(ii) Dischargers seeking alternative permit requirements are not authorized by this permit and shall submit an individual permit application in
accordance with 40 CFR 122.26 at the address indicated in Part II.D (Where to Submit) of this permit, along with a description of why
requirements in approved local plans or permits should not be applicable as a condition of an NPDES permit.

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NPDES Permit No. ILR10
3. Maintenance. A description of procedures to maintain in good and effective operating conditions vegetation, erosion and sediment control
measures and other protective measures identified in the site plan.
4. Inspections. Qualified personnel (provided by the permittee) shall inspect disturbed areas of the construction site that have not been finally
stabilized, structural control measures, and locations where vehicles enter or exit the site at least once every seven calendar days and within 24
hours of the end of a storm that is 0.5 inches or greater or equivalent snowfall. Qualified personnel means a person knowledgeable in the principles
and practice of erosion and sediment controls, such as a licensed professional engineer or other knowledgeable person who possesses the skills to
assess conditions at the construction site that could impact storm water quality and to assess the effectiveness of any sediment and erosion control
measures selected to control the quality of storm water discharges from the construction activities.
a. Disturbed areas and areas used for storage of materials that are exposed to precipitation shall be inspected for evidence of, or the potential
for, pollutants entering the drainage system. Erosion and sediment control measures identified in the plan shall be observed to ensure that
they are operating correctly. Where discharge locations or points are accessible, they shall be inspected to ascertain whether erosion control
measures are effective in preventing significant impacts to receiving waters. Locations where vehicles enter or exit the site shall be inspected
for evidence of offsite sediment tracking.
b. Based on the results of the inspection, the description of potential pollutant sources identified in the plan in accordance with paragraph IV.D.1
(Site Description) of this permit and pollution prevention measures identified in the plan in accordance with paragraph IV.D.2 (Controls) of this
permit shall be revised as appropriate as soon as practicable after such inspection. Such modifications shall provide for timely implementation
of any changes to the plan within 7 calendar days following the inspection.
c. A report summarizing the scope of the inspection, name(s) and qualifications of personnel making the inspection, the date(s) of the inspection,
major observations relating to the implementation of the storm water pollution prevention plan, and actions taken in accordance with paragraph
b above shall be made and retained as part of the storm water pollution prevention plan for at least three years from the date that the permit
coverage expires or is terminated. The report shall be signed in accordance with Part VI.G (Signatory Requirements) of this permit.
d. The permittee shall complete and submit within 5 days an "Incidence of Noncompliance" (ION) report for any violation of the storm water
pollution prevention plan observed during an inspection conducted, including those not required by the Plan. Submission shall be on forms
provided by the Agency and include specific information on the cause of noncompliance, actions which were taken to prevent any further
causes of noncompliance, and a statement detailing any environmental impact which may have resulted from the noncompliance.
e. All reports of noncompliance shall be signed by a responsible authority as defined in Part VI.G (Signatory Requirements).
f. All reports of noncompliance shall be mailed to the Agency at the following address:
Illinois Environmental Protection Agency
Division of Water Pollution Control
Compliance Assurance Section
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois 62794-9276
5. Non-Storm Water Discharges - Except for flows from fire fighting activities, sources of non-storm water listed in paragraph III.A.2 of this permit that
are combined with storm water discharges associated with industrial activity must be identified in the plan. The plan shall identify and insure the
implementation of appropriate pollution prevention measures for the non-storm water component(s) of the discharge.
E. Additional requirements for storm water discharge from industrial activities other than construction, including dedicated asphalt plants, and
dedicated concrete plants. - This permit may only authorize a storm water discharge associated with industrial activity from a construction site that is
mixed with a storm water discharge from an industrial source other than construction, where:
1. The industrial source other than construction is located on the same site as the construction activity;
2. Storm water discharges associated with industrial activity from the areas of the site where construction activities are occurring are in compliance
with the terms of this permit; and
3. Storm water discharges associated with industrial activity from the areas of the site where industrial activity other than construction are occurring
(including storm water discharges from dedicated asphalt plants (other than asphalt emulsion facilities) and dedicated concrete plants) are in
compliance with the terms, including applicable NOI or application requirements, of a different NPDES general permit or individual permit
authorizing such discharges.
F. Contractors.
1. The storm water pollution prevention plan must clearly identify for each measure identified in the plan, the contractor(s) or subcontractor(s) that will
implement the measure. All contractors and subcontractors identified in the plan must sign a copy of the certification statement in paragraph 2
below in accordance with Part VI.G (Signatory Requirements) of this permit. All certifications must be included in the storm water pollution
prevention plan except for owners that are acting as contractor.
3. Certification Statement. All contractors and subcontractors identified in a storm water pollution prevention plan in accordance with paragraph 1
above shall sign a copy of the following certification statement before conducting any professional service at the site identified in the storm water
pollution prevention plan:
"I certify under penalty of law that I understand the terms and conditions of the general National Pollutant Discharge Elimination System
(NPDES) permit (ILR10) that authorizes the storm water discharges associated with industrial activity from the construction site identified as
part of this certification."
The certification must include the name and title of the person providing the signature in accordance with Part VI.G of this permit; the name, address
and telephone number of the contracting firm; the address (or other identifying description) of the site; and the date the certification is made.

Page 7
Part V. RETENTION OF RECORDS
NPDES Permit No. ILR10
A. The permittee shall retain copies of storm water pollution prevention plans and all reports and notices required by this permit, and records of all data used
to complete the Notice of Intent to be covered by this permit, for a period of at least three years from the date that the permit coverage expires or is
terminated. This period may be extended by request of the Agency at any time.
B. The permittee shall retain a copy of the storm water pollution prevention plan required by this permit at the construction site from the date of project
initiation to the date of final stabilization.
Part VI. STANDARD PERMIT CONDITIONS
A. Duty to Comply.
The permittee must comply with all conditions of this permit. Any permit noncompliance constitutes a violation of Illinois Environmental Protection Act
and the CWA and is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or for denial of a permit renewal
application.
B. Continuation of the Expired General Permit. This permit expires five years from the date of issuance. An expired general permit continues in force
and effect until a new general permit or an individual permit is issued. Only those facilities authorized to discharge under the expiring general permit are
covered by the continued permit.
C. Need to halt or reduce activity not a defense. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to
halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.
D. Duty to Mitigate. The permittee shall take all reasonable steps to minimize or prevent any discharge in violation of this permit which has a reasonable
likelihood of adversely affecting human health or the environment.
E. Duty to Provide Information. The permittee shall furnish within a reasonable time to the Agency or local agency approving sediment and erosion
plans, grading plans, or storm water management plans; or in the case of a storm water discharge associated with industrial activity which discharges
through a municipal separate storm sewer system with an NPDES permit, to the municipal operator of the system, any information which is requested to
determine compliance with this permit. Upon request, the permittee shall also furnish to the Agency or local agency approving sediment and erosion
plans, grading plans, or storm water management plans; or in the case of a storm water discharge associated with industrial activity which discharges
through a municipal separate storm sewer system with an NPDES permit, to the municipal operator of the system, copies of records required to be kept
by this permit.
F. Other Information. When the permittee becomes aware that he or she failed to submit any relevant facts or submitted incorrect information in the Notice
of Intent or in any other report to the Agency, he or she shall promptly submit such facts or information.
G. Signatory Requirements. All Notices of Intent, storm water pollution prevention plans, reports, certifications or information either submitted to the
Agency or the operator of a large or medium municipal separate storm sewer system, or that this permit requires be maintained by the permittee, shall be
signed.
1. All Notices of Intent shall be signed as follows:
a. For a corporation: by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means: (1) a president,
secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar
policy or decision-making functions for the corporation; or (2) the manager of one or more manufacturing, production or operating facilities
employing more than 250 persons or having gross annual sales or expenditures exceeding $25,000,000 (in second-quarter 1980 dollars) if
authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures;
b. For a partnership or sole proprietorship: by a general partner or the proprietor, respectively; or
c. For a municipality, State, Federal, or other public agency: by either a principal executive officer or ranking elected official. For purposes of this
section, a principal executive officer of a Federal agency includes (1) the chief executive officer of the agency, or (2) a senior executive officer
having responsibility for the overall operations of a principal geographic unit of the agency.
2. All reports required by the permit and other information requested by the Agency shall be signed by a person described above or by a duly
authorized representative of that person. A person is a duly authorized representative only if:
a. The authorization is made in writing by a person described above and submitted to the Agency.
b. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity,
such as the position of manager, operator, superintendent, or position of equivalent responsibility or an individual or position having overall
responsibility for environmental matters for the company. (A duly authorized representative may thus be either a named individual or any
individual occupying a named position).
c. Changes to authorization. If an authorization under paragraph I.C (Authorization) is no longer accurate because a different individual or
position has responsibility for the overall operation of the construction site, a new authorization satisfying the requirements of paragraph I.C
must be submitted to the Agency prior to or together with any reports, information, or applications to be signed by an authorized representative.
d. Certification. Any person signing documents under this Part shall make the following certification:
"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with
a system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based on my inquiry of
the person or persons who manage the system, or those persons directly responsible for gathering the information, the information
submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for

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NPDES Permit No. ILR10
submitting false information, including the possibility of fine and imprisonment for knowing violations."
H. Penalties for Falsification of Reports. Section 309(c)(4) of the Clean Water Act provides that any person who knowingly makes any false material
statement, representation, or certification in any record or other document submitted or required to be maintained under this permit, including reports of
compliance or noncompliance shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than 2 years, or by
both. Section 44(j)(4) and (5) of the Environmental Protection Act provides that any person who knowingly makes any false statement, representation, or
certification in an application form, or form pertaining to a NPDES permit commits a Class A misdemeanor, and in addition to any other penalties
provided by law is subject to a fine not to exceed $10,000 for each day of violation.
I. Penalties for Falsification of Monitoring Systems. The CWA provides that any person who falsifies, tampers with, or knowingly renders inaccurate
any monitoring device or method required to be maintained under this permit shall, upon conviction, be punished by fines and imprisonment described in
Section 309 of the CWA. The Environmental Protection Act provides that any person who knowingly renders inaccurate any monitoring device or record
required in connection with any NPDES permit or with any discharge which is subject to the provisions of subsection (f) of Section 12 of the Act commits
a Class A misdemeanor, and in addition to any other penalties provided by law is subject to a fine not to exceed $10,000 for each day of violation.
J. Oil and Hazardous Substance Liability. Nothing in this permit shall be construed to preclude the institution of any legal action or relieve the permittee
from any responsibilities, liabilities, or penalties to which the permittee is or may be subject under section 311 of the CWA.
K. Property Rights. The issuance of this permit does not convey any property rights of any sort, nor any exclusive privileges, nor does it authorize any
injury to private property nor any invasion of personal rights, nor any infringement of Federal, State or local laws or regulations.
L. Severability. The provisions of this permit are severable, and if any provision of this permit, or the application of any provision of this permit to any
circumstance, is held invalid, the application of such provision to other circumstances, and the remainder of this permit shall not be affected thereby.
M. Transfers. This permit is not transferable to any person except after notice to the Agency. The Agency may require the discharger to apply for and
obtain an individual NPDES permit as stated in Part I.C (Authorization).
N. Requiring an Individual Permit or an Alternative General Permit.
1. The Agency may require any person authorized by this permit to apply for and/or obtain either an individual NPDES permit or an alternative
NPDES general permit. Any interested person may petition the Agency to take action under this paragraph. Where the Agency requires a
discharger authorized to discharge under this permit to apply for an individual NPDES permit, the Agency shall notify the discharger in writing that
a permit application is required. This notification shall include a brief statement of the reasons for this decision, an application form, a statement
setting a deadline for the discharger to file the application, and a statement that on the effective date of the individual NPDES permit or the
alternative general permit as it applies to the individual permittee, coverage under this general permit shall automatically terminate. Applications
shall be submitted to the Agency indicated in Part II.D (Where to Submit) of this permit. The Agency may grant additional time to submit the
application upon request of the applicant. If a discharger fails to submit in a timely manner an individual NPDES permit application as required by
the Agency under this paragraph, then the applicability of this permit to the individual NPDES permittee is automatically terminated at the end of
the day specified by the Agency for application submittal. The Agency may require an individual NPDES permit based on:
a. information received which indicates the receiving water may be of particular biological significance pursuant to 35 Ill. Adm. Code
302.105(d)(6);
b. whether the receiving waters are impaired waters for suspended solids, turbidity or siltation as identified by the Agency’s 303(d) listing;
c. size of construction site, proximity of site to the receiving stream, etc.
The Agency may also require monitoring of any storm water discharge from any site to determine whether an individual permit is required.
2. Any discharger authorized by this permit may request to be excluded from the coverage of this permit by applying for an individual permit. In such
cases, the permittee shall submit an individual application in accordance with the requirements of 40 CFR 122.26(c)(1)(ii), with reasons supporting
the request, to the Agency at the address indicated in Part II.D (Where to Submit) of this permit. The request may be granted by issuance of any
individual permit or an alternative general permit if the reasons cited by the permittee are adequate to support the request.
3. When an individual NPDES permit is issued to a discharger otherwise subject to this permit, or the discharger is authorized to discharge under an
alternative NPDES general permit, the applicability of this permit to the individual NPDES permittee is automatically terminated on the effective date
of the individual permit or the date of authorization of coverage under the alternative general permit, whichever the case may be. When an
individual NPDES permit is denied to a discharger otherwise subject to this permit, or the discharger is denied for coverage under an alternative
NPDES general permit, the applicability of this permit to the individual NPDES permittee remains in effect, unless otherwise specified by the
Agency.
O. State/Environmental Laws. No condition of this permit shall release the permittee from any responsibility or requirements under other environmental
statutes or regulations.
P. Proper Operation and Maintenance. The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control
(and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit and with the
requirements of storm water pollution prevention plans. Proper operation and maintenance also includes adequate laboratory controls and appropriate
quality assurance procedures. Proper operation and maintenance requires the operation of backup or auxiliary facilities or similar systems, installed by a
permittee only when necessary to achieve compliance with the conditions of the permit.
Q. Inspection and Entry. The permittee shall allow the IEPA, or an authorized representative upon presentation of credentials and other documents as
may be required by law, to:
1. Enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the
conditions of this permit;
2. Have access to and copy at reasonable times, any records that must be kept under the conditions of this permit;

