[Federal Register Volume 63, Number 140 (Wednesday, July 22, 1998)]
[Notices]
[Pages 39276-39280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19495]



[[Page 39276]]

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers


Public Notice Concerning Changes to Nationwide Permit 26

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

ACTION: Final notification.

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SUMMARY: In the November 26, 1997, Federal Register, the U.S. Army 
Corps of Engineers requested comments on three changes that were made 
to nationwide permit (NWP) 26 and published in the December 13, 1996, 
Federal Register. This was done in response to a court order issued on 
October 27, 1997. The Corps requested comments on the following three 
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 of Engineers is giving final notice that NWP 26 is being 
retained as published in the Federal Register on Friday, December 13, 
1996 (61 FR 65874-65922) with one exception. The Corps has proposed to 
extend the expiration date of NWP 26 to March 28, 1998 (63 FR 36040-
36078).

EFFECTIVE DATE: July 22, 1998.

FOR FURTHER INFORMATION CONTACT: Write to the Chief of Engineers, U.S. 
Army Corps of Engineers, ATTN: CECW-OR, Washington, D.C. 20314-1000, 
or, contact Mr. Sam Collinson, Regulatory Branch, Office of the Chief 
of Engineers at (202) 761-0199.

SUPPLEMENTARY INFORMATION:

Background

    In the June 17, 1996 (61 FR 30780), Federal Register, the U.S. Army 
Corps of Engineers published a notice requesting comments on the 
issuance, reissuance and modification of the Corps of Engineers 
nationwide permits (NWPs) and announced a public hearing to invite the 
public to provide comments on the NWPs. In that notice, the Corps 
proposed changes to several NWPs including several changes to NWP 26. 
However, it did not specifically request comments on limiting the 
filling or excavation of stream beds to no more than 500 linear feet, 
restricting the use of other NWPs with NWP 26 to limit adverse effects 
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 legal maximum limit for any NWP in accordance with Section 404(e) 
of the Clean Water Act.
    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 the Corps internal 
review of the implementation of NWP 26 over the past five years, 
several changes were made to NWP 26 to ensure that it would comply with 
the legal requirements of the Clean Water Act. The 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 the three changes noted above.
    The Corps believes that the changes made to NWP 26 were promulgated 
in full compliance with all legal requirements of the Clean Water Act. 
However, in view of the public interest in the changes and to avoid the 
time and expense of litigation, the Corps volunteered to seek comments 
on the three changes. Accordingly, on October 27, 1997, a court order 
was issued remanding the action to the Corps to request public comments 
on the three changes to NWP 26 described above.
    The November 26, 1997 (62 FR 63224), Federal Register notice was 
published and comments were accepted until February 26, 1998.

Summary of Comments

    Over 3,000 comments were received. Approximately 2,700 were in 
favor of the three changes and approximately 300 were against them. 
Approximately two thirds of the commenters specifically addressed the 
three changes to indicate their approval or disapproval while others 
simply expressed favor or disfavor towards NWP 26 in general. Of those 
specifically addressing each change, all, except a very few (less than 
10) indicated that they either favored or disfavored all three of the 
changes, (i.e., very few had split opinions about the changes).
    Of those in favor of the changes, 190 represented environmental, 
civic, lake or watershed districts or other organizations or state 
agencies. Many individual commenters stated that they were members of 
the National Wildlife Federation or of the Ohio Bass Federation. Of 
those opposed to the changes, approximately 244 represented groups that 
are members of the National Association of Home Builders and other 
building, design, realty, or mining organizations.

