U.S. Army Corps of Engineers, DoD.
Notice of intent and request for comments.
The U.S. Army Corps of Engineers is proposing to authorize Natural Resources Conservation Service (NRCS) approved categorical exclusions for recurring conservation, restoration, and survey related activities under Nationwide Permit 23 (NWP 23). The Corps is requesting comment on the appropriateness of including these NRCS categorical exclusions under nationwide permit authorization and any conditions or restrictions that should be added so that those categorically excluded activities can be verified by NWP 23 to permit discharges of dredged or fill material and/or structures or work in waters of the United States. These NRCS categorically excluded activities have been approved by Council on Environmental Quality (CEQ) and have been finalized by the NRCS.
Written comments must be submitted on or before July 12, 2011.
You may submit comments, identified by docket number COE-2011-0008, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
E-mail: firstname.lastname@example.org Include the docket number, COE-2011-0008, in the subject line of the message.
Mail: U.S. Army Corps of Engineers, Attn: CECW-CO-R (Karen Mulligan), 441 G Street NW., Washington, DC 20314-1000.
Hand Delivery/Courier: Due to security requirements, we cannot receive comments by hand delivery or courier.Start Printed Page 28007
Instructions: Direct your comments to docket number COE-2011-0008. All comments received will be included in the public docket without change and may be made available on-line at http://www.regulations.gov, including any personal information provided, unless the commenter indicates that the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through regulations.gov or e-mail. The regulations.gov Web site is an anonymous access system, which means we will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail directly to the Corps without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, we recommend that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If we cannot read your comment because of technical difficulties and cannot contact you for clarification, we may not be able to consider your comment. Electronic comments should avoid the use of any special characters, any form of encryption, and be free of any defects or viruses.
Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. All documents in the docket are listed. Although listed in the index, some information is not publicly available, such as CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Karen Mulligan, Headquarters, U.S. Army Corps of Engineers, Operations and Regulatory Community of Practice, Washington, DC 20314-1000, by phone at 202-761-4664 or by e-mail at email@example.com.End Further Info End Preamble Start Supplemental Information
The Corps of Engineers issued NWP 23 to authorize certain activities conducted by other Federal agencies where the other Federal agency or department has determined, pursuant to the National Environmental Policy Act (NEPA), that the activity is categorically excluded from environmental documentation because it is included within a category of actions that have no more than minimal adverse environmental effects either individually or cumulatively. NWP 23 is intended to reduce duplicative Federal processes when another agency has completed requirements pursuant to NEPA, and to expedite Department of the Army authorizations for those activities that involve a discharge of dredged or fill material and/or structures or work in waters of the United States that have no more than minimal adverse environmental effects on the aquatic environment.
The terms and conditions of NWP 23 describe the general process followed by the Corps to approve categorically excluded activities for use with NWP 23. To have their categorical exclusions (CEs) approved for use with NWP 23, agencies must submit an application to the Office of the Chief of Engineers. Before approving the use of those CEs with NWP 23, the Corps will solicit public comment. The Corps may add additional conditions, including pre-construction notification or reporting requirements, to ensure that categorically excluded activities covered under NWP 23 result in no more than minimal individual and cumulative adverse environmental effects on the aquatic environment.
To date, the Corps has approved the CEs of three federal agencies for inclusion under NWP 23. CEs have been approved for the Bureau of Reclamation, Federal Highway Administration, and United States Coast Guard. Regulatory Guidance Letter 05-07, which was issued on December 8, 2005, provides the current list of approved CEs. This RGL is available on the Corps Headquarters Web site at: http://www.usace.army.mil/CECW/Documents/cecwo/reg/rgls/rgl05-07.pdf.
The current NWP 23 was issued on March 12, 2007 (see 72 FR 11092), and expires on March 18, 2012. In the February 16, 2011, issue of the Federal Register (76 FR 9174), we proposed to reissue NWP 23 without any changes. The process for approving CEs for use with NWP 23 is independent of the rulemaking process for reissuing or modifying NWP 23. If the Corps approves any additional agency CEs for use with NWP 23, a new Regulatory Guidance Letter will be issued but the NWP itself will not be affected.
