The purpose of this special public notice is to inform the general public of the issuance of final regional conditions applicable for Nationwide Permit (NWP) activities in the State of Maryland, the Commonwealth of Pennsylvania within the Baltimore and Philadelphia District’s regulatory geographic boundaries, the District of Columbia, and certain military installations of northern Virginia (i.e., Cameron Station, Fort Belvoir, Fort Myer, and the Pentagon). Furthermore, this special public notice announces the suspension of various NWPs in the State of Maryland and the Commonwealth of Pennsylvania within the Baltimore and Philadelphia District’s regulatory geographic boundaries.
On February 21, 2012, the U.S. Army Corps of Engineers announced in the Federal Register, the national reissuance of 48 of the 49 existing NWPs and the issuance of two new NWPs. In this Federal Register notice, the Corps also announced the reissuance of 28 existing general conditions, three new general conditions, and three new definitions.
On February 21, 2012, the U.S. Army Corps of Engineers announced in the the national reissuance of 48 of the 49 existing NWPs and the issuance of two new NWPs. In this notice, the Corps also announced the reissuance of 28 existing general conditions, three new general conditions, and three new definitions.
The NWPs and the general conditions go into effect on March 19, 2012.
After the publication of this Federal register notice, Corps districts began finalizing their regional conditions for the reissued 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 also help ensure protection of high value waters within the District. The regional conditions and suspension of some of the NWPs have been approved by the Division Engineer, North Atlantic Division, for the State of Maryland, the Commonwealth of Pennsylvania within the Baltimore and Philadelphia District’s regulatory geographic boundaries, the District of Columbia, and military installations of northern Virginia and are effective as of the date of this public notice. The Baltimore District initiated the development of these regional conditions in special public notice #11-33 dated April 26, 2011. The regional conditions reflect a finalization of that effort in conjunction with the NWPs published in the Federal Register on February 21, 2012. An enclosure for this special public notice (Enclosure A) lists the final regional conditions for the Baltimore District. These final regional conditions are also posted on the Baltimore District Internet home page. The URL address for these regional conditions is:
http://www.nab.usace.army.mil/Missions/Regulatory/PublicNotices.aspx
Unless otherwise noted, these regional conditions are applicable for NWP activities in the State of Maryland, the Commonwealth of Pennsylvania within the Baltimore and Philadelphia District's regulatory geographic boundaries, the District of Columbia and certain military installations of northern Virginia (i.e., Cameron Station, Fort Belvoir, Fort Myer, and the Pentagon).
The 2012 Nationwide Permits, the February 21, 2012 Federal Register notice and the notice of corrections are available on the Corps home page at:
http://www.usace.army.mil/missions/civilworks/regulatoryprogramandpermits/nationwidepermits.aspx
Publication of the Federal Register notice also began a 60-day Clean Water Act Section 401 water quality certification (WQC) and the 90-day Coastal Zone Management Act (CZMA) consistency determination processes.
After the 60-day period, the latest version of any written position taken by a state, Indian tribe, or EPA on its WQC for any of the NWPs will be accepted as the state’s, Indian tribe’s, or EPA’s final position on those NWPs. If the state, Indian tribe, or EPA takes no action by April 20, 2012, WQC will be considered waived for those NWPs. After the 90-day period, the latest version of any written position taken by a state on its CZMA consistency determination for any of the NWPs will be accepted as the state’s final position on these NWPs. If the state takes no action by May 21, 2012, CZMA concurrence will be presumed for those NWPs.
While the states, Indian tribes, and EPA complete their WQC processes and the states complete their CZMA consistency determination processes, the use of the NWP to authorize a discharge into waters of the United States is contingent upon obtaining individual water quality certification or a case-specific WQC waiver. Likewise, the use of an NWP to authorize any activity within a state’s coastal zone, or outside a state’s coastal zone that will affect land or water used or natural resources of that state’s coastal zone, is contingent upon obtaining an individual CZMA consistency determination, or a case-specific presumption of CZMA concurrence.