Response to Specific Comments

I. General

A. Compliance With Section 404(e) of the Clean Water Act (Section 
404(e))

    Most of the commenters opposed to the changes stated that the three 
changes are contrary to Section 404(e). They believe Section 404(e) 
indicates that it was the intent of Congress for the Corps to develop 
and maintain a streamlined regulatory process for projects that have 
minimal adverse effects. However, many of the commenters that support 
the changes stated that, in its earlier form, NWP 26 was contrary to 
CWA 404(e). Section 404(e), in its entirety, reads:
    (e)(1) In carrying out his functions relating to the discharge of 
dredged or fill material under this section, the Secretary [of the 
Army] may, after notice and opportunity for public hearing, issue 
general permits on a State, regional, or nationwide basis for any 
category of activities involving discharges of dredged or fill material 
if the Secretary determines that the activities in such category are 
similar in nature, will cause only minimal adverse environmental 
effects when performed separately, and will have only minimal 
cumulative adverse effect on the environment. Any general permit issued 
under this subsection shall (A) be based on the guidance described in 
subsection (b)(1) of this section, and (B) set forth the requirements 
and standards which shall apply to any activity authorized by such 
general permit.
    (2) No general permit issued under this subsection shall be for a 
period of more than five years after the date of its issuance and such 
general permit may be revoked or modified by the Secretary if, after 
opportunity for public hearing, the Secretary determines that the 
activities authorized by such general permit have an adverse impact on 
the environment or such activities are more appropriately authorized by 
individual permits.
    While the Corps agrees that a streamlined process is essential for 
both the public and the agency, Section 404(e) does not guarantee a 
particular form of streamlined process. Section 404(e) sets forth two 
important terms: ``minimal adverse effects'' and ``similar in nature'', 
but does not define either. During the past twenty years there have 
been many changes that affect how we interpret them. There have been 
advancements in our understanding of the functions of aquatic 
resources, including wetlands, and changes in the types of projects 
that are most common.

[[Page 39277]]

Neither wetland science nor wetland regulation are static disciplines.
    NWP 26 was first developed in 1977, when the Corps Section 404 
jurisdiction was extended from traditional navigable waters to all 
waters of the U.S. At that time, the blanket authorization of work 
above headwaters and in isolated waters, with discretionary authority 
to revoke or modify specific activities, was a practical means of 
managing the suddenly increased workload. Later, in 1984, when it had 
become apparent that very large tracts of waters of the U.S. could be 
impacted, NWP 26 was capped at 10 acres. Since that time, it has become 
evident that headwaters and isolated waters of the U.S., including 
wetlands, have greater values and functions in support of the overall 
aquatic ecosystem than previously recognized. This was addressed by the 
National Academy of Sciences in their 1995 report: Wetlands: 
Characteristics and Boundaries. It has also become apparent that, in 
some watersheds, urban developments that individually impact ten or 
less acres of wetlands, can cumulatively have adverse effects on water 
storage and water purification capacity. Given these changes in our 
knowledge base and in the types of projects that NWP 26 is being used 
for, the Corps believes that reducing the NWP 26 cap to 3 acres is 
warranted if we are to assure that only minimal adverse effects on the 
aquatic environment are resulting from its application.
    The term ``similar in nature'' has been the subject of much 
discussion and controversy. Some, particularly those opposed to changes 
to NWP 26, believe it means activities that are similar to each other 
by virtue of the fact that they are fill activities and they all have 
minimal adverse effects. Others, including many of those who support 
the changes made to NWP 26, believe it has a much narrower meaning: 
projects for the same purpose conducted in a similar manner such as 
fill for a road, fill for an individual residence, fill in support of 
cranberry operations, etc. In addition, it has been posed that similar 
may refer to the size of the area impacted, e.g. fill up to \1/3\ acre, 
fill up to 2 acres, etc., independent of purpose.
    Some of the commenters opposed to the changes suggested that since 
the 500-foot and 3-acre limitations have been placed on NWP 26 to 
assure that it will not result in more than minimal adverse effects, it 
should no longer be necessary to phase it out altogether.
    The Corps sees several advantages in moving to a new set of 
activity-specific NWPs. It will remove the question as to whether an 
NWP is authorizing activities that are similar in nature. It will allow 
us to tailor special conditions to similar types of activities, rather 
than ``one size fits all''. It will also facilitate regionalization of 
the NWPs to best protect the valuable resources found in each district 
while maintaining the Corps ability to expeditiously authorize 
activities with minimal effects on the aquatic environment. (For 
additional discussion of ``minimal adverse effect'' and ``similar in 
nature'', see the preamble to the NWPs published in the Federal 
Register on December 13, 1996.)