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NPDES Permit No. ILR10
3. Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required
under this permit; and
4. Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the Clean Water Act, any
substances or parameters at any location.
R. Permit Actions. This permit may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit
modification, revocation and reissuance, or termination, or a notification of planned changes or anticipated noncompliance does not stay any permit
condition.
Part VII. REOPENER CLAUSE
A. If there is evidence indicating potential or realized impacts on water quality due to any storm water discharge associated with industrial activity covered by
this permit, the discharger may be required to obtain an individual permit or an alternative general permit in accordance with Part I.C (Authorization) of
this permit or the permit may be modified to include different limitations and/or requirements.
B. Permit modification or revocation will be conducted according to provisions of 35 Ill. Adm. Code, Subtitle C, Chapter I and the provisions of 40 CFR
122.62, 122.63, 122.64 and 124.5 and any other applicable public participation procedures.
C. The Agency will reopen and modify this permit under the following circumstances:
1. the U.S. EPA amends its regulations concerning public participation;
2. a court of competent jurisdiction binding in the State of Illinois or the 7 th Circuit issues an order necessitating a modification of public participation for
general permits; or
3. to incorporate federally required modifications to the substantive requirements of this permit.
Part VIII. DEFINITIONS
"Agency" means the Illinois Environmental Protection Agency.
"Best Management Practices" ("BMPs") means schedules of activities, prohibitions of practices, maintenance procedures, and other management
practices to prevent or reduce the pollution of waters of the United States. BMPs also include treatment requirements, operating procedures, and
practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.
"Commencement of Construction" - The initial disturbance of soils associated with clearing, grading, or excavating activities or other construction
activities.
"CWA" means Clean Water Act (formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of
1972) Pub.L. 92-500, as amended Pub. L. 95-217, Pub. L. 95-576, Pub. L. (96-483 and Pub. L. 97-117, 33 U.S.C. 1251 et.seq.)
"Dedicated portable asphalt plant" - A portable asphalt plant that is located on or contiguous to a construction site and that provides asphalt only to the
construction site that the plant is located on or adjacent to. The term dedicated portable asphalt plant does not include facilities that are subject to the
asphalt emulsion effluent limitation guideline at 40 CFR 443.
"Dedicated portable concrete plant" - A portable concrete plant that is located on or contiguous to a construction site and that provides concrete only to
the construction site that the plant is located on or adjacent to.
"Dedicated sand or gravel operation" - An operation that produces sand and/or gravel for a single construction project.
"Director" means the Director of the Illinois Environmental Protection Agency or an authorized representative.
"Final Stabilization" means that all soil disturbing activities at the site have been completed, and that a uniform perennial vegetative cover with a density
of 70% the cover for unpaved areas and areas not covered by permanent structures has been established or equivalent stabilization measures (such as
the use of riprap, gabions or geotextiles) have been employed.
"Large and Medium municipal separate storm sewer system" means all municipal separate storm sewers that are either:
(i) Located in an incorporated place (city) with a population of 100,000 or more as determined by the latest Decennial Census by the Bureau of Census
(these cities are listed in Appendices F and G of 40 CFR Part 122); or
(ii) Located in the counties with unincorporated urbanized populations of 100,000 or more, except municipal separate storm sewers that are located in
the incorporated places, townships or towns within such counties (these counties are listed in Appendices H and I of 40 CFR Part 122); or
(iii) Owned or operated by a municipality other than those described in paragraph (i) or (ii) and that are designated by the Director as part of the large or
medium municipal separate storm sewer system.
"NOI" means notice of intent to be covered by this permit (see Part II of this permit.)
"Point Source" means any discernible, confined, and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft from
which pollutants are or may be discharges. This term does not include return flows from irrigated agriculture or agricultural storm water runoff.
"Runoff coefficient" means the fraction of total rainfall that will appear at the conveyance as runoff.
"Storm Water" means storm water runoff, snow melt runoff, and surface runoff and drainage.

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NPDES Permit No. ILR10
"Storm Water Associated with Industrial Activity" means the discharge from any conveyance which is used for collecting and conveying storm water and
which is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. The term does not include discharges from
facilities or activities excluded from the NPDES program. For the categories of industries identified in subparagraphs (i) through (x) of this subsection,
the term includes, but is not limited to, storm water discharges from industrial plant yards; immediate access roads and rail lines used or traveled by
carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility; material handling sites; refuse sites; sites
used for the application or disposal of process waste waters (as defined at 40 CFR 401); sites used for the storage and maintenance of material handling
equipment; sites used for residual treatment, storage, or disposal; shipping and receiving areas; manufacturing buildings; storage areas (including tank
farms) for raw materials, and intermediate and finished products; and areas where industrial activity has taken place in the past and significant materials
remain and are exposed to storm water. For the categories of industries identified in subparagraph (xi), the term includes only storm water discharges
from all areas listed in the previous sentence (except access roads) where material handling equipment or activities, raw materials, intermediate
products, final products, waste materials, by-products, or industrial machinery are exposed to storm water. For the purposes of this paragraph, material
handling activities include the: storage, loading and unloading, transportation, or conveyance of any raw material, intermediate product, finished product,
by-product or waste product. The term excludes areas located on plant lands separate from the plant's industrial activities, such as office buildings and
accompanying parking lots as long as the drainage from the excluded areas is not mixed with storm water drained from the above described areas.
Industrial facilities (including industrial facilities that are Federally or municipally owned or operated that meet the description of the facilities listed in this
paragraph (i)- (xi)) include those facilities designated under 40 CFR 122.26(a)(1)(v). The following categories of facilities are considered to be engaging
in "industrial activity" for purposes of this subsection:
(i) Facilities subject to storm water effluent limitations guidelines, new source performance standards, or toxic pollutant effluent standards under 40
CFR Subchapter N (except facilities with toxic pollutant effluent standards which are exempted under category (xi) of this paragraph);
(ii) Facilities classified as Standard Industrial Classifications 24 (except 2434), 26 (except 265 and 267), 28, 29, 311, 32, 33, 3441, 373;
(iii) Facilities classified as Standard Industrial Classifications 10 through 14 (mineral industry) including active or inactive mining operations (except for
areas of coal mining operations meeting the definition of a reclamation area under 40 CFR 434.11(l)) and oil and gas exploration, production,
processing, or treatment operations, or transmission facilities that discharge storm water contaminated by contact with or that has come into contact
with, any overburden, raw material, intermediate products, finished products, byproducts or waste products located on the site of such operations;
inactive mining operations are mining sites that are not being actively mined, but which have an identifiable owner/operator;
(iv) Hazardous waste treatment, storage, or disposal facilities, including those that are operating under interim status or a permit under Subtitle C of
RCRA;
(v) Landfills, land application sites, and open dumps that have received any industrial wastes (waste that is received from any of the facilities described
under this subsection) including those that are subject to regulation under Subtitle D of RCRA;
(vi) Facilities involved in the recycling of materials, including metal scrapyards, battery reclaimers, salvage yards, and automobile junkyards, including
but limited to those classified as Standard Industrial Classification 5015 and 5093;
(vii) Steam electric power generating facilities, including coal handling sites;
(viii) Transportation facilities classified as Standard Industrial Classifications 40, 41, 42, 44, and 45 which have vehicle maintenance shops, equipment
cleaning operations, or airport deicing operations. Only those portions of the facility that are either involved in vehicle maintenance (including
vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), equipment cleaning operations, airport deicing operations, or which are
otherwise identified under subparagraphs (i)-(vii) or (ix)-(xi) of this subsection are associated with industrial activity;
(ix) Treatment works treating domestic sewage or any other sewage sludge or wastewater treatment device or system, used in the storage treatment,
recycling, and reclamation of municipal or domestic sewage, including land dedicated to the disposal of sewage sludge that are located within the
confines of the facility, with a design flow of 1.0 mgd or more, or required to have an approved pretreatment program under 40 CFR 403. Not
included are farm lands, domestic gardens or lands used for sludge management where sludge is beneficially reused and which are not physically
located in the confines of the facility, or areas that are in compliance with 40 CFR 503;
(x) Construction activity including clearing, grading and excavation activities except: operations that result in the disturbance of less than one acre of
total land area which are not part of a larger common plan of development or sale unless otherwise designated by the Agency pursuant to Part
I.B.1.
(xi) Facilities under Standard Industrial Classifications 20, 21, 22, 23, 2434, 25, 265, 267, 27, 283, 31 (except 311), 34 (except 3441), 35, 36, 37 (except
373), 38, 39, 4221-25, (and which are not otherwise included within categories (i)-(x)).
"Waters" mean all accumulations of water, surface and underground, natural, and artificial, public and private, or parts thereof, which are wholly or
partially within, flow through, or border upon the State of Illinois, except that sewers and treatment works are not included except as specially mentioned;
provided, that nothing herein contained shall authorize the use of natural or otherwise protected waters as sewers or treatment works except that
in-stream aeration under Agency permit is allowable.
ILR10 05/03 bah.doc

Subject: March 12, 2007 Final Notice: BDE Information
Re-issuance of Nationwide Memorandum 07-46
Permits, Conditions, and
Definitions
Date: November 15, 2007
This memorandum supersedes BDE Information Memorandum 02-38 dated
February 15, 2002.
_____________________________________________________________
On March 12, 2007 the Corps of Engineers re-issued Nationwide Permits
(NWPs), general conditions (GCs) and definitions, but with changes. The
changes to the NWPs include the issuance of six new NWPs (permits 45
through 50), one new GC (GC 25; Transfer of Nationwide Permit
Verifications), and 12 new definitions (Currently Serviceable, Discharge,
Establishment (Creation), Historic Property, Ordinary High Water Mark,
Practicable, Pre-construction Notification, Re-establishment, Rehabilitation,
Riparian Areas, Shellfish Seeding, and Structure). Also, many of the
definitions were modified from the 2002 re-issuance, as well as a few that
were removed.
Please note that most of the NWPs (3, 6, 7, 13, 14, 15, 18, 23, 25, 27, 33, 36,
41 and 43) sought by the department were modified and should be reviewed.
The attached summary table shows these changes for all NWPs. Also, a
summary of the NWPs, GCs and definitions has been attached for your use.
However, the description in the summary only discusses those NWPs that
have been sought by the department, as adding all of the NWPs would prove
to be unnecessary.
The Final Notice published in the Federal Register can be downloaded here
and contains all of the changes and explanations. Lastly, the reauthorized
Nationwide Permits expire on March 18, 2012.
Interim Engineer of Design and Environment _________________________
Attachment

2007 Nationwide Permits, Conditions, Further Information, and Definitions (with
corrections) commonly sought by the Department
A. Index of Nationwide Permits, Conditions, Further Information, and Definitions
Nationwide Permits:
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Surface Coal Mining Operations
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Aquatic Habitat Restoration, Establishment, and Enhancement Activities
28. Modifications of Existing Marinas
29. Residential Developments
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Commercial and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities

43. Stormwater Management Facilities
44. Mining Activities
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
47. Pipeline Safety Program Designated Time Sensitive Inspections and Repairs
48. Existing Commercial Shellfish Aquaculture Activities
49. Coal Remining Activities
50. Underground Coal Mining Activities
Nationwide Permit General Conditions:
1. Navigation
2. Aquatic Life Movements
3. Spawning Areas
4. Migratory Bird Breeding Areas
5. Shellfish Beds
6. Suitable Material
7. Water Supply Intakes
8. Adverse Effects from Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Proper Maintenance
15. Wild and Scenic Rivers
16. Tribal Rights
17. Endangered Species
18. Historic Properties
19. Designated Critical Resource Waters
20. Mitigation
21. Water Quality
22. Coastal Zone Management
23. Regional and Case-by-Case Conditions
24. Use of Multiple Nationwide Permits
25. Transfer of Nationwide Permit Verifications
26. Compliance Certification
27. Pre-Construction Notification
28. Single and Complete Project
Further Information:
Definitions:
Best management practices (BMPs)
Compensatory mitigation
Currently serviceable
Discharge
Enhancement
Ephemeral stream
Establishment (creation)
Historic property
Independent utility

