NATIONWIDE PERMIT REISSUANCE REQUEST FOR COMMENTS
On February 16, 2011, the U.S. Army Corps of Engineers published in the Federal Register its proposal to reissue 48 of its existing nationwide permits (NWPs) and issue two new NWPs. Nationwide permits are general permits issued on a nationwide basis to streamline the authorization of activities that result in minimal individual and cumulative adverse effects on the aquatic environment. Many of the proposed NWPs require notification to the district engineer before commencing the work, to ensure that the activities authorized by those NWPs have minimal individual and cumulative adverse impacts on the aquatic environment.
National Issues Concerning the Proposed NWPs: The Federal Register notice is the public’s opportunity to comment on the proposed NWPs, general conditions, and definitions. Comments on national issues relating to these NWPs should be submitted to docket number COE-2010-0035 at www.regulations.gov, or by email to NWP2012@usace.army.mil or by mail to Headquarters, U.S. Army Corps of Engineers, Directorate of Civil Works, ATTN: CECW-CO-R, 441 G Street, N.W., Washington, D.C. 20314-1000. Instructions for submitting comments are provided in the February 16, 2011 Federal Register notice. Comments on the proposed NWPs are due by April 18, 2011.
Regional Issues Concerning the Proposed NWPs, Including Regional Conditioning: Division engineers are authorized to add regional conditions specific to the needs and/or requirements of a particular region or state. Regional conditions are important mechanisms to ensure that impacts to the aquatic environment authorized by the NWPs are minimal, both individually and cumulatively. Division engineers may also suspend or revoke specific NWPs in certain geographic areas (e.g., states or watersheds) or high-value aquatic systems where impacts authorized by those NWPs may be more than minimal. An enclosure for this public notice (Enclosure 1.) lists the proposed regional conditions currently under consideration by the Pacific Ocean Division for the State of Hawaii, including the Northwestern Hawaiian Islands, the U.S. Territories of Guam and American Samoa, and the Commonwealth of the Northern Mariana Islands. The Honolulu District is seeking comments on the proposed regional conditions and seeking comments on the need for additional regional conditions to help ensure that impacts authorized by the proposed NWPs are minimal. Unless otherwise noted, all proposed regional conditions listed on this enclosure are applicable for activities in the Honolulu District, as specified above. Comments on regional issues relating to the proposed NWPs and regional conditions are to be sent to the Honolulu District, U.S. Army Corps of Engineers, Attn: CEPOH-ECR/Deroche, Building 230, Ft. Shafter, Hawaii 96858-5440. Comments may also be submitted electronically to: robert.d.deroche2@usace.army.mil with “NWP Regional Conditions” in the subject line. Comments relating to regional conditions are due by April 5, 2011. Similar public notices proposing regional conditions in other regions or States are being published concurrently by other division or district offices.
In conjunction with the Federal Register notice, Corps districts will be announcing proposed regional conditions for these NWPs for public comment. After the final NWPs are issued, the final regional conditions will be issued after they are approved by the Division Commander. After the final NWP are issued, States and Tribes will make their Clean Water Act Section 401 (401) water quality certification and Coastal Zone Management Act (CZMA) consistency determination decisions. The 401/CZMA decisions must be made within 90 days of the Federal Register notice announcing the issuance of the NWPs. The final NWPs will go into effect on or before March 19, 2012.
Draft decision documents, which include environmental documentation required by the National Environmental Policy Act, have been prepared by Corps Headquarters. The decision documents will address compliance of the NWPs with the requirements for issuance under general permit authority. These documents, as well as the proposed NWPs, are available for viewing at the Honolulu District, U.S. Army Corps of Engineers, Attn: CEPOH-EC-R, Building 230, Ft. Shafter, Hawaii or on the Internet at www.regulations.gov, docket number COE-2010-005. Final decision documents will be prepared for those NWPs that are issued. In addition, the national NWP decision documents will be supplemented by division engineers to address their decisions concerning regional conditions for the NWPs.
Enclosed is an index of the proposed NWPs and general conditions. Anyone wishing to provide comments may obtain a full text copy of the NWPs through the Corps Home Page at http://www.usace.army.mil/CECW/Pages/nnpi.aspx, www.regulations.gov, docket number COE-2010-0035, or the Federal Register at http://www.gpoaccess.gov/fr/index.html.