B. Workload

    Almost all the commenters who were opposed to the changes expressed 
concern about how the Corps workload would be affected and, therefore, 
the Corps ability to respond to applicants in a reasonable amount of 
time. In December, 1996, the Corps estimated that the changes to NWP 26 
(that became effective February 11, 1997) would result in approximately 
7,500 additional pre-construction notifications (PCNs) each year. 
However, data indicated that most would be for 1 acre or less of fill 
and therefore would be Corps-only PCNs. In addition, it was estimated 
that there would be a 10% increase in the annual number of individual 
permits (IPs). It is not possible to look at data since February, 1997, 
and determine if those estimates were accurate because the change in 
the total number of PCNs and of IPs has been influenced by several 
factors, not known in December, 1996, rather than just the changes made 
to NWP 26. For example: The ``Tulloch rule'' (regulation of discharges 
incidental to excavation) was suspended for approximately 6 months 
during Fiscal Year (FY) 1997; several districts implemented new 
regional general permits during the same period; some applicants 
deferred work in order to understand the new NWPs; etc. We do know that 
the total number of IPs was lower, rather than higher, in FY 1997 
(after the changes) than in FY 1996 (before the changes):

FY 1996: 5,040 IPs, 38,476 written NWP authorizations
FY 1997: 4,697 IPs 39,883 written NWP authorizations

C. Complex Regulatory System

    Commenters opposed to the changes stated that these changes are 
part of a trend towards more complicated regulations. The Corps 
recognizes that this is occurring. It is a result of continuing work to 
fine-tune the NWPs so that, frequently-occurring, minimal adverse 
effect activities are expeditiously permitted, while activities that 
may have more than minimal adverse effects are more carefully 
scrutinized. It is also a result of applying permit terms and 
conditions that are specific to similar activities rather than ``one 
size fits all''.

D. Was This a Good Faith Notice?

    Some of the commenters opposed to the changes stated that they 
believe the Corps requested comments on these three changes merely to 
avoid litigation and had no intention of seriously considering them. 
The Corps believes that the changes were promulgated in compliance with 
all legal requirements and, after review of the comments received, has 
concluded that a retraction of the changes is not warranted. However, 
all the comments received were carefully considered and we have 
obtained additional valuable information about the public's concerns 
and highlighted areas where we need to be more clear or provide more 
detail about the intent of NWPs and/or the special conditions that 
apply to them. This will be reflected in the proposed NWPs we are 
developing to go into effect when NWP 26 expires. The proposed NWPs 
were described in the July 1, 1998, FR (63 Federal Register 36040-
36078).

E. The Corps Does Not Have a Good Tracking System

    Many of the commenters who support the changes stated that the true 
impacts of NWP 26 cannot be ascertained because the Corps does not have 
an effective way to track them. The Corps has collected and reviewed 
data for all permit authorizations for many years to assist in making 
program-wide determinations and NWP decisions in particular. Data 
gathering has become progressively more sophisticated as additional 
districts become automated. Since May, 1997, we have collected 
additional data for all NWPs, and specifically for NWP 26, to ensure 
that we have a good understanding of where it is being used, how often, 
and for what types of projects.

F. NWP 26 Allows Fill for Development Without Regulatory Review, 
Analysis of Alternatives, Public Notification or Opportunity for Public 
Comment

    It is the purpose of the nationwide permit program to streamline 
review of, and decisions for, proposed projects. To that end, 
alternatives analysis, public notification and opportunity for public 
comment take place at the time the NWPs are issued, i.e., usually every 
five years. Activities authorized by NWP 26 requiring a PCN are 
reviewed by the Corps and evaluated for potential impacts to 
particularly sensitive

[[Page 39278]]

resources, on-site avoidance and minimization of impacts, and 
compliance with general and special conditions. When the Corps receives 
a PCN, it can take discretionary authority to require an individual 
permit, if the Corps believes a more detailed evaluation is required. 
In practice, even those activities not requiring a PCN are often 
reviewed in the same manner as those that require it. In some cases, 
the applicant requests a review; in others, the initial proposed 
project requires a PCN but is subsequently reduced in scope. Moreover, 
the Corps believes that NWPs with regional conditions protect the 
aquatic environment by motivating applicants to reduce impacts to the 
extent practicable in order to receive a quick decision.