Intermittent stream
Loss of waters of the United States
Non-tidal wetland
Open water
Ordinary high water mark
Perennial stream
Practicable
Pre-construction notification
Preservation
Re-establishment
Rehabilitation
Restoration
Riffle and pool complex
Riparian areas
Shellfish seeding
Single and complete project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Structure
Tidal wetland
Vegetated shallows
Waterbody
B. Nationwide Permits
3. Maintenance
(a) The repair, rehabilitation, or replacement of any previously authorized, currently
serviceable, structure or fill; or, of any currently serviceable structure or fill authorized
by 33 CFR 330.3, provided that the structure or fill is not to be put to uses differing
from those uses specified or contemplated for it in the original permit or the most
recently authorized modification. Minor deviations in the structure's configuration or
filled area, including those due to changes in materials, construction techniques, or
current construction codes or safety standards that are necessary to make the repair,
rehabilitation, or replacement are authorized. This NWP authorizes the repair,
rehabilitation, or replacement of those structures or fills destroyed or damaged by
storms, floods, fire or other discrete events provided the repair, rehabilitation, or
replacement is commenced, or is under contract to commence, within two years of the
date of their destruction or damage. In cases of catastrophic events, such as
hurricanes or tornadoes, this two-year limit may be waived by the district engineer,
provided the permittee can demonstrate funding, contract, or other similar delays.
(b) This NWP also authorizes the removal of accumulated sediments and debris in the
vicinity of and within existing structures (e.g., bridges, culverted road crossings, water
intake structures, etc.) and the placement of new or additional riprap to protect the
structure. The removal of sediment is limited to the minimum necessary to restore the
waterway in the immediate vicinity of the structure to the approximate dimensions that
existed when the structure was built, but cannot extend further than 200 feet in any
direction from the structure. This 200 foot limit does not apply to maintenance
dredging to remove accumulated sediments blocking or restricting outfall and intake
structures or to maintenance dredging to remove accumulated sediments from canals

associated with outfall and intake structures. All dredged or excavated materials must
be deposited and retained in an upland area unless otherwise specifically approved by
the district engineer under separate authorization. The placement of riprap must be the
minimum necessary to protect the structure or to ensure the safety of the structure.
Any bank stabilization measures not directly associated with the structure will require a
separate authorization from the district engineer.
(c) This NWP also authorizes temporary structures, fills, and work necessary to conduct
the maintenance activity. Appropriate measures must be taken to maintain normal
downstream flows and minimize flooding to the maximum extent practicable, when
temporary structures, work, and discharges, including cofferdams, are necessary for
construction activities, access fills, or dewatering of construction sites. Temporary fills
must consist of materials, and be placed in a manner, that will not be eroded by
expected high flows. Temporary fills must be removed in their entirety and the affected
areas returned to pre-construction elevations. The areas affected by temporary fills
must be revegetated, as appropriate.
(d) This NWP does not authorize maintenance dredging for the primary purpose of
navigation or beach restoration. This NWP does not authorize new stream
channelization or stream relocation projects.
Notification: For activities authorized by paragraph (b) of this NWP, the permittee must
submit a pre-construction notification to the district engineer prior to commencing the
activity (see general condition 27). Where maintenance dredging is proposed, the preconstruction
notification must include information regarding the original design
capacities and configurations of the outfalls, intakes, small impoundments, and canals.
(Sections 10 and 404)
Note: This NWP authorizes the repair, rehabilitation, or replacement of any previously
authorized structure or fill that does not qualify for the Clean Water Act Section 404(f)
exemption for maintenance.
6. Survey Activities
Survey activities, such as core sampling, seismic exploratory operations, plugging of seismic
shot holes and other exploratory-type bore holes, exploratory trenching, soil surveys, sampling,
and historic resources surveys. For the purposes of this NWP, the term “exploratory trenching”
means mechanical land clearing of the upper soil profile to expose bedrock or substrate, for the
purpose of mapping or sampling the exposed material. The area in which the exploratory trench
is dug must be restored to its pre-construction elevation upon completion of the work. In
wetlands, the top 6 to 12 inches of the trench should normally be backfilled with topsoil from the
trench. This NWP authorizes the construction of temporary pads, provided the discharge does
not exceed 25 cubic yards. Discharges and structures associated with the recovery of historic
resources are not authorized by this NWP. Drilling and the discharge of excavated material from
test wells for oil and gas exploration are not authorized by this NWP; the plugging of such wells
is authorized. Fill placed for roads and other similar activities is not authorized by this NWP. The
NWP does not authorize any permanent structures. The discharge of drilling mud and cuttings
may require a permit under Section 402 of the Clean Water Act. (Sections 10 and 404)
7. Outfall Structures and Associated Intake Structures
Activities related to the construction or modification of outfall structures and associated intake
structures, where the effluent from the outfall is authorized, conditionally authorized, or

specifically exempted by, or that are otherwise in compliance with regulations issued under the
National Pollutant Discharge Elimination System Program (Section 402 of the Clean Water Act).
The construction of intake structures is not authorized by this NWP, unless they are directly
associated with an authorized outfall structure.
Notification: The permittee must submit a pre-construction notification to the district engineer
prior to commencing the activity. (See general condition 27.) (Sections 10 and 404)
13. Bank Stabilization
Bank stabilization activities necessary for erosion prevention, provided the activity meets all of
the following criteria:
(a) No material is placed in excess of the minimum needed for erosion protection;
(b) The activity is no more than 500 feet in length along the bank, unless this criterion is
waived in writing by the district engineer;
(c) The activity will not exceed an average of one cubic yard per running foot placed along
the bank below the plane of the ordinary high water mark or the high tide line, unless
this criterion is waived in writing by the district engineer;
(d) The activity does not involve discharges of dredged or fill material into special aquatic
sites, unless this criterion is waived in writing by the district engineer;
(e) No material is of the type, or is placed in any location, or in any manner, to impair
surface water flow into or out of any water of the United States;
(f) No material is placed in a manner that will be eroded by normal or expected high flows
(properly anchored trees and treetops may be used in low energy areas); and,
(g) The activity is not a stream channelization activity.
Notification: The permittee must submit a pre-construction notification to the district
engineer prior to commencing the activity if the bank stabilization activity: (1) involves
discharges into special aquatic sites; (2) is in excess of 500 feet in length; or (3) will
involve the discharge of greater than an average of one cubic yard per running foot
along the bank below he plane of the ordinary high water mark or the high tide line.
(See general condition 27.) Sections 10 and 404)
14. Linear Transportation Projects
Activities required for the construction, expansion, modification, or improvement of linear
transportation projects (e.g., roads, highways, railways, trails, airport runways, and taxiways) in
waters of the United States. For linear transportation projects in non-tidal waters, the discharge
cannot cause the loss of greater than 1/2-acre of waters of the United States. For linear
transportation projects in tidal waters, the discharge cannot cause the loss of greater than 1/3acre
of waters of the United States. Any stream channel modification, including bank
stabilization, is limited to the minimum necessary to construct or protect the linear transportation
project; such modifications must be in the immediate vicinity of the project.
This NWP also authorizes temporary structures, fills, and work necessary to construct the linear
transportation project. Appropriate measures must be taken to maintain normal downstream
flows and minimize flooding to the maximum extent practicable, when temporary structures,
work, and discharges, including cofferdams, are necessary for construction activities, access
fills, or dewatering of construction sites. Temporary fills must consist of materials, and be placed
in a manner, that will not be eroded by expected high flows. Temporary fills must be removed in
their entirety and the affected areas returned to pre-construction elevations. The areas affected
by temporary fills must be revegetated, as appropriate.

This NWP cannot be used to authorize non-linear features commonly associated with
transportation projects, such as vehicle maintenance or storage buildings, parking lots, train
stations, or aircraft hangars.
Notification: The permittee must submit a pre-construction notification to the district engineer
prior to commencing the activity if: (1) the loss of waters of the United States exceeds 1/10 acre;
or (2) there is a discharge in a special aquatic site, including wetlands. (See general condition
27.) (Sections 10 and 404)
Note: Some discharges for the construction of farm roads or forest roads, or temporary roads
for moving mining equipment, may qualify for an exemption under Section 404(f) of the Clean
Water Act (see 33 CFR 323.4).
15. U.S. Coast Guard Approved Bridges
Discharges of dredged or fill material incidental to the construction of bridges across navigable
waters of the United States, including cofferdams, abutments, foundation seals, piers, and
temporary construction and access fills, provided such discharges have been authorized by the
U.S. Coast Guard as part of the bridge permit. Causeways and approach fills are not included in
this NWP and will require a separate section 404 permit. (Section 404)
18. Minor Discharges
Minor discharges of dredged or fill material into all waters of the United States, provided the
activity meets all of the following criteria:
(a) The quantity of discharged material and the volume of area excavated do not exceed
25 cubic yards below the plane of the ordinary high water mark or the high tide line;
(b) The discharge will not cause the loss of more than 1/10 acre of waters of the United
States; and
(c) The discharge is not placed for the purpose of a stream diversion.
Notification: The permittee must submit a pre-construction notification to the district
engineer prior to commencing the activity if: (1) The discharge or the volume of area
excavated exceeds 10 cubic yards below the plane of the ordinary high water mark or
the high tide line, or (2) the discharge is in a special aquatic site, including wetlands.
(See general condition 27) (Sections 10 and 404)
23. Approved Categorical Exclusions
Activities undertaken, assisted, authorized, regulated, funded, or financed, in whole or in part,
by another Federal agency or department where:
(a) That agency or department has determined, pursuant to the Council on Environmental
Quality’s implementing regulations for the National Environmental Policy Act (40 CFR
part 1500 et seq.), that the activity is categorically excluded from environmental
documentation, because it is included within a category of actions which neither
individually nor cumulatively have a significant effect on the human environment; and
(b) The Office of the Chief of Engineers (Attn: CECW-CO) has concurred with that
agency’s or department’s determination that the activity is categorically excluded and
approved the activity for authorization under NWP 23.

The Office of the Chief of Engineers may require additional conditions, including preconstruction
notification, for authorization of an agency’s categorical exclusions under
this NWP.
Notification: Certain categorical exclusions approved for authorization under this NWP
require the permittee to submit a pre-construction notification to the district engineer
prior to commencing the activity (see general condition 27). The activities that require
pre-construction notification are listed in the appropriate Regulatory Guidance Letters.
(Sections 10 and 404)
Note: The agency or department may submit an application for an activity believed to
be categorically excluded to the Office of the Chief of Engineers (Attn: CECW-CO).
Prior to approval for authorization under this NWP of any agency's activity, the Office
of the Chief of Engineers will solicit public comment. As of the date of issuance of this
NWP, agencies with approved categorical exclusions are the: Bureau of Reclamation,
Federal Highway Administration, and U.S. Coast Guard. Activities approved for
authorization under this NWP as of the date of this notice are found in Corps
Regulatory Guidance Letter 05-07, which is available at:
http://www.usace.army.mil/inet/functions/cw/cecwo/reg/rglsindx.htm . Any future
approved categorical exclusions will be announced in Regulatory Guidance Letters
and posted on this same web site.
25. Structural Discharges
Discharges of material such as concrete, sand, rock, etc., into tightly sealed forms or cells
where the material will be used as a structural member for standard pile supported structures,
such as bridges, transmission line footings, and walkways, or for general navigation, such as
mooring cells, including the excavation of bottom material from within the form prior to the
discharge of concrete, sand, rock, etc. This NWP does not authorize filled structural members
that would support buildings, building pads, homes, house pads, parking areas, storage areas
and other such structures. The structure itself may require a section 10 permit if located in
navigable waters of the United States. (Section 404)
27. Aquatic Habitat Restoration, Establishment, and Enhancement Activities
Activities in waters of the United States associated with the restoration, enhancement, and
establishment of tidal and non-tidal wetlands and riparian areas and the restoration and
enhancement of non-tidal streams and other non-tidal open waters, provided those activities
result in net increases in services. To the extent that a Corps permit is required, activities
authorized by this NWP include, but are not limited to: the removal of accumulated sediments;
the installation, removal, and maintenance of small water control structures, dikes, and berms;
the installation of current deflectors; the enhancement, restoration, or establishment of riffle and
pool stream structure; the placement of in-stream habitat structures; modifications of the stream
bed and/or banks to restore or establish stream meanders; the backfilling of artificial channels
and drainage ditches; the removal of existing drainage structures; the construction of small
nesting islands; the construction of open water areas; the construction of oyster habitat over
unvegetated bottom in tidal waters; shellfish seeding; activities needed to reestablish
vegetation, including plowing or disking for seed bed preparation and the planting of appropriate
wetland species; mechanized land clearing to remove non-native invasive, exotic, or nuisance
vegetation; and other related activities. Only native plant species should be planted at the site.