Index of Proposed Nationwide Permits, Conditions, 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. Response Operations for Oil and Hazardous Substances
21. Surface Coal Mining Activities
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. [Reserved]
48. Existing Commercial Shellfish Aquaculture Activities
49. Coal Remining Activities
50. Underground Coal Mining Activities
A. Land-Based Renewable Energy Generation Facilities
B. Water-Based Renewable Energy Generation Pilot Projects
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. Discovery of Previously Unknown Remains and Artifacts
15. Proper Maintenance
16. Single and Complete Project
17. Wild and Scenic Rivers
18. Tribal Rights
19. Endangered Species
20. Historic Properties
21. Designated Critical Resource Waters
22. Mitigation
23. Safety of Impoundment Structures
24. Water Quality
25. Coastal Zone Management
26. Regional and Case-by-Case Conditions
27. Use of Multiple Nationwide Permits
28. Transfer of Nationwide Permit Verifications
29. Compliance Certification
30. Pre-Construction Notification
Definitions
Best management practices (BMPs)
Compensatory mitigation
Currently serviceable
Discharge
Enhancement
Ephemeral stream
Establishment (creation)
High Tide Line
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 linear project
Single and complete non-linear project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Structure
Tidal wetland
Vegetated shallows
Waterbody
ENCLOSURE 1
Proposed 2012 Nationwide Permit Honolulu District Regional Conditions
REGIONAL ADVISORIES
Use of Embedded or Bottomless Arch Culverts:
Use of embedded or bottomless arch culverts is encouraged for NWPs 3, 12, 14, 27, 29, 37, 39, 40, 41, 42, and 45, especially where frequent culvert maintenance or replacement is needed. Many undersized conventional culverts contribute to flooding and degrade the aquatic environment by causing channel incision, bank destabilization, and/or prevent fish passage.
Site-Specific Best Management Practices (BMPs):
To facilitate efficient review of a project, the Corps strongly recommends submittal of site-specific BMPs as part of the Pre-Construction Notification (PCN) for any project involving the discharge of dredged and/or fill material into waters of the U.S. Site-specific BMPs are generally a requirement of Department of the Army (DA) nationwide permit (NWP) verifications, either directly or by state water quality certification conditions, which are incorporated by reference. Project proponents risk delays, or, worse, enforcement action, should their contractor commence work pursuant to a contractor-submitted site-specific BMP plan that includes regulated activities, such as temporary access fills or stream diversions, not reviewed and/or permitted under the original request for NWP authorization. Please also note that permittees are liable for any regulated activities not specifically authorized by the DA NWP verification.
REGIONAL CONDITION 1 (Geographical Exclusions)
The following geographic areas and waters of the U.S. are excluded from coverage by the indicated NWPs.
1. Anchialine pools, montane bogs, natural freshwater lakes and saline lakes (Hawaii only) (NWPs 7, 12, 14, 18, 19, 29, 39, 40, 41, 42, 44).
2. Designated Critical Resource Waters and adjacent wetlands (pursuant to General Condition 19), as well as American Heritage Rivers, National Wildlife Refuges, and State Marine Life Conservation Districts. However, a discharge may be authorized by any of the NWPs in National Wild and Scenic Rivers if the activity complies with General Condition 15 or in designated critical habitats for Federally listed threatened or endangered species if the activity complies with General Condition 17 and the U.S. Fish and Wildlife Service or National Marine Fisheries Service, whichever agency has jurisdiction, has concurred in a determination of compliance with this condition.
3. Kihei Wetlands - The area located on Maui between the Mokulele Hwy and Kilohana Drive, extending from the Piilani Highway to the ocean. (NWPs 7, 29, 39, 40, 41, and 42).
4. State of Hawaii - NWPs 21, 43, 44, 49 and 50.
5. Commonwealth of the Northern Mariana Islands, Territory of Guam and Territory of American Samoa (NWPs 29, 34, 39, 44, 49 and 50).
6. State of Hawaii – Yards and recreation facilities such as playgrounds, playing fields, and golf courses (NWP 29); Recreational facilities, unless the project purpose is recreation (NWP 39); and golf courses (NWP 42).
7. Shrimp pond aquaculture – NWP 48. Commercial operations in Hawaii, Commonwealth of the Northern Mariana Islands, Territory of Guam and Territory of American Samoa shall be permitted individually because of the scale, frequency of siting in existing wetlands, and potential for impacts different from bivalve culture. Note: This regional prohibition refers only to new activities, not routine maintenance activities for existing operations.