II. Expiration of NWP 26 on December 13, 1998

A. Why Set an Expiration Date?

    Many commenters opposed to the changes asked why it is necessary to 
set an expiration date for NWP 26. They recommended that it be left in 
effect until the replacement NWPs are ready. They doubted the Corps 
ability to have new NWPs ready by December 13, 1998, and wanted to 
avoid a period of time with neither in effect. The Corps believes it is 
important to set a date not only as a goal for the Corps to conclude 
the process, but for applicants' ability to make plans. However, the 
coordination process to develop new and modified NWPs has taken longer 
than expected resulting in delay in the date of publication of the 
proposed new and modified nationwide permits. The Corps wants to ensure 
that there is adequate time to effectively involve other agencies and 
the public in a new regional conditioning process. Therefore, 
concurrent with the Corps July 1, 1998, publication in the Federal 
Register, the Corps proposed extension of the expiration date of NWP 26 
to March 28, 1999. Comments on this matter will be received until July 
31, 1998, after which the Corps will make a decision on whether to 
extend the expiration date for NWP 26.

B. Decreased Flexibility and Predictability; Loss of ``Catch-all'' NWP

    Many commenters opposed to the changes believe that they will 
result in decreased flexibility and predictability. In the short term, 
there may be reduced predictability as applicants and agencies 
transition to a new set of NWPs. It is the Corps goal to increase 
consistency and predictability, as well as prioritizing efforts based 
on aquatic functions and values, by removing the artificial distinction 
that currently exists between headwaters and isolated waters versus 
other waters of the United States. There can be a very different level 
of review for similar projects depending on which type of water they 
are located in. This change will provide for a similar process for 
similar activities regardless of whether they are located above or 
below the headwaters point.
    Some commenters referred to loss of ``permit certainty''. It should 
be noted that existence of an NWP is not a guarantee that a permit will 
be issued. The project will be evaluated and if appropriate conditions 
are met, authorization can be granted in a streamlined manner. The 
Corps believes that most projects that now qualify for an NWP will 
continue to qualify for an NWP after NWP 26 expires, although the 
specific form of the NWP may change and there may be additional 
conditions related to the specific type of activity.
    The Corps has gathered information from all its district offices 
about the types of projects that NWP 26 is used to authorize and most 
will be addressed by the new NWPs. Project types that occur frequently 
only in a given region, and have only minimal adverse effects, may be 
more appropriately addressed by regional general permits issued by 
individual Corps districts.

C. Burden on Transportation Projects

    Several commenters from transportation agencies and from 
consultants who work with them stated that the 2-year expiration of NWP 
26 would be particularly burdensome for transportation projects. They 
stated that transportation agencies often work on a 5-year, or longer, 
plan and need to know what the regulatory framework will be over that 
length of time. They also stated they would have increased costs 
because they would not be able to review the new NWPs in time to design 
their projects to meet new conditions and also meet advertisement and 
contracting schedules. The NWP regulations at 33 CFR 330.6(b) state 
that ``activities which have commenced (i.e., are under construction) 
or are under contract to commence in reliance upon an NWP will remain 
authorized provided the activity is completed within twelve months of 
the date of an NWP's expiration, modification or revocation''. For most 
projects, a year is sufficient time for project completion, however, if 
it is determined that particular transportation projects need a longer 
transition period, this can be addressed by Corps Districts on a case-
by-case basis through expedited review as individual permits. However, 
as noted above, we believe that, in most cases, projects that now 
qualify for NWP 26, will continue to qualify for an NWP after NWP 26 
expires, although the specific form and conditions of the NWP may 
change.

D. Regulation of Isolated Wetlands

    Several of the commenters who were concerned about the expiration 
of NWP 26 referred to a December 23, 1997, decision of the U.S. Court 
of Appeals for the Fourth District regarding Section 404 jurisdiction 
over isolated waters. They requested that the expiration of NWP 26 be 
delayed until the issue of regulation of isolated wetlands is resolved. 
That decision, in the case of United States v. Wilson, 133 F.3d 251 
(4th Cir. 1997) pertains to how a link is established between isolated 
water bodies and interstate or foreign commerce. The ultimate impact of 
that decision, if any, on Section 404 jurisdiction will occur 
independently of the existence of NWP 26 or other NWPs. The expiration 
of NWP 26 will not change the Corps jurisdiction in isolated waters, 
but rather when the Corps evaluates and authorizes projects in such 
waters.

E. Programmatic General Permits

    Several of the commenters who were opposed to the replacement of 
NWP 26 with activity-specific NWPs made a comparison to programmatic 
general permits. These commenters believe the Corps is mis-interpreting 
the meaning of ``activities similar in nature'' because programmatic 
general permits routinely authorize many different types of activities. 
The difference between programmatic general permits and other general 
permits is that programmatic general permits are based on the existence 
of a Federal, State or local regulation that duplicates that of the 
Corps and authorizes several specific activities, each of which is 
similar in nature. Other general permits are based on a singular 
specific activity. Instead of a single programmatic general permit the 
Corps could issue several separate general permits, each based on the 
specific activities in the Federal, state, or local program. However, 
the Corps believes this would involve additional and unnecessary 
paperwork and confusion for the regulated public.