This NWP authorizes the relocation of non-tidal waters, including non-tidal wetlands and
streams, on the project site provided there are net increases in aquatic resource functions and
services.
Except for the relocation of non-tidal waters on the project site, this NWP does not authorize the
conversion of a stream or natural wetlands to another aquatic habitat type (e.g., stream to
wetland or vice versa) or uplands. This NWP does not authorize stream channelization. This
NWP does not authorize the relocation of tidal waters or the conversion of tidal waters, including
tidal wetlands, to other aquatic uses, such as the conversion of tidal wetlands into open water
impoundments.
Reversion. For enhancement, restoration, and establishment activities conducted: (1) In
accordance with the terms and conditions of a binding wetland enhancement, restoration, or
establishment agreement between the landowner and the U.S. Fish and Wildlife Service (FWS),
the Natural Resources Conservation Service (NRCS), the Farm Service Agency (FSA), the
National Marine Fisheries Service (NMFS), the National Ocean Service (NOS), or their
designated state cooperating agencies; (2) as voluntary wetland restoration, enhancement, and
establishment actions documented by the NRCS or USDA Technical Service Provider pursuant
to NRCS Field Office Technical Guide standards; or (3) on reclaimed surface coal mine lands, in
accordance with a Surface Mining Control and Reclamation Act permit issued by the OSM or
the applicable state agency, this NWP also authorizes any future discharge of dredged or fill
material associated with the reversion of the area to its documented prior condition and use
(i.e., prior to the restoration, enhancement, or establishment activities). The reversion must
occur within five years after expiration of a limited term wetland restoration or establishment
agreement or permit, and is authorized in these circumstances even if the discharge occurs
after this NWP expires. The five-year reversion limit does not apply to agreements without time
limits reached between the landowner and the FWS, NRCS, FSA, NMFS, NOS, or an
appropriate state cooperating agency. This NWP also authorizes discharges of dredged or fill
material in waters of the United States for the reversion of wetlands that were restored,
enhanced, or established on prior-converted cropland that has not been abandoned or on
uplands, in accordance with a binding agreement between the landowner and NRCS, FSA,
FWS, or their designated state cooperating agencies (even though the restoration,
enhancement, or establishment activity did not require a section 404 permit). The prior condition
will be documented in the original agreement or permit, and the determination of return to prior
conditions will be made by the Federal agency or appropriate state agency executing the
agreement or permit. Before conducting any reversion activity the permittee or the appropriate
Federal or state agency must notify the district engineer and include the documentation of the
prior condition. Once an area has reverted to its prior physical condition, it will be subject to
whatever the Corps Regulatory requirements are applicable to that type of land at the time. The
requirement that the activity result in a net increase in aquatic resource functions and services
does not apply to reversion activities meeting the above conditions. Except for the activities
described above, this NWP does not authorize any future discharge of dredged or fill material
associated with the reversion of the area to its prior condition. In such cases a separate permit
would be required for any reversion.
Reporting: For those activities that do not require pre-construction notification, the permittee
must submit to the district engineer a copy of: (1) The binding wetland enhancement,
restoration, or establishment agreement, or a project description, including project plans and
location map; (2) the NRCS or USDA Technical Service Provider documentation for the
voluntary wetland restoration, enhancement, or establishment action; or (3) the SMCRA permit
issued by OSM or the applicable state agency. These documents must be submitted to the
district engineer at least 30 days prior to commencing activities in waters of the United States
authorized by this NWP.

Notification. The permittee must submit a pre-construction notification to the district engineer
prior to commencing the activity (see general condition 27), except for the following activities:
(1) Activities conducted on non-Federal public lands and private lands, in accordance with
the terms and conditions of a binding wetland enhancement, restoration, or
establishment agreement between the landowner and the U.S. FWS, NRCS, FSA,
NMFS, NOS, or their designated state cooperating agencies;
(2) Voluntary wetland restoration, enhancement, and establishment actions documented
by the NRCS or USDA Technical Service Provider pursuant to NRCS Field Office
Technical Guide standards; or
(3) The reclamation of surface coal mine lands, in accordance with an SMCRA permit
issued by the OSM or the applicable state agency. However, the permittee must
submit a copy of the appropriate documentation. (Sections 10 and 404)
Note: This NWP can be used to authorize compensatory mitigation projects, including
mitigation banks and in-lieu fee programs. However, this NWP does not authorize the
reversion of an area used for a compensatory mitigation project to its prior condition,
since compensatory mitigation is generally intended to be permanent.
33. Temporary Construction, Access, and Dewatering
Temporary structures, work, and discharges, including cofferdams, necessary for construction
activities or access fills or dewatering of construction sites, provided that the associated primary
activity is authorized by the Corps of Engineers or the U.S. Coast Guard. This NWP also
authorizes temporary structures, work, and discharges, including cofferdams, necessary for
construction activities not otherwise subject to the Corps or U.S. Coast Guard permit
requirements. Appropriate measures must be taken to maintain near normal downstream flows
and to minimize flooding. Fill must consist of materials, and be placed in a manner, that will not
be eroded by expected high flows. The use of dredged material may be allowed if the district
engineer determines that it will not cause more than minimal adverse effects on aquatic
resources. Following completion of construction, temporary fill must be entirely removed to
upland areas, dredged material must be returned to its original location, and the affected areas
must be restored to pre-construction elevations. The affected areas must also be revegetated,
as appropriate. This permit does not authorize the use of cofferdams to dewater wetlands or
other aquatic areas to change their use. Structures left in place after construction is completed
require a section 10 permit if located in navigable waters of the United States. (See 33 CFR part
322.)
Notification: The permittee must submit a pre-construction notification to the district engineer
prior to commencing the activity (see general condition 27). The pre-construction notification
must include a restoration plan showing how all temporary fills and structures will be removed
and the area restored to pre-project conditions. (Sections 10 and 404)
36. Boat Ramps
Activities required for the construction of boat ramps, provided the activity meets all of the
following criteria:
(a) The discharge into waters of the United States does not exceed 50 cubic yards of
concrete, rock, crushed stone or gravel into forms, or in the form of pre-cast concrete
planks or slabs, unless the 50 cubic yard limit is waived in writing by the district
engineer;

(b) The boat ramp does not exceed 20 feet in width, unless this criterion is waived in
writing by the district engineer;
(c) The base material is crushed stone, gravel or other suitable material;
(d) The excavation is limited to the area necessary for site preparation and all excavated
material is removed to the upland; and,
(e) No material is placed in special aquatic sites, including wetlands. The use of
unsuitable material that is structurally unstable is not authorized. If dredging in
navigable waters of the United States is necessary to provide access to the boat ramp,
the dredging may be authorized by another NWP, a regional general permit, or an
individual permit.
Notification: The permittee must submit a pre-construction notification to the district
engineer prior to commencing the activity if: (1) The discharge into waters of the
United States exceeds 50 cubic yards, or (2) the boat ramp exceeds 20 feet in width.
(See general condition 27.) (Sections 10 and 404)
41. Reshaping Existing Drainage Ditches
Discharges of dredged or fill material into non-tidal waters of the United States, excluding nontidal
wetlands adjacent to tidal waters, to modify the cross-sectional configuration of currently
serviceable drainage ditches constructed in waters of the United States, for the purpose of
improving water quality by regrading the drainage ditch with gentler slopes, which can reduce
erosion, increase growth of vegetation, and increase uptake of nutrients and other substances
by vegetation. The reshaping of the ditch cannot increase drainage capacity beyond the original
as-built capacity nor can it expand the area drained by the ditch as originally constructed (i.e.,
the capacity of the ditch must be the same as originally constructed and it cannot drain
additional wetlands or other waters of the United States). Compensatory mitigation is not
required because the work is designed to improve water quality.
This NWP does not authorize the relocation of drainage ditches constructed in waters of the
United States; the location of the centerline of the reshaped drainage ditch must be
approximately the same as the location of the centerline of the original drainage ditch. This
NWP does not authorize stream channelization or stream relocation projects.
Notification: The permittee must submit a pre-construction notification to the district engineer
prior to commencing the activity, if more than 500 linear feet of drainage ditch will be reshaped.
(See general condition 27.) (Section 404)
43. Stormwater Management Facilities
Discharges of dredged or fill material into non-tidal waters of the United States for the
construction and maintenance of stormwater management facilities, including the excavation of
stormwater ponds/facilities, detention basins, and retention basins; the installation and
maintenance of water control structures, outfall structures and emergency spillways; and the
maintenance dredging of existing stormwater management ponds/facilities and detention and
retention basins.
The discharge must not cause the loss of greater than 1/2-acre of non-tidal waters of the United
States, including the loss of no more than 300 linear feet of stream bed, unless for intermittent
and ephemeral stream beds this 300 linear foot limit is waived in writing by the district engineer.
This NWP does not authorize discharges into non-tidal wetlands adjacent to tidal waters. This
NWP does not authorize discharges of dredged or fill material for the construction of new
stormwater management facilities in perennial streams.

Notification: For the construction of new stormwater management facilities, or the expansion of
existing stormwater management facilities, the permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity. (See general condition 27.)
Maintenance activities do not require pre-construction notification if they are limited to restoring
the original design capacities of the stormwater management facility.
C. Nationwide Permit General Conditions
Note: To qualify for NWP authorization, the prospective permittee must comply with the
following general conditions, as appropriate, in addition to any regional or case-specific
conditions imposed by the division engineer or district engineer. Prospective permittees should
contact the appropriate Corps district office to determine if regional conditions have been
imposed on an NWP. Prospective permittees should also contact the appropriate Corps district
office to determine the status of Clean Water Act Section 401 water quality certification and/or
Coastal Zone Management Act consistency for an NWP.
1. Navigation
(a) No activity may cause more than a minimal adverse effect on navigation.
(b) Any safety lights and signals prescribed by the U.S. Coast Guard, through regulations
or otherwise, must be installed and maintained at the permittee's expense on
authorized facilities in navigable waters of the United States.
(c) The permittee understands and agrees that, if future operations by the United States
require the removal, relocation, or other alteration, of the structure or work herein
authorized, or if, in the opinion of the Secretary of the Army or his authorized
representative, said structure or work shall cause unreasonable obstruction to the free
navigation of the navigable waters, the permittee will be required, upon due notice
from the Corps of Engineers, to remove, relocate, or alter the structural work or
obstructions caused thereby, without expense to the United States. No claim shall be
made against the United States on account of any such removal or alteration.
2. Aquatic Life Movements
No activity may substantially disrupt the necessary life cycle movements of those species of
aquatic life indigenous to the waterbody, including those species that normally migrate through
the area, unless the activity's primary purpose is to impound water. Culverts placed in streams
must be installed to maintain low flow conditions.
3. Spawning Areas
Activities in spawning areas during spawning seasons must be avoided to the maximum extent
practicable. Activities that result in the physical destruction (e.g., through excavation, fill, or
downstream smothering by substantial turbidity) of an important spawning area are not
authorized.
4. Migratory Bird Breeding Areas
Activities in waters of the United States that serve as breeding areas for migratory birds must be
avoided to the maximum extent practicable.

5. Shellfish Beds
No activity may occur in areas of concentrated shellfish populations, unless the activity is
directly related to a shellfish harvesting activity authorized by NWPs 4 and 48.
6. Suitable Material
No activity may use unsuitable material (e.g., trash, debris, car bodies, asphalt, etc.). Material
used for construction or discharged must be free from toxic pollutants in toxic amounts (see
Section 307 of the Clean Water Act).
7. Water Supply Intakes
No activity may occur in the proximity of a public water supply intake, except where the activity
is for the repair or improvement of public water supply intake structures or adjacent bank
stabilization.
8. Adverse Effects From Impoundments
If the activity creates an impoundment of water, adverse effects to the aquatic system due to
accelerating the passage of water, and/or restricting its flow must be minimized to the maximum
extent practicable.
9. Management of Water Flows
To the maximum extent practicable, the pre-construction course, condition, capacity, and
location of open waters must be maintained for each activity, including stream channelization
and storm water management activities, except as provided below. The activity must be
constructed to withstand expected high flows. The activity must not restrict or impede the
passage of normal or high flows, unless the primary purpose of the activity is to impound water
or manage high flows. The activity may alter the pre-construction course, condition, capacity,
and location of open waters if it benefits the aquatic environment (e.g., stream restoration or
relocation activities).
10. Fills Within 100-Year Floodplains
The activity must comply with applicable FEMA-approved state or local floodplain management
requirements.
11. Equipment
Heavy equipment working in wetlands or mudflats must be placed on mats, or other measures
must be taken to minimize soil disturbance.
12. Soil Erosion and Sediment Controls
Appropriate soil erosion and sediment controls must be used and maintained in effective
operating condition during construction, and all exposed soil and other fills, as well as any work
below the ordinary high water mark or high tide line, must be permanently stabilized at the
earliest practicable date. Permittees are encouraged to perform work within waters of the United
States during periods of low-flow or no-flow.

