Army Corps’ New Nationwide Permits for Renewable Energy Projects Go Into Effect

the Corps described a new NWP for “Water-Based Renewable Energy Pilot Projects” that could give developers a reprieve from obtaining permits under § 10 of the Rivers and Harbors Act and § 404 of the Clean Water Act for the “construction, expansion, or modification of water-based wind or hydrokinetic pilot projects and their attendant features.”

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  10184 Federal Register /Vol. 77, No. 34/Tuesday, February 21, 2012/Notices DEPARTMENT OF DEFENSEDepartment of the Army, Corps ofEngineers RIN 0710–AA71 Reissuance of Nationwide Permits AGENCY : Army Corps of Engineers, DoD. ACTION : Final notice. SUMMARY : The U.S. Army Corps of Engineers (Corps) is reissuing 48 of the49 existing nationwide permits (NWPs),general conditions, and definitions,with some modifications. The Corps isalso issuing two new NWPs, three newgeneral conditions, and three newdefinitions. The effective date for thenew and reissued NWPs will be March19, 2012. These NWPs will expire onMarch 18, 2017. The NWPs will protectthe aquatic environment and the publicinterest while effectively authorizingactivities that have minimal individualand cumulative adverse effects on theaquatic environment. DATES : The NWPs and generalconditions will become effective onMarch 19, 2012. ADDRESSES : U.S. Army Corps of Engineers, Attn: CECW–CO–R, 441 GStreet NW., Washington, DC 20314–1000. FOR FURTHER INFORMATION CONTACT : Mr.David Olson at 202–761–4922 or byemail at   or access the U.S. Army Corps of Engineers Regulatory Home Page at  Pages/cecwo  _ reg.aspx  .  SUPPLEMENTARY INFORMATION : Executive Summary The U.S. Army Corps of Engineers(Corps) issues nationwide permits(NWPs) to authorize certain activitiesthat require Department of the Armypermits under Section 404 of the CleanWater Act and/or Section 10 of theRivers and Harbors Act of 1899. Thepurpose of this regulatory action is toreissue 48 existing NWPs and issue twonew NWPs. In addition, three newgeneral conditions and three newdefinitions will be issued. The NWPsmay be issued for a period of no morethan five years. Therefore, the Corpsmust reissue the NWPs every five yearsto continue to authorize these activities.These 50 NWPs will go into effect onMarch 19, 2012.The NWPs authorize activities thathave minimal individual andcumulative adverse effects on theaquatic environment. The NWPsauthorize a variety of activities, such asaids to navigation, utility lines, bankstabilization activities, road crossings,stream and wetland restorationactivities, residential developments,mining activities, commercial shellfishaquaculture activities, and agriculturalactivities. Some NWP activities mayproceed without notifying the Corps, aslong as those activities satisfy the termsand conditions of the NWPs. OtherNWP activities cannot proceed until theproject proponent has submitted a pre-construction notification to the Corps,and for most NWPs the Corps has 45days to notify the project proponentwhether the activity is authorized byNWP. Background In the February 16, 2011, issue of the Federal Register (76 FR 9174), the U.S.Army Corps of Engineers (Corps)published its proposal to reissue 48existing nationwide permits (NWPs),issue two new NWPs, and not reissueone NWP. The Corps also proposed toreissue its general conditions and addtwo new general conditions.After evaluating the commentsreceived in response to the February 16,2011, proposal, we have made a numberof changes to the NWPs, generalconditions, and definitions to furtherclarify the permits, general conditions,and definitions, facilitate theiradministration, and strengthenenvironmental protection. Examples of improved environmental protectioninclude: imposing limits on surface coalmining activities authorized by NWP 21;modifying NWP 27 to authorizeadditional aquatic resource restorationand enhancement activities such as therehabilitation and enhancement of tidalstreams, wetlands, and open waters; andproviding flexibility in designingcrossings of streams and otherwaterbodies so that movements of aquatic species can be maintained aftertaking into account the characteristics of the stream or waterbody and thesurrounding landscape (see generalcondition 2, aquatic life movements).These changes are discussed in thepreamble.The Corps is reissuing 48 existingNWPs, issuing two new NWPs,reissuing 28 existing general conditions,and issuing three new generalconditions. The Corps is also reissuingall of the NWP definitions, and addingthree new definitions. The Corps is alsosplitting one existing definition into twodefinitions as they relate to single andcomplete projects. The effective date forthese NWPs, general conditions, anddefinitions is March 19, 2012. TheseNWPs, general conditions, anddefinitions expire on March 18, 2017. Grandfather Provision for ExpiringNWPs In accordance with 33 CFR part330.6(b), activities authorized