REGIONAL CONDITION 2 (Notification)
Pursuant to the final 2007 NWPs, all activities conducted under the following NWPs require pre-construction notification, regardless of acreage impacted: 7, 8, 17, 21, 29, 31, 33, 34, 37, 38, 39, 40, 42, 44, 45, 46, 49 and 50. In Hawaii and the Pacific Islands, the following additional NWPs require notification to the District Engineer in accordance with General Condition 30* for all discharges of dredged or fill material into waters of the U.S. or work within Section 10 navigable waters of the U.S.: 3, 4, 5, 6, 12, 13, 14, 16, 18, 19, 22, 25, 27, 28, 35, 36, and 41.
*Note: For projects directly impacting “Impaired Waters” as identified on the most recent CWA Section 303(d) list for the State of Hawaii, the PCN shall identify the waterbody as an Impaired Water and, where practicable, shall identify any mitigating measures or BMPs required/recommended by the State Department of Health for work in these areas.
REGIONAL CONDITION 3 (Acreage Limitation)
Maximum losses of waters of the U.S. under NWPs 3, 7, 40, 41, 42, 43, 45 and 46 in Hawaii, Guam American Samoa, and the CNMI for a single and complete project is limited to 1/3 acre. Maximum loss of waters of the U.S. under NWP 29 and 39 is limited to 1/4 acre (total impact of use of one or more NWP on the same project).
REGIONAL CONDITION 4 (Length Limitation)
The maximum length of fill within waters of the U.S. is limited to 200 linear feet under NWPs 12, 13, 14, 29, 39, 40, 42, 45 and 46, unless the district engineer waives this criterion by making a written determination that any discharges will result in minimal adverse effects to the aquatic environment. Note: This limit applies to intermittent and ephemeral streams as well as perennial waters.
REGIONAL CONDITION 5 (Bank Stabilization)
New rigid structures (ex: pre-cast concrete, concrete rubble masonry, or cast-in-place structures) are excluded from use as bank stabilization to protect restoration of storm-damaged uplands under NWP 3 for both tidal and non-tidal waters of the U.S., unless the district engineer has made a written determination that this form of containment is preferable to prevent sedimentation impacts to adjacent receiving waters.
REGIONAL CONDITION 6 (Sidecasting)
For NWPs 12 and 41, all sidecast materials shall be completely removed within 30 days of placement within waters of the U.S. Removal of the sidecast material may be phased in accordance with the progress of the work.
REGIONAL CONDITION 7 (Runways and Taxiways)
Runways and taxiways are excluded from NWP 14 authorization in tidal waters of the U.S.
REGIONAL CONDITION 8 (Stream Modification)
Permanent stream channelization and/or the construction of dams that impound waters of the U.S. shall not be conducted under NWPs 7, 12, 14, 18, 25, 39, 40, 41, and 42 in Hawaii, CNMI, Guam and American Samoa.
REGIONAL CONDITION 9 (Compensatory Mitigation)
Upland vegetation buffers shall not be used as the primary or sole method to offset permanent losses of wetland and aquatic areas authorized under any of the NWPs in Hawaii, CNMI, Guam and American Samoa. Use of vegetated upland buffers is strongly encouraged as part of a compensatory mitigation plan that replaces lost aquatic functions through restoration, enhancement, creation or, under exceptional circumstances, preservation. Compensatory mitigation shall provide a minimum ratio of 1:1 replacement of unavoidable aquatic resource function losses.
REGIONAL CONDITION 10 (Mitigation Measures)
A plan employing the techniques listed below shall be implemented to avoid or minimize disturbance to wetlands, riparian areas and beach fringes and/or to re-establish vegetation in such areas when disturbance cannot be avoided. Areas disturbed during project construction shall be revegetated as soon as possible. Erosion protection shall be provided and maintained until the soil is permanently stabilized.
1) Avoidance and minimization techniques may vary with site conditions and include, but are not limited to, the following:
a. Planning construction access and scheduling work to avoid or minimize damage to wetland vegetation.
b. Using crane matting or suitable geotextile material to protect vegetation from damage by heavy equipment.
2) Revegetation techniques may vary with site conditions and include, but are not limited to, the following:
Seeding, planting, replacement of reserved ground cover, and/or fertilizing of re-contoured ground to promote re-establishment of natural plant communities. Species to be used for seeding and planting shall follow this order of preference: 1) species native to the site; 2) species native to the area; 3) species native to the state; 4) non-native non-invasive, species. Note: non-native species shall be used only when native species are not available. The following species are known to be highly invasive and shall not be used under any circumstances for revegetation under these NWPs: 1) species included on the USDA APHIS Plant Protection and Quarantine, Federal Noxious Weed List as of 6/7/99; 2) species included on the Hawaii Department of Agriculture, List of Plant Species Designated as Noxious Weeds for Eradication or Control Purposes (6/18/92); and 3) the University of Hawaii, Department of Botany, Distribution Maps of Alien Plants in Hawaii by island, Hawaiian Ecosystems at Risk (HEAR) Project (1/16/01).