The NRCS has requested Corps approval of 26 categorically excluded activities for inclusion in verification under NWP 23. The NRCS has previously adopted these categorically excluded activities pursuant to the CEQ Regulation for Implementing NEPA (40 CFR part 1500 et seq.). The list of NRCS categorically excluded activities was approved by the CEQ and has been finalized by the NRCS. Five of the CEs have been established by the NRCS under 7 CFR 650.6 (a)(1-5) and 21 of the CEs have been established under 7 CFR 650.6(d)(1-21).
The Corps review process for the NRCS request to include its 26 categorically excluded activities under NWP 23 starts with today's publication of notice of intent and 60-day comment period. After the comment period has ended, the Corps will evaluate the comments received in response to this notice. If the Corps approves any or all of these categorically excluded activities, Regulatory Guidance Letter 05-07 will be rescinded and replaced with a new Regulatory Guidance Letter that provides a list and description of all categorically excluded activities that are authorized under NWP 23.
We are proposing to condition these NRCS categorically excluded activities to require reporting to Corps district offices. NRCS activities that are categorically excluded under NEPA that involve a discharge of dredged or fill material in a water of the United States and that require Department of the Army authorization under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899, must be reported to the appropriate district engineer, at least 30 days prior to commencing activities. The report submitted to the district engineer would be required to contain the following information: (1) The site-specific environmental evaluation (NRCS-CPA-52) approved by NRCS staff for the project; (2) a vicinity map showing the location of the proposed activity; and (3) project plans. A blank copy of NRCS's environmental evaluation worksheet is provided in the regulations.gov docket for this action, so that interested parties can see what information will be provided in completed copies of worksheet NRCS-CPA-52.
The district engineer will have 30 days from the date of receipt of the report to notify the project proponent if he or she has determined that the proposed activity does not qualify for NWP 23 authorization. In response to a project-specific report, the district engineer may require compensatory mitigation to ensure that the activity results in minimal individual and cumulative adverse environmental effects on the aquatic environment. In such cases, the district engineer will Start Printed Page 28008send a NWP verification letter to the project proponent, which will include special conditions concerning compensatory mitigation requirements. If the district engineer believes that specific concerns for the aquatic environment or other public interest factors warrant further review, discretionary authority may be exercised on a case-by-case basis to require an individual permit.
If the district engineer does not respond to the submitted report within 30 days of receipt, then the project proponent can proceed under the NWP 23 authorization as long as he or she has obtained Clean Water Act Section 401 water quality certification and/or a Coastal Zone Management Act consistency concurrence, if required.
The site-specific environmental evaluation prepared by NRCS will address compliance with the Endangered Species Act and Section 106 of the National Historic Preservation Act. If the proposed activity may affect endangered or threatened species or will destroy or adversely modify critical habitat, NRCS will be the lead Federal agency responsible for Endangered Species Act Section 7 consultation. If the proposed activity has the potential to cause effects to historic properties, NRCS will be the lead Federal agency responsible for consultation under Section 106 of the National Historic Preservation Act.
Please note that several of the NRCS categorically excluded activities may not require Department of the Army authorization but are listed for consistency and to reduce confusion when referencing the CE numbers. Approval of the NRCS CEs for inclusion under NWP 23 provides further clarification to Corps and NRCS staff and a consistent mechanism to authorize these categorically excluded activities.
In compliance with the principles in the President's Memorandum of June 1, 1998, (63 FR 31855), regarding plain language, this preamble is written using plain language. The use of “we” in this notice refers to the Corps. We have also used the active voice, short sentences, and common everyday terms except for necessary technical terms.
Paperwork Reduction Act
The proposed action will not substantially change paperwork burdens on the regulated public because many of the 26 categorically excluded activities may also be authorized by other nationwide permits, regional general permits, or individual permits that have similar paperwork requirements.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. For the Corps Regulatory Program under Section 10 of the Rivers and Harbors Act of 1899, Section 404 of the Clean Water Act, and Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, the current OMB approval number for information collection requirements is maintained by the Corps of Engineers (OMB approval number 0710-0003, which expires on August 31, 2012).
Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we determined that this is not a “significant regulatory action” and therefore it is not subject to review under requirements of the Executive Order.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the Corps 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.” The proposed action does not have federalism implications. We do not believe that the proposed action will have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. The proposed action will not impose any additional substantive obligations on State or local governments. Therefore, Executive Order 13132 does not apply to this proposed action.
Regulatory Flexibility Act, as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.