by thecurrent NWPs issued on March 12,2007, that have commenced or areunder contract to commence by March18, 2012, will have until March 18,2013, to complete the activity under theterms and conditions of the currentNWPs. Nationwide permit 21 activitiesthat were authorized by the 2007 NWP21 may be reauthorized withoutapplying the new limits imposed onNWP 21, provided the permitteesubmits a written request forreauthorization to the district engineer by February 1, 2013, and the districtengineer determines that the on-goingsurface coal mining activity will resultin minimal adverse effects on theaquatic environment and notifies thepermittee in writing that the activity isauthorized under the 2012 NWP 21. Clean Water Act Section 401 WaterQuality Certifications (WQC) andCoastal Zone Management Act (CZMA)Consistency Determinations The NWPs issued today will becomeeffective on March 19, 2012. This Federal Register notice begins the 60-day Clean Water Act Section 401 waterquality certification (WQC) and the 90-day Coastal Zone Management Act(CZMA) consistency determinationprocesses.After the 60-day period, the latestversion of any written position taken bya state, Indian tribe, or EPA on its WQCfor any of the NWPs will be accepted asthe state’s, Indian tribe’s, or EPA’s finalposition on those NWPs. If the state,Indian tribe, or EPA takes no action byApril 23, 2012, WQC will be consideredwaived for those NWPs.After the 90-day period, the latestversion of any written position taken bya state on its CZMA consistencydetermination for any of the NWPs will be accepted as the state’s final positionon those NWPs. If the state takes noaction by May 21, 2012, CZMAconcurrence will be presumed for thoseNWPs.While the states, Indian Tribes, andEPA complete their WQC processes andthe states complete their CZMAconsistency determination processes,the use of an NWP to authorize adischarge into waters of the UnitedStates is contingent upon obtainingindividual water quality certification ora case-specific WQC waiver. Likewise,the use of an NWP to authorize anactivity within a state’s coastal zone, oroutside a state’s coastal zone that willaffect land or water uses or natural VerDate Mar<15>2010 18:29 Feb 17, 2012Jkt 226001PO 00000Frm 00002Fmt 4701Sfmt 4703E:\FR\FM\21FEN2.SGM21FEN2   s  r  o   b  e  r   t  s  o  n   D   S   K   5   S   P   T   V   N   1   P   R   O   D  w   i   t   h   N   O   T   I   C   E   S  10185 Federal Register /Vol. 77, No. 34/Tuesday, February 21, 2012/Notices resources of that state’s coastal zone, iscontingent upon obtaining an individualCZMA consistency determination, or acase-specific presumption of CZMAconcurrence. We are taking thisapproach to reduce the hardships on theregulated public that would be caused by a substantial gap in NWP coverage if we were to wait until the WQC 60-dayperiod and the CZMA 90-day periodended before these NWPs would become effective. Discussion of Public CommentsI. Overview In response to the February 16, 2011, Federal Register notice, we receivedmore than 26,600 comment letters, of which approximately 26,300 were formletters pertaining to NWP 21. The non-form letters we received contained a fewthousand comments on variouscomponents of the NWPs and NWPProgram implementation. We reviewedand fully considered all commentsreceived in response to the proposedrule. General Comments Many commenters expressed supportfor the proposed permits. Somecommenters stated that the changes area step forward in improving consistencyin the NWP program. Many commentersendorsed the fundamentals of the NWPprogram, stating that the permits couldhave a beneficial impact to conductinginfrastructure and mining projectsimportant to the country. Some statedthat permitting delays and an increasein individual permits would resultwithout the NWP program, creating a backlog for the Corps and resourceagencies, while placing a burden onregulated industries. Anothercommenter urged the Corps to increaseflexibility to allow for projectmodifications when needed due tounanticipated challenges encounteredduring construction. Some commentersstated that further streamlining isneeded for increased efficiency andreducing administrative burden whilemaintaining a high level of environmental protection. Onecommenter said the Corps shouldmaximize rather than limit use of theNWP program in light of the currenteconomic situation, Federal budget cuts,and presidential efforts to streamlineregulations. Another commenter waspleased to see the Corps hold the lineagainst further restrictions on the NWPprogram. Many commenters emphasizedthat a timely, efficient, and consistentpermitting system is critical to thenation’s economy.The NWP Program provides flexibilityto readily authorize projectmodifications if the NWP activitycannot be constructed in accordancewith the approved plans, as long as anymodifications would still meet the termsand conditions of applicable NWP(s)and qualify for NWP authorization. Incases