[Federal Register Volume 62, Number 228 (Wednesday, November 26, 1997)]
[Notices]
[Pages 63224-63225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30278]



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Part III





Department of Defense





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Corps of Engineers



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Public Notice Concerning Changes to Nationwide Permit 26; Notice

  Federal Register / Vol. 62, No. 228 / Wednesday, November 26, 1997 / 
Notices  

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DEPARTMENT OF DEFENSE

Corps of Engineers, Department of the Army


Public Notice Concerning Changes to Nationwide Permit 26

AGENCY: U.S. Army Corps of Engineers, DoD.

ACTION: Notice for public comment.

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SUMMARY: In response to a court order issued on October 27, 1997, the 
Corps is requesting comments on three changes to Nationwide Permit 
(NWP) 26, which were published in the Federal Register on Friday, 
December 13, 1996 (61 FR 65874-65922). The Corps is requesting comments 
on the following changes to NWP 26: (1) The expiration of NWP 26 on 
December 13, 1998; (2) the prohibition against filling or excavating 
more than 500 linear feet of stream bed under NWP 26; and (3) the 
prohibition against using other NWPs with NWP 26 to authorize the loss 
of more than 3 acres of waters of the United States. The Corps is not 
requesting comments on any other issues related to the recent 
modification of NWP 26 or any other NWP. Within 90 days of the close of 
the comment period, the Corps will publish its final determination on 
these issues in the Federal Register.

DATES: Comments must be received by February 24, 1998.

ADDRESSES: HQUSACE, CECW-OR, Washington, D.C. 20314-1000.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson or Mr. Sam Collinson, 
CECW-OR, at (202) 761-0199.

SUPPLEMENTARY INFORMATION:

Background

    In the June 17, 1996, Federal Register, the Corps published a 
notice requesting comments on the issuance, reissuance, and 
modification of the NWPs and announced a public hearing to invite the 
public to provide comments on the NWPs. The Corps proposed changes to 
several NWPs, including several changes to NWP 26. In the June 17, 
1996, Federal Register Notice, the Corps did not specifically request 
comments on limiting filling or excavation of stream beds to 500 linear 
feet under NWP 26, restricting the use of other NWPs with NWP 26 to 
limit impacts to waters of the United States to 3 acres for a single 
and complete project, or issuing NWP 26 for a period shorter than 5 
years, which is the maximum legal limit for any NWP.
    In response to the June 17, 1996, Federal Register Notice, the 
Corps received over 500 comments concerning NWP 26. Based on comments 
from the public and other agencies, as well as Corps internal review of 
the implementation of NWP 26 over the past five years, several changes 
were made to NWP 26 to ensure that NWP would comply with a number of 
legal requirements. These changes were published in the Federal 
Register on December 13, 1996 (61 FR 65874-65922) and became effective 
on February 11, 1997. On March 6, 1997, a lawsuit was filed by the 
National Association of Home Builders, objecting to three of these 
changes. These three changes are: (1) The expiration of NWP 26 on 
December 13, 1998; (2) the prohibition against filling or excavating 
more than 500 linear feet of stream bed under NWP 26; and (3) the 
prohibition against using other NWPs with NWP 26 to authorize the loss 
of more than 3 acres of waters of the United States.
    The Corps believes that the changes we made to NWP 26 were 
promulgated in full compliance with all legal requirements, and were 
necessary to ensure compliance with the requirements of the Clean Water 
Act. However, in view of the public interest in the three changes 
explained below and in order to avoid the time and expense of 
litigation, the corps volunteered to seek comments on the three changes 
cited above. Accordingly, on October 27, 1997, a court order was issued 
remanding the action to the Corps to request public comments on the 
changes to NWP 26 cited in the previous paragraph.
    The public is invited to provide comments on these three changes to 
NWP 26 within 90 days of the date of this notice. The Corps is not 
requesting comments on any other issues related to the recent 
modification of NWP 26. Within 90 days of the close of the comment 
period, the Corps will publish its decision on these issues in the 
Federal Register. In the interim, all the terms and conditions of NWP 
26 as published in the December 13, 1996, Federal Register, including 
the three changes that are the subject of this notice, will remain in 
effect pending a Corps decision. The following is a brief discussion of 
the three changes to NWP 26. For more details, see the Preamble to the 
December 13, 1996, Federal Register Notice, (61 FR 65874-65922).