REGIONAL CONDITION 11 (Site Identification)
Project limits of authorized sites shall be clearly identified in the field (e.g., by staking, flagging, silt fencing, buoys, existing footprint for maintenance activities, etc.) prior to clearing and construction to ensure that impacts to waters of the U.S. (including wetlands) beyond project footprints are avoided.
REGIONAL CONDITION 12 (Endangered Species)
1) A survey of the project area shall be performed just prior to commencement or resumption of construction activity to ensure that no protected species (listed or proposed for listing) are in the project area. If protected species are detected, construction activities shall be postponed until the protected species voluntarily leave the area.
2) If any listed species enters the area during conduct of construction activities, all activities shall cease until the protected species voluntarily departs the area.
3) All on-site project personnel shall be apprised of the status of any listed species potentially present in the project area and the protections afforded to those species under Federal laws. Brochures explaining the laws and guidelines for listed species in Hawaii, American Samoa, and Guam may be downloaded from http://www.nmfs.noaa.gov/pr/ and http://www.fws.gov/pacificislands/species.html.
4) Any incidental take of marine mammals shall be reported immediately to NOAA Fisheries’ 24-hour hotline at 1-888-256-9840. Information reported must include the name and phone number of a point of contact, location of the incident, and nature of the take and/or injury.
Note: Conditions 12.1-12.4 pertain to projects within waters that may support listed marine mammals and/or sea turtles. Additional requirements may be designated by the Corps as appropriate for specific projects.
5) Pursuant to the Endangered Species Act, any take of federally protected species (other than marine mammals) must be reported to the U.S. Fish and Wildlife Office of Law Enforcement in Honolulu at 1-808-861-8525.
REGIONAL CONDITION 13 (Standard Best Management Practices)
The following measures (as applicable) shall be incorporated into projects to minimize the degradation of water quality and impacts to fish and aquatic resources:
1) Turbidity and sediment from project-related work shall be minimized and contained to the immediate vicinity of the project through the appropriate use of effective sediment containment devices and the curtailment of work during adverse tidal and weather conditions.
2) The work shall be conducted in the dry season or when any affected stream has minimal or no flow, to the extent practicable. The work shall be discontinued during flooding, intense rainfall, storm surge, or high surf conditions where runoff and turbidity cannot be controlled. Shoreline work will be done during low tides as much as possible.
3) Dredging/filling in the marine/aquatic environment shall be scheduled to conservatively avoid potential coral spawning and recruitment periods.
4) Dredging and filling in the marine/aquatic environment shall be designed to avoid or minimize the loss of special aquatic sites (coral reefs, wetlands, riffle-pool complexes, etc.).
5) All project-related materials and equipment (dredges, barges, backhoes etc) to be placed in the water shall be cleaned of pollutants prior to use.
6) No project-related materials (fill, revetment rock, pipe etc.) shall be stockpiled in the water (intertidal zones, reef flats, stream channels, wetlands etc.).
7) All construction debris and materials removed from the marine/aquatic environment shall be disposed of at an approved upland or alternative disposal site.
8) No contamination (by trash, debris, alien species introductions, etc.) of adjacent waters of the U.S., including special aquatic sites, shall result from project-related activities.
9) Fueling of project-related vehicles and equipment shall take place away from the water and a contingency plan to control petroleum products accidentally spilled during the project shall be developed. Absorbent pads and containment booms shall be stored on-site, if appropriate, to facilitate the clean-up of accidental petroleum releases.
10) Any under-layer fills used in the project shall be protected from erosion with suitable material (such as precast concrete armor or mat units) as soon after placement as practicable.
11) Any soil exposed near water as part of the project shall be protected from erosion (with suitable material such as plastic sheeting, filter fabric etc.) after exposure and stabilized as soon as practicable (with vegetation matting, hydroseeding, etc.).
12) Silt fences, silt curtains, or other diversion or containment structures shall be installed to contain sediment and turbidity at the work site (a) parallel to and within 10 feet of the toe of any fill, or soil which may introduce sediment to an adjacent aquatic site; and (b) adjacent to any fill placed or soil exposed within an aquatic site. All silt fences, curtains, and other structures shall be installed properly and maintained in a functioning manner for the life of the construction period and until the impact area is permanently stabilized, self sustaining, and/or turbidity levels, elevated due to construction, return to ambient levels.