13. Removal of Temporary Fills
Temporary fills must be removed in their entirety and the affected areas returned to preconstruction
elevations. The affected areas must be revegetated, as appropriate.
14. Proper Maintenance
Any authorized structure or fill shall be properly maintained,
including maintenance to ensure public safety.
15. Wild and Scenic Rivers
No activity may occur in a component of the National Wild and Scenic River System, or in a
river officially designated by Congress as a “study river” for possible inclusion in the system
while the river is in an official study status, unless the appropriate Federal agency with direct
management responsibility for such river, has determined in writing that the proposed activity
will not adversely affect the Wild and Scenic River designation or study status. Information on
Wild and Scenic Rivers may be obtained from the appropriate Federal land management
agency in the area (e.g., National Park Service, U.S. Forest Service, Bureau of Land
Management, U.S. Fish and Wildlife Service).
16. Tribal Rights
No activity or its operation may impair reserved tribal rights, including, but not limited to,
reserved water rights and treaty fishing and hunting rights.
17. Endangered Species
(a) No activity is authorized under any NWP which is likely to jeopardize the continued
existence of a threatened or endangered species or a species proposed for such
designation, as identified under the Federal Endangered Species Act (ESA), or which
will destroy or adversely modify the critical habitat of such species. No activity is
authorized under any NWP which “may affect” a listed species or critical habitat,
unless Section 7 consultation addressing the effects of the proposed activity has been
completed.
(b) Federal agencies should follow their own procedures for complying with the
requirements of the ESA. Federal permittees must provide the district engineer with
the appropriate documentation to demonstrate compliance with those requirements.
(c) 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 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. For activities that might affect Federallylisted
endangered or threatened species or designated critical habitat, the preconstruction
notification must include the name(s) of the endangered or threatened
species that may be affected by the proposed work or that utilize the designated
critical habitat that may be affected by the proposed work. The district engineer will
determine whether the proposed activity “may affect” or will have “no effect” to listed
species and designated critical habitat and will notify the non-Federal applicant of the
Corps’ determination within 45 days of receipt of a complete pre-construction
notification. In cases where the non-Federal applicant has identified listed species or
critical habitat that might be affected or is in the vicinity of the project, and has so
notified the Corps, the applicant shall not begin work until the Corps has provided

notification the proposed activities will have “no effect” on listed species or critical
habitat, or until Section 7 consultation has been completed.
(d) As a result of formal or informal consultation with the FWS or NMFS the district
engineer may add species-specific regional endangered species conditions to the
NWPs.
(e) Authorization of an activity by a NWP does not authorize the “take” of a threatened or
endangered species as defined under the ESA. In the absence of separate
authorization (e.g., an ESA Section 10 Permit, a Biological Opinion with “incidental
take” provisions, etc.) from the U.S. FWS or the NMFS, both lethal and non-lethal
“takes” of protected species are in violation of the ESA. Information on the location of
threatened and endangered species and their critical habitat can be obtained directly
from the offices of the U.S. FWS and NMFS or their World Wide Web pages at
http://www.fws.gov/ and http://www.noaa.gov/fisheries.html respectively.
18. Historic Properties
(a) In cases where the district engineer determines that the activity may affect properties
listed, or eligible for listing, in the National Register of Historic Places, the activity is not
authorized, until the requirements of Section 106 of the National Historic Preservation
Act (NHPA) have been satisfied.
(b) Federal permittees should follow their own procedures for complying with the
requirements of Section 106 of the National Historic Preservation Act. Federal
permittees must provide the district engineer with the appropriate documentation to
demonstrate compliance with those requirements.
(c) Non-federal permittees must submit a pre-construction notification to the district
engineer if the authorized activity may have the potential to cause effects to any
historic properties listed, determined to be eligible for listing on, or potentially eligible
for listing on the National Register of Historic Places, including previously unidentified
properties. For such activities, the pre-construction notification must state which
historic properties may be affected by the proposed work or include a vicinity map
indicating the location of the historic properties or the potential for the presence of
historic properties. Assistance regarding information on the location of or potential for
the presence of historic resources can be sought from the State Historic Preservation
Officer or Tribal Historic Preservation Officer, as appropriate, and the National Register
of Historic Places (see 33 CFR 330.4(g)). The district engineer shall make a
reasonable and good faith effort to carry out appropriate identification efforts, which
may include background research, consultation, oral history interviews, sample field
investigation, and field survey. Based on the information submitted and these efforts,
the district engineer shall determine whether the proposed activity has the potential to
cause an effect on the historic properties. Where the non-Federal applicant has
identified historic properties which the activity may have the potential to cause effects
and so notified the Corps, the non-Federal applicant shall not begin the activity until
notified by the district engineer either that the activity has no potential to cause effects
or that consultation under Section 106 of the NHPA has been completed.
(d) The district engineer will notify the prospective permittee within 45 days of receipt of a
complete pre-construction notification whether NHPA Section 106 consultation is
required. Section 106 consultation is not required when the Corps determines that the
activity does not have the potential to cause effects on historic properties (see 36 CFR
800.3(a)). If NHPA section 106 consultation is required and will occur, the district
engineer will notify the non-Federal applicant that he or she cannot begin work until
Section 106 consultation is completed.
(e) Prospective permittees should be aware that section 110k of the NHPA (16 U.S.C.
470h-2(k)) prevents the Corps from granting a permit or other assistance to an

applicant who, with intent to avoid the requirements of Section 106 of the NHPA, has
intentionally significantly adversely affected a historic property to which the permit
would relate, or having legal power to prevent it, allowed such significant adverse
effect to occur, unless the Corps, after consultation with the Advisory Council on
Historic Preservation (ACHP), determines that circumstances justify granting such
assistance despite the adverse effect created or permitted by the applicant. If
circumstances justify granting the assistance, the Corps is required to notify the ACHP
and provide documentation specifying the circumstances, explaining the degree of
damage to the integrity of any historic properties affected, and proposed mitigation.
This documentation must include any views obtained from the applicant, SHPO/THPO,
appropriate Indian tribes if the undertaking occurs on or affects historic properties on
tribal lands or affects properties of interest to those tribes, and other parties known to
have a legitimate interest in the impacts to the permitted activity on historic properties.
19. Designated Critical Resource Waters
Critical resource waters include NOAA-designated marine sanctuaries, National Estuarine
Research Reserves, state natural heritage sites, and outstanding national resource waters or
other waters officially designated by a state as having particular environmental or ecological
significance and identified by the district engineer after notice and opportunity for public
comment. The district engineer may also designate additional critical resource waters after
notice and opportunity for comment.
(a) Discharges of dredged or fill material into waters of the United States are not
authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, 49, and 50 for
any activity within, or directly affecting, critical resource waters, including wetlands
adjacent to such waters.
(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38,
notification is required in accordance with general condition 27, for any activity
proposed in the designated critical resource waters including wetlands adjacent to
those waters. The district engineer may authorize activities under these NWPs only
after it is determined that the impacts to the critical resource waters will be no more
than minimal.
20. Mitigation
The district engineer will consider the following factors when determining appropriate and
practicable mitigation necessary to ensure that adverse effects on the aquatic environment are
minimal:
(a) The activity must be designed and constructed to avoid and minimize adverse effects,
both temporary and permanent, to waters of the United States to the maximum extent
practicable at the project site (i.e., on site).
(b) Mitigation in all its forms (avoiding, minimizing, rectifying, reducing, or compensating)
will be required to the extent necessary to ensure that the adverse effects to the
aquatic environment are minimal.
(c) Compensatory mitigation at a minimum one-for-one ratio will be required for all
wetland losses that exceed 1/10 acre and require pre-construction notification, unless
the district engineer determines in writing that some other form of mitigation would be
more environmentally appropriate and provides a project-specific waiver of this
requirement. For wetland losses of 1/10 acre or less that require pre-construction
notification, the district engineer may determine on a case-by-case basis that
compensatory mitigation is required to ensure that the activity results in minimal

adverse effects on the aquatic environment. Since the likelihood of success is greater
and the impacts to potentially valuable uplands are reduced, wetland restoration
should be the first compensatory mitigation option considered.
(d) For losses of streams or other open waters that require pre-construction notification,
the district engineer may require compensatory mitigation, such as stream restoration,
to ensure that the activity results in minimal adverse effects on the aquatic
environment.
(e) Compensatory mitigation will not be used to increase the acreage losses allowed by
the acreage limits of the NWPs. For example, if an NWP has an acreage limit of 1/2
acre, it cannot be used to authorize any project resulting in the loss of greater than 1/2
acre of waters of the United States, even if compensatory mitigation is provided that
replaces or restores some of the lost waters. However, compensatory mitigation can
and should be used, as necessary, to ensure that a project already meeting the
established acreage limits also satisfies the minimal impact requirement associated
with the NWPs.
(f) Compensatory mitigation plans for projects in or near streams or other open waters will
normally include a requirement for the establishment, maintenance, and legal
protection (e.g., conservation easements) of riparian areas next to open waters. In
some cases, riparian areas may be the only compensatory mitigation required.
Riparian areas should consist of native species. The width of the required riparian area
will address documented water quality or aquatic habitat loss concerns. Normally, the
riparian area will be 25 to 50 feet wide on each side of the stream, but the district
engineer may require slightly wider riparian areas to address documented water
quality or habitat loss concerns. Where both wetlands and open waters exist on the
project site, the district engineer will determine the appropriate compensatory
mitigation (e.g., riparian areas and/or wetlands compensation) based on what is best
for the aquatic environment on a watershed basis. In cases where riparian areas are
determined to be the most appropriate form of compensatory mitigation, the district
engineer may waive or reduce the requirement to provide wetland compensatory
mitigation for wetland losses.
(g) Permittees may propose the use of mitigation banks, in-lieu fee arrangements or
separate activity-specific compensatory mitigation. In all cases, the mitigation
provisions will specify the party responsible for accomplishing and/or complying with
the mitigation plan.
(h) Where certain functions and services of waters of the United States are permanently
adversely affected, such as the conversion of a forested or scrub-shrub wetland to a
herbaceous wetland in a permanently maintained utility line right-of-way, mitigation
may be required to reduce the adverse effects of the project to the minimal level.
21. Water Quality
Where States and authorized Tribes, or EPA where applicable, have not previously certified
compliance of an NWP with CWA Section 401, individual 401 Water Quality Certification must
be obtained or waived (see 33 CFR 330.4(c)). The district engineer or State or Tribe may
require additional water quality management measures to ensure that the authorized activity
does not result in more than minimal degradation of water quality.
22. Coastal Zone Management
In coastal states where an NWP has not previously received a state coastal zone management
consistency concurrence, an individual state coastal zone management consistency
concurrence must be obtained, or a presumption of concurrence must occur (see 33 CFR

330.4(d)). The district engineer or a State may require additional measures to ensure that the
authorized activity is consistent with state coastal zone management requirements.
23. Regional and Case-By-Case Conditions
The activity must comply with any regional conditions that may have been added by the Division
Engineer (see 33 CFR 330.4(e)) and with any case specific conditions added by the Corps or by
the state, Indian Tribe, or U.S. EPA in its section 401 Water Quality Certification, or by the state
in its Coastal Zone Management Act consistency determination.
24. Use of Multiple Nationwide Permits
The use of more than one NWP for a single and complete project is prohibited, except when the
acreage loss of waters of the United States authorized by the NWPs does not exceed the
acreage limit of the NWP with the highest specified acreage limit. For example, if a road
crossing over tidal waters is constructed under NWP 14, with associated bank stabilization
authorized by NWP 13, the maximum acreage loss of waters of the United States for the total
project cannot exceed 1/3-acre.
25. Transfer of Nationwide Permit Verifications
If the permittee sells the property associated with a nationwide permit verification, the permittee
may transfer the nationwide permit verification to the new owner by submitting a letter to the
appropriate Corps district office to validate the transfer. A copy of the nationwide permit
verification must be attached to the letter, and the letter must contain the following statement
and signature:
“When the structures or work authorized by this nationwide permit are still in existence at the
time the property is transferred, the terms and conditions of this nationwide permit, including any
special conditions, will continue to be binding on the new owner(s) of the property. To validate
the transfer of this nationwide permit and the associated liabilities associated with compliance
with its terms and conditions, have the transferee sign and date below.”
(Transferee)
(Date)
26. Compliance Certification
Each permittee who received an NWP verification from the Corps must submit a signed
certification regarding the completed work and any required mitigation. The certification form
must be forwarded by the Corps with the NWP verification letter and will include:
(a) A statement that the authorized work was done in accordance with the NWP
authorization, including any general or specific conditions;
(b) A statement that any required mitigation was completed in accordance with the permit
conditions; and
(c) The signature of the permittee certifying the completion of the work and mitigation.