(1) Expiration of NWP 26 on December 13, 1998

    As a result of an internal evaluation of NWP 26 and consideration 
of all comments received in response to the June 17, 1996, Federal 
Register Notice, the Corps determined that modification of NWP 26 was 
necessary and that it should be replaced with activity-specific NWPs to 
ensure that no more than minimal impacts to waters of the United 
States, both individually and cumulatively, are authorized. Knowing 
that it will take up to two years to issue replacement NWPs, the Corps 
reissued NWP 26 for a two year period, which will expire on December 
13, 1998. Section 404(e) of the Clean Water Act states that no general 
permit can be issued for a period of more than five years, thereby, 
allowing the Corps to issue an NWP for a period of less than five 
years. This two year period will allow the Corps to collect detailed 
information on the types of activities being authorized by NWP 26, the 
nature and extent of wetlands and other waters being affected by the 
NWPs, and potential effects of the NWPs on the Nation's federally 
listed threatened and endangered species.
    In the December 13, 1996, Federal Register Notice, the Corps 
requested comments from the public regarding specific categories of 
activities that should be considered for new NWPs. Prior to the 
expiration of NWP 26 on December 13, 1998, the Corps will develop, 
propose, and issue activity-specific replacement NWPs, with appropriate 
limitations, to provide consistency with the ``minimal adverse 
effects'' mandate of section 404(e). The public will have an 
opportunity to comment formally on the proposed replacement permits 
once they are officially proposed in the Federal Register. We 
anticipate that the activity-specific replacement NWPs will be 
published for public review and comment in approximately March 1998.

(2) Prohibition Against Filling More Than 500 Linear Feet of Stream Bed

    In response to the June 17, 1996, Federal Register Notice, a few 
commenters recommended using linear footage to quantify stream bed 
impacts for the purpose of NWP 26, instead of acreage. They believed 
that using acreage to quantify impacts to stream beds is inappropriate, 
because it can allow losses of long segments of streams. For example, 
filling a 5-foot wide stream bed over a distance of \1/2\ mile will 
result in a loss of 0.30 acre of stream bed. If acreage were used to 
quantify the stream bed impacts, notification to the Corps would not be 
required and the work could result in more than minimal impacts if the 
stream bed provides important functions, such as spawning habitat for 
fish. Limitations of 200 to 500 linear feet of stream bed impacts were 
recommended by commenters.

[[Page 63225]]

    We concurred with these commenters and placed a prohibition in NWP 
26 against activities directly affecting (i.e., filling or excavating) 
more than 500 linear feet of stream bed. Therefore, filling or 
excavating more than 500 linear feet of stream bed was not authorized 
under the revisions to NWP 26. The threshold of 500 linear feet was 
chosen to maintain consistency within the NWP Program, because NWPs 12 
and 13 have pre-construction notification thresholds of 500 linear 
feet. We believe that this additional limitation enhances the Corps 
ability to ensure that projects with more than minimal adverse impacts 
will not be authorized under NWP 26.

(3) Use of NWP 26 With Other NWPs Cannot Exceed 3 Acres of Impact

    Many commenters recommended that the use of multiple NWPs for a 
single and complete project (a practice also referred to as 
``stacking'') should be eliminated or restricted because it would allow 
the possibility of more than minimal adverse effects to result under 
the NWP Program.
    Under certain circumstances, NWPs can be used in combination and 
result in only minimal individual and cumulative adverse environmental 
effects. NWP regulations provide for multiple use of NWPs, as long as 
each NWP is used only once for a single and complete project and the 
combined adverse effects are minimal. However, the use of more than one 
NWP for a particular project could potentially result in more than 
minimal adverse effects. Many NWPs are usually ``stand alone'' project 
authorizations. Generally, only seven of the 37 NWPs are used more than 
occasionally with certain other NWPs for authorizing projects. These 
seven NWPs are 3, 12, 13, 18, 19, 26, and 33. We believe that of those 
seven NWPs, those with the potential to have more than minimal impacts 
when used with certain other NWPs, are NWPs 18 and 26 in combination 
with each other and with NWPs 14 and 29. To ensure that multiple use of 
NWPs does not result in more than minimal adverse effects, the Corps 
has added a General Condition to the NWPs and restricted certain 
combinations of nationwide permits. General Condition 15 requires 
permittees to submit a pre-construction notification to the District 
Engineer when any NWP 12 through 40 is combined with any other NWP 12 
through 40, as part of a single and complete project. NWP 14 was 
modified so that it cannot be combined with NWP 18 or NWP 26 for the 
purpose of exceeding the limitations of any of these three NWPs. For 
example, NWPs 14 and 26 cannot be combined to authorize the loss of 
3\1/3\ acres of waters of the United States. Furthermore, NWP 18 cannot 
be combined with NWP 26 to increase the thresholds or the limitations 
of NWP 26. NWP 29 is already conditioned so that it cannot be used with 
NWP 14, NWP 18, or NWP 26. We have also limited the amount of 
authorized impacts when combining any NWP with NWP 29 or NWP 26. If 
another NWP is used with NWP 29 to authorize a single and complete 
project, the total acreage of impacts to water of the United States 
cannot exceed 0.5 acres. Whenever any other NWP is used in conjunction 
with NWP 26, the total acreage of impacts to waters of the United 
States, for all NWPs combined, cannot exceed 3 acres. Likewise, the 
Corps is only requesting comments on the prohibition against combining 
other NWPs with NWP 26 to exceed the 3-acre limitation of NWP 26.

    Dated: November 13, 1997.
Charles M. Hess,
Chief, Operations, Construction, and Readiness Division, Directorate of 
Civil Works.
[FR Doc. 97-30278 Filed 11-25-97; 8:45 am]
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