The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-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 the proposed authorization on small entities, a small entity is defined as: (1) A small business based on Small Business Administration 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; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of the proposed action on small entities, I certify that it will not have a significant impact on a substantial number of small entities.
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, the agencies 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 a rule for which a written statement is needed, Section 205 of the UMRA generally requires the agencies 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 an agency to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation of why that alternative was not adopted. Before an agency 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 regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.Start Printed Page 28009
We have determined that the proposed action 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, because the approval of these CEs for use with NWP 23 provides a less costly, more cost-effective, and less burdensome means of obtaining Department of the Army authorization for certain activities than obtaining an individual permit. Therefore, this proposal is not subject to the requirements of Sections 202 and 205 of the UMRA. For the same reasons, we have determined that the proposed action contains no regulatory requirements that might significantly or uniquely affect small governments. Therefore, the proposed action is not subject to the requirements of Section 203 of UMRA.
Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) 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 both criteria, we must evaluate the environmental health or safety effects of the proposed rule on children, and explain why the regulation is preferable to other potentially effective and reasonably feasible alternatives.
The proposed approval of these CEs for use with NWP 23 is not subject to this Executive Order because it is not economically significant as defined in Executive Order 12866. In addition, this proposed action does not concern an environmental or safety risk that we have reason to believe may have a disproportionate effect on children.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires agencies to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The phrase “policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” The proposed action does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.
Therefore, Executive Order 13175 does not apply to this proposal. However, in the spirit of Executive Order 13175, we specifically request comment from tribal officials on the proposed approval of these CEs for use with NWP 23.
A decision document will be prepared for this action after the comment period has ended and all comments received have been evaluated. That decision document will be available in the regulations.gov docket for this action and through Headquarters, U.S. Army Corps of Engineers, Operations and Regulatory Community of Practice, 441 G Street, NW., Washington, DC 20314-1000.
The NRCS has adopted their CEs pursuant to the CEQ Regulation for Implementing the Procedural Provisions of NEPA (40 CFR part 1500 et seq.). The list of NRCS's CEs has been approved by the CEQ and was finalized by the NRCS.
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 the final decision concerning this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the Federal Register. The proposed authorization is not a “major rule” as defined by 5 U.S.C. 804(2).
Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental justice part of its mission. Executive Order 12898 provides that each federal agency conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin.
The proposed authorization is not expected to negatively impact human health or the environment of any community, and therefore is not expected to cause any disproportionately high and adverse human health or environmental impacts to minority or low-income communities. The purpose of the authorization is to reducing duplicative Federal processes when another Federal agency has completed the NEPA analysis for an activity, and to expedite Department of the Army authorization for projects having no more than minimal adverse environmental affects either individually or cumulatively.
The proposed approval of NRCS CEs under NWP 23 is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
We are proposing to approve NRCS CEs for use with NWP 23, which was issued under the authority of Section 404 of the Clean Water Act (33 U.S.C. 1344) and Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.)
List of NRCS Categorical Exclusions
NRCS Categorical Exclusions established under 7 CFR 650.6(a)(1-5):
(1) Soil Survey—7 CFR part 611.
(2) Snow Survey and Water Supply Forecasts—7 CFR part 612.
(3) Plant Materials for Conservation—7 CFR part 613.
(4) Inventory and Monitoring—Catalog of Federal Assistance 10.980
(5) River Basin Studies under Section 6 of Public Law 83-566 as amended—7 CFR part 621.
NRCS Categorical Exclusions established under 7 CFR 650.6(d)(1-21):
(1) Planting appropriate herbaceous and woody vegetation, which does not include noxious weeds or invasive Start Printed Page 28010plants, on disturbed sites to restore and maintain the sites ecological functions and services.
(2) Removing dikes and associated appurtenances (such as culverts, pipes, valves, gates, and fencing) to allow waters to access floodplains to the extent that existed prior to the installation of such dikes and associated appurtenances.
(3) Plugging and filling excavated drainage ditches to allow hydrologic conditions to return to pre-drainage conditions to the extent practicable.
(4) Replacing and repairing existing culverts, grade stabilization, and water control structures and other small structures that were damaged by natural disasters where there is no new depth required and only minimal dredging, excavation, or placement of fill is required.
(5) Restoring the natural topographic features of agricultural fields that were altered by farming and ranching activities for the purpose of restoring ecological processes.