where the district engineer hasissued an NWP verification letter, thepermittee should contact the district assoon as he or she finds that the activitycannot be constructed in accordancewith the approved plans. The districtengineer will then determine if authorization by NWP is stillappropriate. If it is not, then thepermittee will be instructed on the mostappropriate mechanism for permittingthe modified activity.We believe the final permits issuedtoday maintain a proper balance between efficiently authorizingactivities with minimal individual andcumulative adverse environmentaleffects and protecting the aquaticenvironment. The NWPs provide astreamlined authorization process thatis consistent with the principles of Executive Order 13563, ImprovingRegulation and Regulatory Review.In contrast, many other commentersexpressed general opposition to theproposal, and said that the proposedrule weakens protection for waters andshould be withdrawn. Somecommenters said that the proposalthreatens to undermine the importantand statutorily mandated function of theNWPs and the Clean Water Act, and iscontrary to Congressional intent. Onecommenter expressed opposition to theissuance of the NWPs, stating that theywill result in an increase in the numberof activities that can be permitted anda reduction in the opportunity forpublic review and comment. Many of these commenters objected to the goalsof ‘‘streamlining’’ or ‘‘improvingregulatory efficiency,’’ and they saidthat the focus of the NWPs should be oncompliance with the Clean Water Act.Another commenter was concerned thatthe proposed NWPs do not support the‘‘no overall net loss’’ goal for wetlands,and that the Corps analysis predicts thatthe NWPs will result in a decrease of waters of the United States, includingwetlands.As discussed below, those NWPs thatauthorize discharges of dredged or fillmaterial into waters of the United Statescomply with the Clean Water Act andthe environmental criteria provided inits implementing regulations, the404(b)(1) Guidelines at 40 CFR part 230.The NWPs authorize minor activitiesthat result in minimal adverse effects onthe aquatic environment that wouldlikely generate little, if any, publiccomment if they were evaluated throughthe standard permit process with a fullpublic notice. Through the adoption of Section 404(e) of the Clean Water Act in1977, Congress approved the use of general permits as an important tool tokeep the Corps Regulatory Programmanageable from a resources andmanpower perspective, while protectingthe aquatic environment. The Corps firstadopted the concept of general permitsin its final rule published on July 25,1975 (see 40 FR 31321). The NWPprogram also continues to support thenational goal of ‘‘no overall net loss’’ forwetlands, and wetlands compensatorymitigation will be required whenappropriate and practicable to offsetlosses of wetland area and functions.The ‘‘no overall net loss’’ goal appliesonly to wetlands, and for other watersof the United States the goal is to avoidand minimize losses of those waters andto provide compensatory mitigation tooffset those losses if it is appropriateand practicable to do so. Streammitigation is becoming morecommonplace as the science andpractical applications become furtherdeveloped.Some commenters stated that theNWPs should require consideration of less damaging alternatives ordemonstrate that NWP activities resultin minimal adverse environmentaleffects. One commenter said that thereis not sufficient emphasis on avoidanceof impacts to waters of the UnitedStates. Another commenter objected tousing NWPs to expand existing projects,stating that it discourages avoidance andminimization.Those NWPs that authorize dischargesof dredged or fill material into waters of the United States comply with theprovisions of the 404(b)(1) Guidelinesthat address the issuance of generalpermits (see 40 CFR 230.7). A decisiondocument is prepared for each NWP toprovide information to show that theNWP will authorize only those activitiesthat result in minimal adverse effects onthe aquatic environment and otherpublic interest review factors.Supplemental decision documents areprepared at a regional level to supportthe decision on whether to add regionalconditions to an NWP or suspend orrevoke the use of that NWP in a specificwaterbody, category of waters, orgeographic area to ensure that onlyactivities that result in minimal adverseeffects on the aquatic environment andother public interest review factors areauthorized by the NWP. In response toa pre-construction notification or arequest to verify that an activity isauthorized by NWP, a district engineer VerDate Mar<15>2010 18:29 Feb 17, 2012Jkt 226001PO 00000Frm 00003Fmt 4701Sfmt 4703E:\FR\FM\21FEN2.SGM21FEN2   s  r  o   b  e  r   t  s  o  n   D   S   K   5   S   P   T   V   N   1   P   R   O   D  w   i   t   h   N   O   T   I   C   E   S  10186 Federal Register /Vol. 77, No. 34/Tuesday, February 21, 2012/Notices may add