There are two types of regional conditions: Corps regional conditions and 401/CZM regional conditions. The 401/CZM regional conditions are developed by the State under Section 401 of the CWA and Section 307 of the Coastal Zone Management Act and become regional conditions to the NWPs. That is, the 401/CZM regional conditions are conditions of issued NWPs authorizations.
The District of Columbia Department of the Environment has issued Water Quality Certification (WQC) under Section 401 of the Clean Water Act for all NWPs, subject to the condition that the applicant obtains an individual, projectspecific WQC from the District Department of the Environment. There are no Coastal Zone Management Program (CZMP) requirements in the District of Columbia. Therefore, the use of a NWP to authorize any activity within the District of Columbia is contingent upon obtaining an individual WQC or a project-specific WQC waiver. For work in Washington, D.C., a WQC can be obtained by submitting a joint permit application form (see the Baltimore District regulatory webpage at:
http://www.nab.usace.army.mil/Missions/Regulatory.aspx
and documents to:
The Associate Director
Water Quality Division
District Department of the Environment
1200 First Street, N.E., 5th Floor
Washington, DC 20002
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The Baltimore District has implemented State Programmatic General Permits (SPGPs) in the State of Maryland and in the Commonwealth of Pennsylvania, known as the MDSPGP-4 and the PASPGP-4, respectively. These SPGPs are designed to continue to authorize certain activities previously covered by the NWP program and institute a streamlined Corps regulatory process that has been integrated with state processes. Suspension of various NWPs will avoid confusion over SPGP use and eliminate redundancy since State and Federal regulatory programs are administered jointly in these states. If the SPGPs become void, enjoined, suspended, revoked, or removed from effect for any reason, the Corps will consider reissuance of some or all of the suspended NWPs for the purpose of efficiency and effectively protecting the aquatic environment, while maintaining an acceptable level of responsiveness to the regulated public.
I. Commonwealth of Pennsylvania
A. The following NWPs are not suspended anywhere in the Commonwealth of Pennsylvania within
the Baltimore and Philadelphia District’s regulatory geographic boundaries:
NWP 2: Structures in Artificial Canals
NWP 3: Maintenance
NWP 6: Survey Activities
NWP 8: Oil and Gas Structures
NWP 9: Structures in Fleeting and Anchorage Areas
NWP 16: Return Water from Upland Contained Disposal Areas
NWP 17: Hydropower Projects
NWP 21: Surface Coal Mining Activities
NWP 22: Removal of Vessels
NWP 23: Approved Categorical Exclusions
NWP 24: Indian Tribe or State Administered Section 404 Programs
NWP 27: Aquatic Habitat Restoration, Establishment, and Enhancement Activities
NWP 28: Modifications of Existing Marinas
NWP 30: Moist Soil Management for Wildlife
NWP 31: Maintenance of Existing Flood Control Facilities
NWP 32: Completed Enforcement Activities
NWP 34: Cranberry Production Activities
NWP 35: Maintenance Dredging of Existing Basins
NWP 38: Cleanup of Hazardous and Toxic Wast
NWP 44: Mining Activities
NWP 48: Commercial Shellfish Aquaculture Activities
NWP 49: Coal Remining Activities
NWP 50: Underground Coal Mining Activities
NWP 51: Land-Based Renewable Energy Generation Facilities
NWP 52: Water-Based Renewable Energy Generation Pilot Projects
B. This suspension of the NWPs listed in Part I.C of this Special Public Notice is not applicable within the Commonwealth of Pennsylvania within the Baltimore and Philadelphia District’s regulatory geographic boundaries for the following:
1. Part III.A.4 of the PASPGP-4 lists certain ineligible waterways for which SPGP authorization is not available. Therefore, consistent with the processes outlined in Part V.D of the PASPGP-4 (or its successor) and the NWPs, NWP authorization may be available for activities that include activities located channelward of the ordinary high water line (OHWL) on non-tidal waters and/or the mean high water line (MHWL) on tidal waters on the following water bodies in Pennsylvania):
a. The Delaware River, downstream of the Morrisville-Trenton Railroad Bridge in Morrisville, Pennsylvania; and b. The Schuylkill River downstream of the Fairmount Dam in Philadelphia, Pennsylvania.