(6) Removing or relocating residential, commercial, and other public and private buildings and associated structures constructed in the 100-year floodplain or within the breach inundation area of an existing dam or other flood control structure in order to restore natural hydrologic conditions of inundation or saturation, vegetation, or reduce hazards posed to public safety.
(7) Removing storm debris and sediment following a natural disaster where there is a continuing and eminent threat to public health or safety, property, and natural and cultural resources and removal is necessary to restore lands to pre-disaster conditions to the extent practicable. Excavation will not exceed the pre-disaster condition.
(8) Stabilizing stream banks and associated structures to reduce erosion through bioengineering techniques following a natural disaster to restore pre-disaster conditions to the extent practicable, e.g., utilization of living and nonliving plant materials in combination with natural and synthetic support materials, such as rocks, rip-rap, geo-textiles, for slope stabilization, erosion reduction, and vegetative establishment and establishment of appropriate plant communities (bank shaping and planting, brush mattresses, log, root wad, and boulder stabilization methods).
(9) Repairing or maintenance of existing small structures or improvements (including structures and improvements utilized to restore disturbed or altered wetland, riparian, in stream, or native habitat conditions). Examples of such activities include the repair or stabilization of existing stream crossings for livestock or human passage, levees, culverts, berms, dikes, and associated appurtenances.
(10) Constructing small structures or improvements for the restoration of wetland, riparian, in stream, or native habitats. Examples of activities include: (1) Installation of fences, and (2) construction of small berms, dikes, and associated water control structures.
(11) Restoring an ecosystem, fish and wildlife habitat, biotic community, or population of living resources to a determinable pre-impact condition.
(12) Repairing or maintenance of existing constructed fish passageways, such as fish ladders, or spawning areas impacted by natural disasters or human alteration.
(13) Repairing, maintaining, or installing fish screens to existing structures.
(14) Repairing or maintaining principal spillways and appurtenances associated with existing serviceable dams, originally constructed to NRCS standards, in order to meet current safety standards. Work will be confined to the existing footprint of the dam, and no major change in reservoir or downstream operations will result.
(15) Repairing or improving (deepening/widening/armoring) existing auxiliary/emergency spillways associated with dams, originally constructed to NRCS standards, in order to meet current safety standards. Work will be confined to the dam or abutment areas, and no major change in reservoir or downstream operation will result.
(16) Repairing embankment slope failures on structures, originally built to NRCS standards, where the work is confined to the embankment or abutment areas.
(17) Increasing the freeboard (which is the height from the auxiliary (emergency) spillway crest to the top of the embankment) of an existing dam or dike, originally built to NRCS standards, by raising the top elevation in order to meet current safety and performance standards. The purpose of the safety standard and associated work is to ensure that during extreme rainfall events, flows are confined to the auxiliary/emergency spillway so that the existing structure is not overtopped which may result in a catastrophic failure. Elevating the top of the dam will not result in an increase to lake or stream levels. Work will be confined to the existing dam and abutment areas, and no major change in reservoir operations will result. Examples of work may include the addition of fill material, such as earth or gravel, or placement of parapet walls.
(18) Modifying existing residential, commercial, and other public and private buildings to prevent flood damages, such as elevating structures or sealing basements to comply with current State safety standards and Federal performance standards.
(19) Undertaking minor agricultural practices to maintain and restore ecological conditions in floodplains after a natural disaster or on lands impacted by human alteration. Examples of these practices include: Mowing, haying, grazing, fencing, off-stream watering facilities, and invasive species control which are undertaken when fish and wildlife are not breeding, nesting, rearing young, or during other sensitive timeframes.
(20) Implementing soil control measures on existing agricultural lands, such as grade stabilization structures (pipe drops), sediment basins, terraces, grassed waterways, filter strips, riparian forest buffer, and critical area planting.
(21) Implementing water conservation activities on existing agricultural lands, such as minor irrigation land leveling, irrigation water conveyance (pipelines), irrigation water control structures, and various management practices.
The permittee must submit to the district engineer a copy of: (1) The site-specific environmental evaluation (NRCS-CPA-52) approved by NRCS staff for the project; (2) a vicinity map showing the location of the proposed activity; and (3) project plans. 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.Start Signature
Dated: May 6, 2011.
Michael G. Ensch,
Chief, Operations and Regulatory, Directorate of Civil Works.
[FR Doc. 2011-11831 Filed 5-12-11; 8:45 am]
BILLING CODE 3720-58-P