activity-specific conditions tothe NWP authorization or suspend orrevoke the NWP authorization if he orshe determines that the proposedactivity would result in more thanminimal adverse effects.Paragraph (a) of general condition 23,mitigation, requires permittees to avoidand minimize adverse effects to watersof the United States to the maximumextent practicable on the project site.The use of NWPs to authorize theexpansion of existing projects does notdiscourage avoidance and minimization because this general condition appliesequally to all NWP authorizations,including those that authorizeexpansion of existing projects. Theconsideration of practicable alternativesin accordance with 40 CFR 230.10(a)does not apply directly to discharges of dredged or fill material into waters of the United States authorized by generalpermits (see 40 CFR 230.7(b)(1)). Compliance With Section 404(e) of theClean Water Act Several commenters said that theproposed NWPs are contrary to theClean Water Act and violate Section404(e) of that Act. Many commentersasserted that the NWPs result in morethan minimal adverse effects on theaquatic environment, individually andcumulatively. These commenters statedthat the NWPs do not protect vitallyimportant functions of wetlands andstreams, and that the proposal does notsatisfy the Corps legal obligation to limitgeneral permits to activities that causeminimal adverse impacts, individuallyand cumulatively. They also said theCorps lacks the data to show that theeffects of the authorized activities are infact minimal. Some commentersexpressed concern regarding thepotential overuse of these permitswithout the inclusion of acreage, linearfeet, watershed or regional limitations.Another commenter said that the NWPsfail to describe similarly coveredactivities in precise terms.The Corps disagrees with thesecomments. The NWPs comply with theClean Water Act and the environmentalcriteria provided in its implementingregulations, the 404(b)(1) Guidelines at40 CFR part 230. Section 404(e) of theClean Water Act states that the Chief of Engineers may issue, after publishing anotice and providing an opportunity apublic hearing, general permits on anationwide basis for any category of activities involving discharges of dredged or fill material into waters of the United States, if it is determinedthat the activities in each category aresimilar in nature and result in minimalindividual and cumulative adverseenvironmental effects. The issuance of the NWPs is consistent with theserequirements and therefore complieswith the intent of the Clean Water Act.As discussed above, national decisiondocuments and supplemental decisiondocuments are prepared to demonstratethat an NWP will authorize only thoseactivities that have minimal individualand cumulative adverse effects on theaquatic environment and other publicinterest review factors. The decisiondocuments use available data and otherinformation to support theirconclusions.Where appropriate and necessary,certain NWPs have acreage, linear foot,or cubic yard limits, or combinations of those limits, to ensure that authorizedactivities result in minimal individualand cumulative adverse effects on theaquatic environment. Specifically,NWPs have acreage limitations, NWPshave linear foot limitations, and NWPshave cubic yard limitations. Many otherNWPs have qualitative limitations in theform of specific activities or situationsthat are not authorized, or for which aPCN is required to allow the Corps toensure on a case-by-case basis that theadverse effects on the aquaticenvironment of the project are trulyminimal. A few NWPs have no explicitlimits, but this is limited to those thatauthorize activities that provide benefitsto the aquatic environment (e.g., NWP27, which authorizes aquatic habitatrestoration, establishment, andenhancement activities, and NWP 41,which authorizes activities forreshaping drainage ditches to improvewater quality), or those for which thenature of the authorized activityinherently ensures that effects will beminimal (e.g., NWP 10, whichauthorizes non-commercial, single boat,mooring buoys). Division engineers mayimpose regional conditions on theNWPs to add acreage, linear foot, orcubic yard limits, or reduce those limitswhen the NWPs have specified limits intheir terms and conditions, to ensurethose NWPs authorize only thoseactivities that result in minimal adverseeffects on the aquatic environment.The NWPs comply with therequirement in Section 404(e) of theClean Water Act to authorize categoriesof activities that are similar in nature.Each NWP authorizes a specific categoryof activities, which may be broadlydefined for some NWPs to keep theNWP program manageable. The Actdoes not require that activitiesauthorized by an NWP be identical, onlythat they be similar in nature. Thepermits meet this requirement and areconsistent with the Corps’ longstandingpractice regarding the appropriate levelof detail with which to specify whatconstitutes