2. Activities whereby the regulated activity or area of indirect impact (secondary impact) is not wholly located within the Commonwealth of Pennsylvania, i.e. the regulated activity extends across state boundaries.
3. Activities within federally regulated waters and wetlands that are not regulated as waters of the Commonwealth of Pennsylvania may be eligible for verification under NWPs.
4. Activities performed by federal agencies that do not require authorization by the Commonwealth of Pennsylvania pursuant to 25 PA 105 et seq. may be eligible for verification under NWPs.
C. The following NWPs are suspended in the Commonwealth of Pennsylvania within the Baltimore and Philadelphia District’s regulatory geographic boundaries, except in those areas and activities enumerated in
Section I.B. of this Special Public Notice:
NWP 1: Aids to Navigation
NWP 4: Fish and Wildlife Harvesting, Enhancement, & Attraction Devices and Activities
NWP 5: Scientific Measurement Devices
NWP 7: Outfall Structures and Associated Intake Structures
NWP 10: Mooring Buoys
NWP 11: Temporary Recreational Structures
NWP 12: Utility Line Activities
NWP 13: Bank Stabilization
NWP 14: Linear Transportation Projects
NWP 15: U.S. Coast Guard Approved Bridges
NWP 18: Minor Discharges
NWP 19: Minor Dredging
NWP 20: Response Operations for Oil and Hazardous Substances
NWP 25: Structural Discharges
NWP 26: [Reserved]
NWP 29: Residential Developments
NWP 33: Temporary Construction, Access, and Dewatering
NWP 36: Boat Ramps
NWP 37: Emergency Watershed Protection and Rehabilitation
NWP 39: Commercial and Institutional Developments
NWP 40: Agricultural Activities
NWP 41: Reshaping Existing Drainage Ditches
NWP 42: Recreational Facilities
NWP 43: Stormwater Management Facilities
NWP 45: Repair of Uplands Damaged by Discrete Events
NWP 46: Discharges in Ditches
NWP 47: [Reserved]
II. State of Maryland
A. The following NWPs are not suspended anywhere in the State of Maryland: Some do have additional Regional Conditions applicable in Maryland.
NWP 3: Maintenance (That portion of NWP 3 that authorizes the repair, rehabilitation, or replacement in-kind of any previously authorized, currently serviceable structure or fill destroyed or damaged by storms, floods, fires, or other discrete events)
NWP 4: Fish & Wildlife Harvesting, Enhancement and Attraction Devices and Activities
NWP 8: Oil and Gas Structures on the Outer Continental Shelf
NWP 17: Hydropower Projects
NWP 20: Response Operations for Oil and Hazardous Substances
NWP 22: Removal of Vessels
NWP 23: Approved Categorical Exclusions
NWP 25: Structural Discharges
NWP 27: Aquatic Habitat Restoration, Establishment, and Enhancement Activities
NWP 30: Moist Soil Management for Wildlife
NWP 31: Maintenance of Existing Flood Control Facilities
NWP 32: Completed Enforcement Actions
NWP 37: Emergency Watershed Protection and Rehabilitation
NWP 38: Cleanup of Hazardous and Toxic Waste
NWP 48: Commercial Shellfish Aquaculture Activities (That portion of NWP 48 that authorizes existing commercial shellfish aquaculture activities having a valid lease from the State)
NWP 52: Water-Based Renewable Energy Generation Pilot Projects (That portion of NWP 52 that authorizes activities in tidal navigable waters of the United States)
B. The suspension of the NWPs listed in section II.C of this notice is not applicable within the State of Maryland in certain wetlands and other waters of the United States near the Chesapeake and Delaware Canal. These areas include Back Creek (of the Chesapeake and Delaware Canal), east of a line extending from Welch Point to Courthouse Point to the Delaware line and to the Second Street Bridge to the south; Herring Creek east of the line extending from Welch Point to Courthouse Point to the dam that crosses Herring Creek; and Long Branch to the Boat Yard Road Bridge to the north, including adjacent and contiguous jurisdictional wetlands to these tidal waterways. These exempted areas fall within the U.S. Army Corps of Engineers (Corps) Philadelphia District’s regulatory geographic boundaries. The Philadelphia District has restricted the use of NWP 12, NWP 35, and NWP 36 within these areas near the Chesapeake and Delaware Canal.