27. Pre-Construction Notification
(a) Timing. Where required by the terms of the NWP, the prospective permittee must
notify the district engineer by submitting a pre-construction notification (PCN) as early
as possible. The district engineer must determine if the PCN is complete within 30
calendar days of the date of receipt and, as a general rule, will request additional
information necessary to make the PCN complete only once. However, if the
prospective permittee does not provide all of the requested information, then the
district engineer will notify the prospective permittee that the PCN is still incomplete
and the PCN review process will not commence until all of the requested information
has been received by the district engineer. The prospective permittee shall not begin
the activity until either:
(1) He or she is notified in writing by the district engineer that the activity may proceed
under the NWP with any special conditions imposed by the district or division
engineer; or
(2) Forty-five calendar days have passed from the district engineer’s receipt of the
complete PCN and the prospective permittee has not received written notice from
the district or division engineer. However, if the permittee was required to notify
the Corps pursuant to general condition 17 that listed species or critical habitat
might affected or in the vicinity of the project, or to notify the Corps pursuant to
general condition 18 that the activity may have the potential to cause effects to
historic properties, the permittee cannot begin the activity until receiving written
notification from the Corps that is “no effect” on listed species or “no potential to
cause effects” on historic properties, or that any consultation required under
Section 7 of the Endangered Species Act (see 33 CFR 330.4(f)) and/or Section
106 of the National Historic Preservation (see 33 CFR 330.4(g)) is completed.
Also, work cannot begin under NWPs 21, 49, or 50 until the permittee has
received written approval from the Corps. If the proposed activity requires a
written waiver to exceed specified limits of an NWP, the permittee cannot begin
the activity until the district engineer issues the waiver. If the district or division
engineer notifies the permittee in writing that an individual permit is required within
45 calendar days of receipt of a complete PCN, the permittee cannot begin the
activity until an individual permit has been obtained. Subsequently, the permittee’s
right to proceed under the NWP may be modified, suspended, or revoked only in
accordance with the procedure set forth in 33 CFR 330.5(d)(2).
(b) Contents of Pre-Construction Notification: The PCN must be in writing and include the
following information:
(1) Name, address and telephone numbers of the prospective permittee;
(2) Location of the proposed project;
(3) A description of the proposed project; the project’s purpose; direct and indirect
adverse environmental effects the project would cause; any other NWP(s),
regional general permit(s), or individual permit(s) used or intended to be used to
authorize any part of the proposed project or any related activity. The description
should be sufficiently detailed to allow the district engineer to determine that the
adverse effects of the project will be minimal and to determine the need for
compensatory mitigation. Sketches should be provided when necessary to show
that the activity complies with the terms of the NWP. (Sketches usually clarify the
project and when provided result in a quicker decision.);
(4) The PCN must include a delineation of special aquatic sites and other waters of
the United States on the project site. Wetland delineations must be prepared in
accordance with the current method required by the Corps. The permittee may
ask the Corps to delineate the special aquatic sites and other waters of the United

States, but there may be a delay if the Corps does the delineation, especially if
the project site is large or contains many waters of the United States.
Furthermore, the 45 day period will not start until the delineation has been
submitted to or completed by the Corps, where appropriate;
(5) If the proposed activity will result in the loss of greater than 1/10 acre of wetlands
and a PCN is required, the prospective permittee must submit a statement
describing how the mitigation requirement will be satisfied. As an alternative, the
prospective permittee may submit a conceptual or detailed mitigation plan.
(6) 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, for
non-Federal applicants the PCN must include the name(s) of those endangered or
threatened species that might be affected by the proposed work or utilize the
designated critical habitat that may be affected by the proposed work. Federal
applicants must provide documentation demonstrating compliance with the
Endangered Species Act; and
(7) For an activity that may affect a historic property listed on, determined to be
eligible for listing on, or potentially eligible for listing on, the National Register of
Historic Places, for non-Federal applicants the PCN must state which historic
property may be affected by the proposed work or include a vicinity map indicating
the location of the historic property. Federal applicants must provide
documentation demonstrating compliance with Section 106 of the National
Historic Preservation Act.
(c) Form of Pre-Construction Notification: The standard individual permit application form
(Form ENG 4345) may be used, but the completed application form must clearly
indicate that it is a PCN and must include all of the information required in paragraphs
(b)(1) through (7) of this general condition. A letter containing the required information
may also be used.
(d) Agency Coordination: (1) The district engineer will consider any comments from
Federal and state agencies concerning the proposed activity’s compliance with the
terms and conditions of the NWPs and the need for mitigation to reduce the project’s
adverse environmental effects to a minimal level.
(2) For all NWP 48 activities requiring pre-construction notification and for other NWP
activities requiring pre-construction notification to the district engineer that result in
the loss of greater than 1/2-acre of waters of the United States, the district
engineer will immediately provide (e.g., via facsimile transmission, overnight mail,
or other expeditious manner) a copy of the PCN to the appropriate Federal or
state offices (U.S. FWS, state natural resource or water quality agency, EPA,
State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Office
(THPO), and, if appropriate, the NMFS). With the exception of NWP 37, these
agencies will then have 10 calendar days from the date the material is transmitted
to telephone or fax the district engineer notice that they intend to provide
substantive, site-specific comments. If so contacted by an agency, the district
engineer will wait an additional 15 calendar days before making a decision on the
pre-construction notification. The district engineer will fully consider agency
comments received within the specified time frame, but will provide no response
to the resource agency, except as provided below. The district engineer will
indicate in the administrative record associated with each pre-construction
notification that the resource agencies’ concerns were considered. For NWP 37,
the emergency watershed protection and rehabilitation activity may proceed
immediately in cases where there is an unacceptable hazard to life or a significant
loss of property or economic hardship will occur. The district engineer will consider
any comments received to decide whether the NWP 37 authorization should be

modified, suspended, or revoked in accordance with the procedures at 33 CFR
330.5.
(3) In cases of where the prospective permittee is not a Federal agency, the district
engineer will provide a response to NMFS within 30 calendar days of receipt of
any Essential Fish Habitat conservation recommendations, as required by Section
305(b)(4)(B) of the Magnuson-Stevens Fishery Conservation and Management
Act.
(4) Applicants are encouraged to provide the Corps multiple copies of preconstruction
notifications to expedite agency coordination.
(5) For NWP 48 activities that require reporting, the district engineer will provide a
copy of each report within 10 calendar days of receipt to the appropriate regional
office of the NMFS.
(e) District Engineer’s Decision: In reviewing the PCN for the proposed activity, the district
engineer will determine whether the activity authorized by the NWP will result in more
than minimal individual or cumulative adverse environmental effects or may be
contrary to the public interest. If the proposed activity requires a PCN and will result in
a loss of greater than 1/10 acre of wetlands, the prospective permittee should submit a
mitigation proposal with the PCN. Applicants may also propose compensatory
mitigation for projects with smaller impacts. The district engineer will consider any
proposed compensatory mitigation the applicant has included in the proposal in
determining whether the net adverse environmental effects to the aquatic environment
of the proposed work are minimal. The compensatory mitigation proposal may be
either conceptual or detailed. If the district engineer determines that the activity
complies with the terms and conditions of the NWP and that the adverse effects on the
aquatic environment are minimal, after considering mitigation, the district engineer will
notify the permittee and include any conditions the district engineer deems necessary.
The district engineer must approve any compensatory mitigation proposal before the
permittee commences work. If the prospective permittee elects to submit a
compensatory mitigation plan with the PCN, the district engineer will expeditiously
review the proposed compensatory mitigation plan. The district engineer must review
the plan within 45 calendar days of receiving a complete PCN and determine whether
the proposed mitigation would ensure no more than minimal adverse effects on the
aquatic environment. If the net adverse effects of the project on the aquatic
environment (after consideration of the compensatory mitigation proposal) are
determined by the district engineer to be minimal, the district engineer will provide a
timely written response to the applicant. The response will state that the project can
proceed under the terms and conditions of the NWP.
If the district engineer determines that the adverse effects of the proposed work are
more than minimal, then the district engineer will notify the applicant either: (1) That
the project does not qualify for authorization under the NWP and instruct the applicant
on the procedures to seek authorization under an individual permit; (2) that the project
is authorized under the NWP subject to the applicant’s submission of a mitigation plan
that would reduce the adverse effects on the aquatic environment to the minimal level;
or (3) that the project is authorized under the NWP with specific modifications or
conditions. Where the district engineer determines that mitigation is required to ensure
no more than minimal adverse effects occur to the aquatic environment, the activity will
be authorized within the 45-day PCN period. The authorization will include the
necessary conceptual or specific mitigation or a requirement that the applicant submit
a mitigation plan that would reduce the adverse effects on the aquatic environment to
the minimal level. When mitigation is required, no work in waters of the United States
may occur until the district engineer has approved a specific mitigation plan.

28. Single and Complete Project
The activity must be a single and complete project. The same NWP cannot be used more than
once for the same single and complete project.
D. Further Information
1 District Engineers have authority to determine if an activity complies with the terms and
conditions of an NWP.
2. NWPs do not obviate the need to obtain other federal, state, or local permits, approvals, or
authorizations required by law.
3. NWPs do not grant any property rights or exclusive privileges.
4. NWPs do not authorize any injury to the property or rights of others.
5. NWPs do not authorize interference with any existing or proposed Federal project.
E. Definitions
Best management practices (BMPs): Policies, practices, procedures, or structures implemented
to mitigate the adverse environmental effects on surface water quality resulting from
development. BMPs are categorized as structural or non-structural.
Compensatory mitigation: The restoration, establishment (creation), enhancement, or
preservation of aquatic resources for the purpose of compensating for unavoidable adverse
impacts which remain after all appropriate and practicable avoidance and minimization has
been achieved.
Currently serviceable: Useable as is or with some maintenance, but not so degraded as to
essentially require reconstruction.
Discharge: The term “discharge” means any discharge of dredged or fill material.
Enhancement: The manipulation of the physical, chemical, or biological characteristics of an
aquatic resource to heighten, intensify, or improve a specific aquatic resource function(s).
Enhancement results in the gain of selected aquatic resource function(s), but may also lead to a
decline in other aquatic resource function(s). Enhancement does not result in a gain in aquatic
resource area.
Ephemeral stream: An ephemeral stream has flowing water only during, and for a short
duration after, precipitation events in a typical year. Ephemeral stream beds are located above
the water table year-round. Groundwater is not a source of water for the stream. Runoff from
rainfall is the primary source of water for stream flow.
Establishment (creation): The manipulation of the physical, chemical, or biological
characteristics present to develop an aquatic resource that did not previously exist at an upland
site. Establishment results in a gain in aquatic resource area.
Historic Property: Any prehistoric or historic district, site (including archaeological site), building,
structure, or other object included in, or eligible for inclusion in, the National Register of Historic
Places maintained by the Secretary of the Interior. This term includes artifacts, records, and
remains that are related to and located within such properties. The term includes properties of
traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization
and that meet the National Register criteria (36 CFR part 60).

Independent utility: A test to determine what constitutes a single and complete project in the
Corps regulatory program. A project is considered to have independent utility if it would be
constructed absent the construction of other projects in the project area. Portions of a multiphase
project that depend upon other phases of the project do not have independent utility.
Phases of a project that would be constructed even if the other phases were not built can be
considered as separate single and complete projects with independent utility.
Intermittent stream: An intermittent stream has flowing water during certain times of the year,
when groundwater provides water for stream flow. During dry periods, intermittent streams may
not have flowing water. Runoff from rainfall is a supplemental source of water for stream flow.
Loss of waters of the United States: Waters of the United States that are permanently
adversely affected by filling, flooding, excavation, or drainage because of the regulated activity.
Permanent adverse effects include permanent discharges of dredged or fill material that change
an aquatic area to dry land, increase the bottom elevation of a waterbody, or change the use of
a waterbody. The acreage of loss of waters of the United States is a threshold measurement of
the impact to jurisdictional waters for determining whether a project may qualify for an NWP; it is
not a net threshold that is calculated after considering compensatory mitigation that may be
used to offset losses of aquatic functions and services. The loss of stream bed includes the
linear feet of stream bed that is filled or excavated. Waters of the United States temporarily
filled, flooded, excavated, or drained, but restored to pre-construction contours and elevations
after construction, are not included in the measurement of loss of waters of the United States.
Impacts resulting from activities eligible for exemptions under Section 404(f) of the Clean Water
Act are not considered when calculating the loss of waters of the United States.
Non-tidal wetland: A non-tidal wetland is a wetland that is not subject to the ebb and flow of
tidal waters. The definition of a wetland can be found at 33 CFR 328.3(b). Non-tidal wetlands
contiguous to tidal waters are located landward of the high tide line (i.e., spring high tide line).
Open water: For purposes of the NWPs, an open water is any area that in a year with normal
patterns of precipitation has water flowing or standing above ground to the extent that an
ordinary high water mark can be determined. Aquatic vegetation within the area of standing or
flowing water is either non-emergent, sparse, or absent. Vegetated shallows are considered to
be open waters. Examples of “open waters” include rivers, streams, lakes, and ponds.
Ordinary High Water Mark: An ordinary high water mark is a line on the shore established by
the fluctuations of water and indicated by physical characteristics, or by other appropriate
means that consider the characteristics of the surrounding areas (see 33 CFR 328.3(e)).
Perennial stream: A perennial stream has flowing water year-round during a typical year. The
water table is located above the stream bed for most of the year. Groundwater is the primary
source of water for stream flow. Runoff from rainfall is a supplemental source of water for
stream flow.
Practicable: Available and capable of being done after taking into consideration cost, existing
technology, and logistics in light of overall project purposes.
Pre-construction notification: A request submitted by the project proponent to the Corps for
confirmation that a particular activity is authorized by nationwide permit. The request may be a
permit application, letter, or similar document that includes information about the proposed work
and its anticipated environmental effects. Pre-construction notification may be required by the
terms and conditions of a nationwide permit, or by regional conditions. A pre-construction
notification may be voluntarily submitted in cases where pre-construction notification is not