activities that are similar innature. Compliance With the Section 404(b)(1)Guidelines Several commenters said that theNWPs do not comply with the 404(b)(1)Guidelines. One commenter said thatthe Corps has no factual basis toconclude that significant degradation of waters of the United States has notoccurred, which is required to be incompliance with the Guidelines. Thiscommenter recommended withdrawingthe NWPs or replacing them with stateprogram general permits. Onecommenter stated that the NWPs do notcomply with the 404(b)(1) Guidelines because they authorize discharges intospecial aquatic sites.When we issue the NWPs, we fullycomply with the requirements of the404(b)(1) Guidelines at 40 CFR 230.7,which govern the issuance of generalpermits under Section 404 of the CleanWater Act. For each NWP thatauthorizes discharges of dredged or fillmaterial into waters of the UnitedStates, the decision document containsa 404(b)(1) Guidelines analysis. Section230.7(b) of the 404(b)(1) Guidelinesrequires a ‘‘written evaluation of thepotential individual and cumulativeimpacts of the categories of activities to be regulated under the general permit.’’Since the required evaluation must becompleted before the NWP is issued, theanalysis is predictive in nature. Theestimates of potential individual andcumulative impacts, as well as theprojected compensatory mitigation thatwill be required, are based on the bestavailable data from the Corps districtoffices, including the past use of NWPs.In our decision documents, we alsoused readily available national data onthe status of wetlands and other aquatichabitats in the United States, and theforeseeable impacts of the NWPs onthose waters.The process for issuing stateprogrammatic general permits is similarto the process for issuing NWPs,including the use of information tosupport decisions. The 404(b)(1)Guidelines analysis for stateprogrammatic general permits is alsopredictive. Given those similarities,compliance with the 404(b)(1)Guidelines is not different for stateprogrammatic general permits versusNWPs.Despite the fact that many NWPsauthorize discharges of dredged or fillmaterial into special aquatic sites, theyare still in compliance with the404(b)(1) Guidelines. Section 230.7 of the 404(b)(1) Guidelines does not VerDate Mar<15>2010 18:29 Feb 17, 2012Jkt 226001PO 00000Frm 00004Fmt 4701Sfmt 4703E:\FR\FM\21FEN2.SGM21FEN2   s  r  o   b  e  r   t  s  o  n   D   S   K   5   S   P   T   V   N   1   P   R   O   D  w   i   t   h   N   O   T   I   C   E   S  10187 Federal Register /Vol. 77, No. 34/Tuesday, February 21, 2012/Notices prohibit the use of NWPs to authorizedischarges of dredged or fill materialinto special aquatic sites. Many NWPscontain additional provisions to protectspecial aquatic sites. For example,several NWPs specifically require pre-construction notification for proposeddischarges of dredged or fill materialinto special aquatic sites (e.g., NWP 13for bank stabilization activities, NWP 14for linear transportation projects, NWP18 for minor discharges). As anotherexample, NWP 19 for minor dredgingactivities, does not authorize dredgingin coral reefs or dredging activities thatcause siltation that degrades coral reefs.General condition 22, designated criticalresource waters, applies theprohibitions in paragraph (a) and thenotification requirement in paragraph(b) to wetlands (a special aquatic site)adjacent to critical resource waters. Compliance With the NationalEnvironmental Policy Act Three commenters stated that theNWPs do not satisfy the requirements of the National Environmental Policy Act(NEPA), as they do not adequatelyconsider indirect and cumulative effectson global warming. One commenter saidthat degradation in air quality from burning coal from mining projects must be addressed in an environmentalimpact statement, and that the Corpshas to address the implications of climate change on aquatic ecosystems.Another commenter stated that thescientific consensus on the impacts of climate change has to be considered inthe renewal of the NWPs. Onecommenter said the NWPs should takeinto account ongoing federal efforts toaddress the effects of climate changethrough federal programs. These federalprograms address mitigation of climatechange (e.g., through reduction of greenhouse gas emissions) andadaptation to climate change (e.g., byadjustments made to reducevulnerability resulting from changingclimate).Although the Council onEnvironmental Quality has madeavailable draft guidance on theconsideration of the effects of climatechange and greenhouse gas emissions,and sought public comment on thatdraft guidance, they have not issued anyfinal guidance specifically on how toconsider, in NEPA documents, theindirect and cumulative effects Federalagency actions have on climate change.In the Council on EnvironmentalQuality’s October 2011 Progress Reportof the Interagency Climate ChangeAdaptation Task Force entitled ‘‘FederalActions for a Climate Resilient