C. The following NWPs are suspended in the State of Maryland:
NWP 1: Aids to Navigation
NWP 2: Structures in Artificial Canals
NWP 3: Maintenance (except for repair, rehabilitation, or replacement in-kind of any previously authorized, currently serviceable structure or fill destroyed or damaged by storms, floods, fires, or other discrete events)
NWP 5: Scientific Measurement Devices
NWP 6: Survey Activities
NWP 7: Outfall Structures and Associated Intake Structures
NWP 9: Structures in Fleeting and Anchorage Areas
NWP 10: Mooring Buoys
NWP 11: Temporary Recreational Structures
NWP 12: Utility Line Activities
NWP 13: Bank Stabilization
NWP 14: Linear Transportation Projects
NWP 15: U.S. Coast Guard Approved Bridges
NWP 16: Return Water from Upland Contained Disposal Areas
NWP 18: Minor Discharges
NWP 19: Minor Dredging
NWP 21: Surface Coal Mining Activities
NWP 24: Indian Tribe or State Administered Section 404 Programs
NWP 26: [Reserved]
NWP 28: Modifications of Existing Marinas
NWP 29: Residential Developments
NWP 33: Temporary Construction, Access and Dewatering
NWP 34: Cranberry Production Activities
NWP 35: Maintenance Dredging of Existing Basins
NWP 36: Boat Ramps
NPW 39: Commercial and Institutional Developments
NWP 40: Agricultural Activities
NWP 41: Reshaping Existing Drainage Ditches
NWP 42: Recreational Facilities
NWP 43: Stormwater Management Facilities
NWP 44: Mining Activities
NWP 45: Repair of Uplands Damaged by Discrete Events
NWP 46: Discharges in Ditches
NWP 47: [Reserved]
NWP 48: Commercial Shellfish Aquaculture Activities (that portion of NWP 48 that authorizes commercial shellfish aquaculture activities in new project areas)
NWP 49: Coal Remining Activities
NWP 50: Underground Coal Mining Activities
NWP 51: Land-Based Renewable Energy Generation Facilities
NWP 52: Water-Based Renewable Energy Generation Pilot Projects (except for activities in tidal navigable waters of the United States)
III. The NWPs are not suspended in the District of Columbia and certain military installations of northern Virginia (i.e., Cameron Station, Fort Belvoir, Fort Myer, and the Pentagon).
IV. This suspension terminates the Corps’ ability to verify any new projects under one of the suspended NWPs unless and until the Chief of Engineers or the appropriate District or Division Engineer makes a determination to the contrary pursuant to 33 C.F.R. § 330.4 or § 330.5. Activities that have commenced or been under contract to commence construction between March 19, 2012, and the date of this public notice and that meet the terms and conditions of the NWP activities are authorized provided the activity has received an individual water quality certification (WQC) or a case-specific WQC waiver and/or an individual Coastal Zone Management Act (CZMA) consistency determination or a case-specific presumption of CZMA concurrence. This authorized work must be completed within twelve months of the date of the public notice announcing the NWP suspensions under the terms and conditions of the appropriate NWP(s).
Activities completed under the authorization of a NWP which was in effect at the time the activity was completed continue to be authorized by that NWP.
For more information regarding the final regional conditions and the suspension of Nationwide Permits, contact Ms. Beth E. Bachur, CENAB-OP-R, at (410) 962-4336, or email at Beth.Bachur@usace.army.mil.
FOR THE DISTRICT ENGINEER:
Beth E. Bachur
Acting Chief, Regulatory Branch