equired and the project proponent wants confirmation that the activity is authorized by
nationwide permit.
Preservation: The removal of a threat to, or preventing the decline of, aquatic resources by an
action in or near those aquatic resources. This term includes activities commonly associated
with the protection and maintenance of aquatic resources through the implementation of
appropriate legal and physical mechanisms. Preservation does not result in a gain of aquatic
resource area or functions.
Re-establishment: The manipulation of the physical, chemical, or biological characteristics of a
site with the goal of returning natural/historic functions to a former aquatic resource. Reestablishment
results in rebuilding a former aquatic resource and results in a gain in aquatic
resource area.
Rehabilitation: The manipulation of the physical, chemical, or biological characteristics of a site
with the goal of repairing natural/historic functions to a degraded aquatic resource.
Rehabilitation results in a gain in aquatic resource function, but does not result in a gain in
aquatic resource area.
Restoration: The manipulation of the physical, chemical, or biological characteristics of a site
with the goal of returning natural/historic functions to a former or degraded aquatic resource. For
the purpose of tracking net gains in aquatic resource area, restoration is divided into two
categories: re-establishment and rehabilitation.
Riffle and pool complex: Riffle and pool complexes are special aquatic sites under the 404(b)(1)
Guidelines. Riffle and pool complexes sometimes characterize steep gradient sections of
streams. Such stream sections are recognizable by their hydraulic characteristics. The rapid
movement of water over a course substrate in riffles results in a rough flow, a turbulent surface,
and high dissolved oxygen levels in the water. Pools are deeper areas associated with riffles. A
slower stream velocity, a streaming flow, a smooth surface, and a finer substrate characterize
pools.
Riparian areas: Riparian areas are lands adjacent to streams, lakes, and estuarine-marine
shorelines. Riparian areas are transitional between terrestrial and aquatic ecosystems, through
which surface and subsurface hydrology connects water bodies with their adjacent uplands.
Riparian areas provide a variety of ecological functions and services and help improve or
maintain local water quality. (See general condition 20.)
Shellfish seeding: The placement of shellfish seed and/or suitable substrate to increase
shellfish production. Shellfish seed consists of immature individual shellfish or individual
shellfish attached to shells or shell fragments (i.e., spat on shell). Suitable substrate may consist
of shellfish shells, shell fragments, or other appropriate materials placed into waters for shellfish
habitat.
Single and complete project: The term “single and complete project” is defined at 33 CFR
330.2(i) as the total project proposed or accomplished by one owner/developer or partnership or
other association of owners/developers. A single and complete project must have independent
utility (see definition). For linear projects, a “single and complete project” is all crossings of a
single water of the United States (i.e., a single waterbody) at a specific location. For linear
projects crossing a single waterbody several times at separate and distant locations, each
crossing is considered a single and complete project. However, individual channels in a braided
stream or river, or individual arms of a large, irregularly shaped wetland or lake, etc., are not
separate water bodies, and crossings of such features cannot be considered separately.

Stormwater management: Stormwater management is the mechanism for controlling
stormwater runoff for the purposes of reducing downstream erosion, water quality degradation,
and flooding and mitigating the adverse effects of changes in land use on the aquatic
environment.
Stormwater management facilities: Stormwater management facilities are those facilities,
including but not limited to, stormwater retention and detention ponds and best management
practices, which retain water for a period of time to control runoff and/or improve the quality (i.e.,
by reducing the concentration of nutrients, sediments, hazardous substances and other
pollutants) of stormwater runoff.
Stream bed: The substrate of the stream channel between the ordinary high water marks. The
substrate may be bedrock or inorganic particles that range in size from clay to boulders.
Wetlands contiguous to the stream bed, but outside of the ordinary high water marks, are not
considered part of the stream bed.
Stream channelization: The manipulation of a stream’s course, condition, capacity, or location
that causes more than minimal interruption of normal stream processes. A channelized stream
remains a water of the United States.
Structure: An object that is arranged in a definite pattern of organization. Examples of
structures include, without limitation, any pier, boat dock, boat ramp, wharf, dolphin, weir, boom,
breakwater, bulkhead, revetment, riprap, jetty, artificial island, artificial reef, permanent mooring
structure, power transmission line, permanently moored floating vessel, piling, aid to navigation,
or any other manmade obstacle or obstruction.
Tidal wetland: A tidal wetland is a wetland (i.e., water of the United States) that is inundated by
tidal waters. The definitions of a wetland and tidal waters can be found at 33 CFR 328.3(b) and
33 CFR 328.3(f), respectively. Tidal waters rise and fall in a predictable and measurable rhythm
or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and
fall of the water surface can no longer be practically measured in a predictable rhythm due to
masking by other waters, wind, or other effects. Tidal wetlands are located channelward of the
high tide line, which is defined at 33 CFR 328.3(d).
Vegetated shallows: Vegetated shallows are special aquatic sites under the 404(b)(1)
Guidelines. They are areas that are permanently inundated and under normal circumstances
have rooted aquatic vegetation, such as seagrasses in marine and estuarine systems and a
variety of vascular rooted plants in freshwater systems.
Waterbody: For purposes of the NWPs, a waterbody is a jurisdictional water of the United
States that, during a year with normal patterns of precipitation, has water flowing or standing
above ground to the extent that an ordinary high water mark (OHWM) or other indicators of
jurisdiction can be determined, as well as any wetland area (see 33 CFR 328.3(b)). If a
jurisdictional wetland is adjacent--meaning bordering, contiguous, or neighboring--to a
jurisdictional waterbody displaying an OHWM or other indicators of jurisdiction, that waterbody
and its adjacent wetlands are considered together as a single aquatic unit (see 33 CFR
328.4(c)(2)). Examples of “water bodies” include streams, rivers, lakes, ponds, and wetlands.

Subject: Section 401 Water Quality BDE Information
Certification for March 12, 2007 Memorandum 07-47
Re-issued Nationwide 404 Permits
Date: November 15, 2007
______________________________________________________________
This memorandum supersedes BDE Information Memorandum 02-39 dated
March 25, 2002, and supplements information in BDE Information
Memorandum 07-46 dated November 15, 2007.
______________________________________________________________
On March 12, 2007 the Corps of Engineers issued the final notice concerning
the disposition of the expiring Nationwide Permits (NWPs) under Section 10 of
the 1899 Rivers and Harbors Act and Section 404 of the Clean Water Act.
The NWPs discussed in this memorandum are those that have been sought
by the department.
The Illinois Environmental Protection Agency (EPA) reviewed the final notice
and made the following determination:
Section 401 water quality certification was issued for these NWPs without
conditions:
NWP 7 (Outfall Structures and Associated Intake Structures)
NWP 36 (Boat Ramps)
Section 401 water quality certification was issued for these NWPs but is
subject to regional conditions (please see the attachment for a description of
associated regional conditions):
NWP 3 (Maintenance)
NWP 6 (Survey Activities)
NWP 13 (Bank Stabilization)
NWP 14 (Linear Transportation Projects)
NWP 27 (Aquatic Habitat Restoration, Establishment and Enhancement
Activities)
NWP 33 (Temporary Construction, Access and Dewatering)
NWP 41 (Reshaping Existing Drainage Ditches)
For NWP 14 (Linear Transportation Projects), the most commonly sought
NWP of the department, two new Regional Conditions have been added that
need to be paid particularly close attention to, Number 8 and 9.

.
BDE Information Memorandum
November 15, 2007
Page 2
Regional Condition Number 8 states that the applicant for NWP 14 that uses
temporary work pads, cofferdams, access roads and other temporary fills in
order to perform work in creeks, streams or rivers shall maintain flow in these
waters by utilizing dam and pumping, fluming, culverts or other such
techniques.
Regional Condition Number 9 states that case specific water quality
certification from the Illinois EPA will be required for projects that involve
dredge and fill activities in bogs, fens or forested wetlands defined as follows:
A. A bog is a low nutrient peatland, usually in a glacial depression, that is
acidic in the surface stratum and often dominated at least in part by
the genus, Sphagnum. P.
B. A fen is a peatland, herbaceous (including calcareous floating mats)
or wooded, with calcareous groundwater flow.
C. A forested wetland is a wetland dominated by native woody
vegetation with at least one of the following species or genera
present: Hickories (Carya spp.), Common Buttonbush (Cephalanthus
occidentalis), Alternate-Leaf Dogwood (Cornus alternifolia), Black Ash
(Fraxinus nigra), Butternut (Juglans cinerea), Sour Gum (Nyssa
sylvatica), Oaks (Quercus spp.), White Cedar (Thuja occidentalis),
River Birch (Betula nigra), Yellow Birch (Betula alleghaniensis), Paper
Birch (Betula papyrifera), American Beech (Fagus grandifolia).
This Regional Condition could affect project schedule for projects where
wetland delineations have been performed due to the time required to obtain
the Section 401 water quality certification.
Section 401 water quality certification was not issued for these NWPs and
must be sought every time.
NWP 15 (U.S. Coast Guard Approved Bridges)
NWP 18 (Minor Discharges)
NWP 23 (Approved Categorical Exclusions)
NWP 25 (Structural Discharges)
NWP 43 (Stormwater Management Facilities)
Interim Engineer of Design and Environment___________________________
Attachment

REGIONAL CONDITIONS FOR NATIONWIDE PERMIT 3 (MAINTENANCE)
1. The applicant shall not cause:
A. violation of applicable provisions of the Illinois Environmental
Protection Act;
B. water pollution defined and prohibited by the Illinois Environmental
Protection Act;
C. violation of applicable water quality standards of the Illinois Pollution
Control Board, Title 35, Subtitle C: Water Pollution Rules and
Regulations; or
D. interference with water use practices near public recreation areas or
water supply intakes.
2. Any spoil material excavated, dredged or otherwise produced must not be
returned to the waterway but must be deposited in a self-contained area in
compliance with all state statutes, as determined by the Illinois EPA.
3. Any backfilling must be done with clean material and placed in a manner to
prevent violation of applicable water quality standards.
4. The applicant for Nationwide Permit (NWP) 3 shall provide adequate
planning and supervision during the project construction period for
implementing construction methods, processes and cleanup procedures
necessary to prevent water pollution and control erosion.
5. All areas affected by construction shall be mulched and seeded as soon
after construction as possible. The applicant for NWP 3 shall undertake
necessary measures and procedures to reduce erosion during
construction. Interim measures to prevent erosion during construction
shall be taken and may include the installation of staked straw bales,
sedimentation basins and temporary mulching. All construction within the
waterway shall be conducted during zero or low flow conditions. The
applicant for NWP 3 shall be responsible for obtaining an NPDES Storm
Water Permit prior to initiating construction if the construction activity
associated with the project will result in the disturbance of 1 (one) or more
acres, total land area. An NPDES Storm Water Permit may be obtained
by submitting a properly completed Notice of Intent (NOI) form by certified
mail to the Agency’s Division of Water Pollution Control, Permit Section.
6. The applicant for NWP 3 shall implement erosion control measures
consistent with the “Illinois Urban Manual” (IEPA/USDA, NRCS; 2002).
7. Temporary work pads, cofferdams, access roads and other temporary fills
shall be constructed of clean coarse aggregate or non-erodible nonearthen
fill material that will not cause siltation. Sandbags, pre-fabricated
rigid materials, sheet piling, inflatable bladders and fabric lined basins may
be used for temporary facilities.
8. The applicant for NWP 3 that uses temporary work pads, cofferdams,
access roads and other temporary fills in order to perform work in creeks,
streams, or rivers shall maintain flow in these waters by utilizing dam and
pumping, fluming, culverts or other such techniques.

REGIONAL CONDITIONS FOR NATIONWIDE PERMIT 6
(SURVEY ACTIVITIES)
1. The applicant shall not cause:
A. violation of applicable provisions of the Illinois Environmental
Protection Act;
B. water pollution defined and prohibited by the Illinois Environmental
Protection Act;
C. violation of applicable water quality standards of the Illinois Pollution
Control Board, Title 35, Subtitle C: Water Pollution Rules and
Regulations; or
D. interference with water use practices near public recreation areas or
water supply intakes.
2. The applicant for Nationwide Permit (NWP) 6 shall provide adequate
planning and supervision during the project construction period for
implementing construction methods, processes and cleanup procedures
necessary to prevent water pollution and control erosion.
3. Material resulting from trench excavation within surface waters of the State
may be temporarily sidecast adjacent to the trench excavation provided
that:
A. Sidecast material is not placed within a creek, stream, river or other
flowing water body such that material dispersion could occur;
B. Sidecast material is not placed within ponds or other water bodies
other than wetlands; and
C. Sidecast material in not placed within a wetland for a period longer
than twenty (20) calendar days. Such sidecast material shall either be
removed from the site, or used as backfill (refer to Condition 4 and 5).
4. Backfill sued within trenches passing through surface water of the State,
except wetland areas, shall be clean coarse aggregate, gravel or other
material which will not cause siltation. Excavated material may be used
only if:
A. Particle size analysis is conducted and demonstrates the material to
be at least 80% sand or larger size material, using a #230 U.S. sieve;
or
B. Excavation and backfilling are done under dry conditions.
5. Backfill used within trenches passing through wetland areas shall consist
of clean material which will not cause siltation. Excavated material shall
be used to the extent practicable, with the upper six (6) to twelve (12)
inches backfilled with the topsoil obtained during trench excavation.
6. Temporary work pads shall be constructed of clean coarse aggregate or
non-erodible non-earthen fill material that will not cause siltation.
Sandbags, pre-fabricated rigid materials, sheet piling, inflatable bladders
and fabric lined basins may be used for temporary facilities.
7. The applicant for NWP 6 that uses temporary work pads in order to
perform work in creeks, streams, or rivers shall maintain flow in these
waters by utilizing dam and pumping, fluming, culverts or other such
techniques.