Nation’’adaptation is defined as ‘‘adjustment innatural or human systems to a new orchanging environment that exploits beneficial opportunities or moderatesnegative effects.’’A major cause of climate change isemissions of greenhouse gases.Activities authorized by NWPs havelittle direct, indirect, or cumulativeeffects on climate change and theemission of greenhouse gases. Theremay be brief emissions of greenhousegases during the construction of activities authorized by NWP,specifically discharges of dredged or fillmaterial into waters of the United Statesor structures or work in navigablewaters of the United States. Anygreenhouse gas emissions that occurother than as a result of the discharge of dredged or fill materials are outside of the Corps NEPA scope of analysis because the Corps does not have thelegal authority to control thoseemissions. The degradation of airquality caused by burning coal is not theresult of a discharge of dredged or fillmaterial and therefore is outside theCorps legal authority. The issuance of aCorps permit is designed to ensure thatany discharges of dredged or fillmaterial into waters of the United Statesassociated with such mining complywith the Clean Water Act. A Corpspermit does not authorize coal miningper se, and therefore the effects of coalmining that do not result from adischarge of dredge or fill material towaters of the United States generally are beyond the Corps NEPA scope of analysis.The effects of climate change onaquatic ecosystems are a much broaderissue than the effects on the aquaticenvironment caused by activitiesauthorized by NWPs. The effects of climate change on hydrology andextreme events are difficult to project.The effects will vary by location and thesensitivity of resources to changes inhydrology and extreme events. Thetimeframe used to project hydrologicchanges will also affect the evaluation.For activities with minimal adverseeffects on the aquatic environment thatare eligible for authorization by theNWPs, the Corps believes that anynecessary adaptation to climate changeis appropriately addressed through landuse planning and zoning, which is theprimary responsibility of state, tribal,and local governments. Activitiesauthorized by NWPs may be part of state, tribal, or local adaptation efforts tomitigate the effects of climate change.On October 1, 2011, the Corps issuedupdated guidance on sea level changeconsiderations for Civil Works Program(Engineer Circular 1165–2–211). Thecurrent Engineer Circular applies toCorps Civil Works activities, but not tothe Regulatory Program. As stated onpage 25 of its ‘‘Climate ChangeAdaptation Plan and Report 2011’’(available at: http://  adaptationpolicy.cfm ),the Corpsexpects to make larger changes in thenext update of the Engineer Circular,‘‘and the regulatory program will beadded following appropriateconsultation.’’ Compliance With the EndangeredSpecies Act One commenter acknowledged theCorps 2007 efforts to pursueprogrammatic consultation for the NWPprogram with the U.S. Fish and WildlifeService and the National MarineFisheries Service to ensure compliancewith the Endangered Species Act (ESA),stating that failure to completeconsultation violates the ESA, as well asSection 404(e) of the Clean Water Act.Two commenters stated that the Corpshas a requirement to complete theseconsultations prior to the issuance of the NWPs.We have reinitiated programmaticSection 7 Endangered Species Actconsultation for the NWPs. If thisconsultation is not completed prior tothe effective date of these NWPs, districtengineers will consult, as necessary ona case-by-case basis with the U.S. Fishand Wildlife Service and NationalMarine Fisheries Service in accordancewith general condition 18, endangeredspecies. Division engineers may alsoimpose regional conditions on any of the NWPs to facilitate compliance withthe requirements of the EndangeredSpecies Act. Compliance With Section 304(d) of theNational Marine Sanctuaries Act One commenter stated that theproposed NWPs must comply withSection 304(d) of the National MarineSanctuaries Act (NMSA). Section304(d)(1))(A) of the NMSA states that‘‘Federal agency actions internal orexternal to a national marine sanctuary,including private activities authorized by licenses, leases, or permits, that arelikely to destroy, cause the loss of, orinjure any sanctuary resource aresubject to consultation with theSecretary.’’ The regulations forimplementing section 304(d) are foundat 15 CFR 922.187, and thoseregulations state that the Federal agencyconsultation should be conducted withthe Director of the marine sanctuary.The consultation may be conductedwith Endangered Species Act section 7consultation. VerDate Mar<15>2010 18:29 Feb 17, 2012Jkt 226001PO 00000Frm 00005Fmt 4701Sfmt 4703E:\FR\FM\21FEN2.SGM21FEN2   s  r  o   b  e  r   t  s  o  n   D   S   K   5   S   P   T   V   N   1   P   R   O   D  w   i   t   h   N   O   T   I   C   E   S
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