REGIONAL CONDITIONS FOR NATIONWIDE PERMIT 13
(BANK STABILIZATION)
1. The bank stabilization activities shall not exceed 500 linear feet.
2. Asphalt, bituminous material and concrete with protruding material such as
reinforcing bars or mesh shall not be:
A. used for backfill;
B. placed on shore lines/stream banks; or
C. placed in waters of the state
3. Any spoil material excavated, dredged or otherwise produced must not be
returned to the waterway but must be deposited in a self-contained area in
compliance with all state statutes, as determined by the Illinois EPA.
4. Any backfilling must be done with clean material and placed in a manner to
prevent violation of applicable water quality standards.
5. The applicant shall consider installing bioengineering practices in lieu of
structural practices of bank stabilization to minimize impacts to the lake,
pond, river or stream and enhance aquatic habitat. Bioengineering
techniques may include, but are not limited to:
A. adequately sized riprap or A-Jack structures keyed into the toe of the
slope with native plantings on the banks above;
B. vegetated geogrids;
C. coconut fiber (coir) logs;
D. live, woody vegetative cuttings, fascines or stumps;
E. brush layering; and
F. soil lifts.

REGIONAL CONDITIONS FOR NATIONWIDE PERMIT 14
(LINEAR TRANSPORTATION PROJECTS)
1. The affected area of the stream channel shall not exceed 100 linear feet,
as measured along the stream corridor.
2. Any spoil material excavated, dredged or otherwise produced must not be
returned to the waterway but must be deposited in a self-contained area in
compliance with all state statutes, as determined by the Illinois EPA.
3. Any backfilling must be done with clean material and placed in a manner to
prevent violation of applicable water quality standards.
4. The applicant shall not cause:
A. violation of applicable provisions of the Illinois Environmental
Protection Act;
B. water pollution defined and prohibited by the Illinois Environmental
Protection Act;
C. violation of applicable water quality standards of the Illinois Pollution
Control Board, Title 35, Subtitle C: Water Pollution Rules and
Regulations; or
D. interference with water use practices near public recreation areas or
water supply intakes.
5. All areas affected by construction shall be mulched and seeded as soon
after construction as possible. The applicant shall undertake necessary
measures and procedures to reduce erosion during construction. Interim
measures to prevent erosion during construction shall be taken and may
include the installation of staked straw bales, sedimentation basins and
temporary mulching. All construction within the waterway shall be
conducted during zero or low flow conditions. The applicant shall be
responsible for obtaining an NPDES Storm Water Permit prior to initiating
construction if the construction activity associated with the project will
result in the disturbance of 1 (one) or more acres, total land area. An
NPDES Storm Water Permit may be obtained by submitting a properly
completed Notice of Intent (NOI) form by certified mail to the Agency’s
Division of Water Pollution Control, Permit Section.
6. The applicant shall implement erosion control measures consistent with
the “Illinois Urban Manual” (IEPA/USDA, NRCS; 2002).
7. Temporary work pads, cofferdams, access roads and other temporary fills
shall be constructed of clean coarse aggregate or non-erodible nonearthen
fill material that will not cause siltation. Sandbags, pre-fabricated
rigid materials, sheet piling, inflatable bladders and fabric lined basins may
be used for temporary facilities.
8. The applicant for Nationwide Permit 14 that uses temporary work pads,
cofferdams, access roads and other temporary fills in order to perform
work in creeks, streams, or rivers shall maintain flow in these waters by
utilizing dam and pumping, fluming, culverts or other such techniques.

9. Case specific water quality certification from the Illinois EPA will be
required for projects that involve dredge and fill activities in bogs, fens or
forested wetlands defined as follows:
A. A bog is a low nutrient peatland, usually in a glacial depression, that is
acidic in the surface stratum and often dominated at least in part by
the genus, Sphagnum. P.
B. A fen is a peatland, herbaceous (including calcareous floating mats)
or wooded, with calcareous groundwater flow.
C. A forested wetland is a wetland dominated by native woody
vegetation with at least one of the following species or genera
present: Hickories (Carya spp.), Common Buttonbush (Cephalanthus
occidentalis), Alternate-Leaf Dogwood (Cornus alternifolia), Black Ash
(Fraxinus nigra), Butternut (Juglans cinerea), Sour Gum (Nyssa
sylvatica), Oaks (Quercus spp.), White Cedar (Thuja occidentalis),
River Birch (Betula nigra), Yellow Birch (Betula alleghaniensis), Paper
Birch (Betula papyrifera), American Beech (Fagus grandifolia).

REGIONAL CONDITIONS FOR NATIONWIDE 27 (Aquatic Habitat
Restoration, Establishment, and Enhancement Activities)
All activities conducted under Nationwide Permit 27 shall be in accordance
with the provision of 35 Il. Adm. Code 405.108. Work in reclaimed surface
coal mine areas are required to obtain prior authorization from the Illinois EPA
for any activities that result in the use of acid-producing mine refuse.

REGIONAL CONDITIONS FOR NATIONWIDE PERMIT 33 (TEMPORARY
CONSTRUCTION, ACCESS, AND DEWATERING)
1. Any spoil material excavated, dredged or otherwise produced must not be
returned to the waterway but must be deposited in a self-contained area in
compliance with all state statutes, as determined by the Illinois EPA.
2. Any backfilling must be done with clean material and placed in a manner to
prevent violation of applicable water quality standards.
3. The applicant shall not cause:
A. violation of applicable provisions of the Illinois Environmental
Protection Act;
B. water pollution defined and prohibited by the Illinois Environmental
Protection Act;
C. violation of applicable water quality standards of the Illinois Pollution
Control Board, Title 35, Subtitle C: Water Pollution Rules and
Regulations; or
D. interference with water use practices near public recreation areas or
water supply intakes.
4. All areas affected by construction shall be mulched and seeded as soon
after construction as possible. The applicant shall undertake necessary
measures and procedures to reduce erosion during construction. Interim
measures to prevent erosion during construction shall be taken and may
include the installation of staked straw bales, sedimentation basins and
temporary mulching. All construction within the waterway shall be
conducted during zero or low flow conditions. The applicant shall be
responsible for obtaining an NPDES Storm Water Permit prior to initiating
construction if the construction activity associated with the project will
result in the disturbance of 1 (one) or more acres, total land area. An
NPDES Storm Water Permit may be obtained by submitting a properly
completed Notice of Intent (NOI) form by certified mail to the Agency’s
Division of Water Pollution Control, Permit Section.
5. The applicant shall implement erosion control measures consistent with
the “Illinois Urban Manual” (IEPA/USDA, NRCS; 2002).
6. Temporary work pads, cofferdams, access roads and other temporary fills
shall be constructed of clean coarse aggregate or non-erodible nonearthen
fill material that will not cause siltation. Sandbags, pre-fabricated
rigid materials, sheet piling, inflatable bladders and fabric lined basins may
be used for temporary facilities.
7. The applicant for Nationwide Permit 33 that uses temporary work pads,
cofferdams, access roads and other temporary fills in order to perform
work in creeks, streams, or rivers shall maintain flow in these waters by
utilizing dam and pumping, fluming, culverts or other such techniques.

REGIONAL CONDITIONS FOR NATIONWIDE PERMIT 41 (RESHAPING
EXISTING DRAINAGE DITCHES)
1. The applicant shall not cause:
A. violation of applicable provisions of the Illinois Environmental
Protection Act;
B. water pollution defined and prohibited by the Illinois Environmental
Protection Act;
C. violation of applicable water quality standards of the Illinois Pollution
Control Board, Title 35, Subtitle C: Water Pollution Rules and
Regulations; or
D. interference with water use practices near public recreation areas or
water supply intakes.
2. The applicant for Nationwide Permit shall provide adequate planning and
supervision during the project construction period for implementing
construction methods, processes, and cleanup procedures necessary to
prevent water pollution and control erosion.
3. Any spoil material excavated, dredged or otherwise produced must not be
returned to the waterway but must be deposited in a self-contained area in
compliance with all state statutes, regulations and permit requirements
with no discharge to waters of the State unless a permit has been issued
by the Illinois EPA. Any backfilling must be done with clean material and
placed in a manner to prevent violation of applicable water quality
standards.
4. All areas affected by construction shall be mulched and seeded as soon
after construction as possible. The applicant shall undertake necessary
measures and procedures to reduce erosion during construction. Interim
measures to prevent erosion during construction shall be taken and may
include the installation of staked straw bales, sedimentation basins and
temporary mulching. All construction within the waterway shall be
conducted during zero or low flow conditions. The applicant shall be
responsible for obtaining an NPDES Storm Water Permit prior to initiating
construction if the construction activity associated with the project will
result in the disturbance of 1 (one) or more acres, total land area. An
NPDES Storm Water Permit may be obtained by submitting a properly
completed Notice of Intent (NOI) form by certified mail to the Agency’s
Division of Water Pollution Control, Permit Section.
5. The applicant shall implement erosion control measures consistent with
the “Illinois Urban Manual” (IEPA/USDA, NRCS; 2002).
6. The applicant is advised that that following permit(s) must be obtained
from the Agency: permits to construct sanitary sewers, water mains, and
related facilities prior to construction.
7. The proposed work shall be constructed with adequate erosion control
measures (i.e. silt fences, straw bales, etc.) to prevent transport of
sediment and material to the adjoining wetlands and/or streams.

Subject: Regional Conditions for BDE Information
March 12, 2007 Re-issued Memorandum 07-48
Nationwide 404 Permits
Date: November 15, 2007
This memorandum supersedes BDE Information Memorandum 02-40 dated
May 20, 2002, and supplements information in BDE Information Memorandum
07-46 dated November 15, 2007.
Attached for your information and use is a copy of a June 26, 2007 public
notice issued by the Rock Island District of the U.S. Army Corps of Engineers.
The notice announces the approval of Regional Conditions for the March 12,
2007 re-issued Nationwide Permits (NWPs). These Regional Conditions are
in addition to the General Conditions applicable to the NWPs (see BDE
Information Memorandum 07-46).
In addition, the Chicago District of the Corps of Engineers has proposed
alternate Regional Conditions for work in McHenry, Kane, Lake, DuPage, Will
and Cook Counties.
The notice also affirms that the Illinois Environmental Protection Agency
(IEPA) has issued Section 401 Water Quality Certification for 16 of the reissued
Nationwide Permits (see BDE Information Memorandum 07-47). The
Rock Island District has advised that the effective date for the IEPA Section
401 Water Quality Certification coincides with the March 19, 2007 effective
date for the re-issued NWPs.
Interim Engineer of Design and Environment___________________________
Attachment

Nationwide Permit Regional Conditions for Illinois
To ensure projects covered by a nationwide permit will result in minimal adverse
impacts to the aquatic environment, we propose the following Regional Conditions
for projects proposed within the State of Illinois:
Note: The Chicago District has implemented regional permits for work in McHenry,
Kane, Lake, DuPage, Will, and Cook Counties, Illinois. Information regarding
Chicago District requirements can be accessed through their website at
http://www.lrc.usace.army.mil/co-r/. If you have questions, please contact Mr. Paul
Leffler, telephone: 312/846-5529, email: paul.m.leffler@usace.army.mil.
1. Bank stabilization projects involving armoring of the streambank with riprap or the
construction of retaining walls within High Value Subwatersheds exceeding 250 feet
will require a Pre-Construction notice (PCN) to the Corps of Engineers in accordance
with General Condition No. 27.
2. A proposed activity to be authorized under Nationwide Permits 12 or 14 within the
Cache River Wetlands Areas (Alexander and Pulaski Counties), Kaskaskia River
(Clinton, St. Clair, and Washington Counties), or Wabash River (Gallatin and White
Counties) will require a PCN to the Corps of Engineers in accordance with General
Condition No. 27.
3. Stormwater management facilities shall not be located within an intermittent
stream, except for NWPs 21, 49, or 50.
4. For newly constructed channels through areas that are unvegetated, native grass
filter strips, or a riparian buffer with native trees or shrubs a minimum of 25 feet wide
from the top of bank must be planted along both sides of the new channel.
5. For NWP 46, the discharge of dredged or fill material into ditches and canals that
would sever the jurisdiction of an upstream water of the United States from a
downstream water of the United States is not allowed.