F. Regulatory Flexibility Act

    In its comments, the National Association of Home Builders stated 
that the Corps should have conducted a regulatory flexibility analysis, 
in conjunction with the modifications to NWP 26, as required by the 
Small Business Regulatory Enforcement

[[Page 39279]]

Fairness Act which is part of the Regulatory Flexibility Act. Such an 
analysis would develop and examine alternatives that minimize impacts 
on small business and would describe steps taken by the agency to 
minimize adverse effects to small business. The Corps believes that 
this requirement does not apply to modification of NWPs. The NAHB's 
letter referred to Section 603(a) of the RFA, which provides that 
whenever an agency is required by section 553 of the Administrative 
Procedures Act, or any other law, to publish general notice of proposed 
rulemaking for any proposed rule, it must conduct a flexibility 
analysis. However, the NWPs are permits, similar to individual and 
regional general permits; they are not regulations (rules) and 
therefore would not fall under this requirement. The Corps NWP 
regulations at 33 CFR Part 330 are in compliance with the RFA and the 
Corps believes that the NWPs are also in compliance with the RFA. 
Indeed, the purpose of the NWPs is to minimize unnecessary adverse 
effects on the regulated public and the entire review process focuses 
on identification and consideration of alternatives for authorizing 
activities with minimal adverse effects.

III. Prohibition Against Filling More Than 500 Linear Feet of 
Stream Bed

A. Consistency

    In the December 13, 1996, Federal Register, the Corps stated that 
500 feet was chosen as a cutoff point for consistency with NWPs 12 and 
13. Most of the commenters opposed to the changes, pointed out that, 
under NWPs 12 and 13, reaching a length of 500 feet of impact triggers 
a PCN while under NWP 26 it triggers an IP. The Corps meant that the 
actual length was chosen to be consistent with the length in NWPS 12 
and 13. It is recognized that the prohibition is more restrictive than 
the PCN requirement for NWPs 12 and 13. This matter will be reviewed in 
conjunction with the issuance of the new, activity specific, NWPs that 
will become effective when NWP 26 expires.

B. Work in Areas Much Smaller Than One Third Acre Will Be Precluded

    Many of the commenters opposed to the 500-foot limit noted that a 
500-foot length of a narrow stream bed or waterway could result in 
individual permit review of an impact area well below the 1/3-acre PCN 
threshold and far from the 3-acre limit that exists for NWP 26. In 
these cases, the degree of impact may be disproportionate to the 
acreage involved. For example, filling a 5-foot wide stream bed over a 
distance of O.5 mile would result in a loss of 0.30 acre of stream bed. 
Under acreage limits, alone, a PCN would not be required, yet the work 
could result in more than minimal adverse effects if the stream served 
important spawning habitat functions. Therefore, the Corps believes it 
has a responsibility to review those projects more closely as long as 
specific activities are undefined. We are continuing to collect data 
and will review this limitation in the activity-specific NWPs that will 
replace NWP 26.

C. Definition of Stream Bed

    Almost all the commenters opposed to the 500-foot limit indicated 
that the Corps should distinguish between different types of streams 
and should provide clear definition of a stream. They also encouraged 
the Corps to take into consideration the characteristics of the 
stream's drainage basin and stream bed hydrology. They expressed 
concern that the southwestern region of the U.S. would be unduly 
burdened by this restriction. Finally, they cautioned against use of 
the ``ordinary high water mark'' (OHWM) for determining existence of a 
stream in that region (many dry runs have an OHWM, yet carry water only 
after heavy rain events).
    In the December 13, 1996, preamble, the term ``loss of waters of 
the U.S.'' was defined differently for the linear limitation for 
streambed than for the acreage limitation. For the acreage limitation, 
the term includes filling, excavation, drainage, and flooding impacts. 
For the 500 linear-foot limitation, the preamble specifically 
distinguishes the impacts to be considered as activities ``directly 
affecting (filling or excavating) more than 500 linear feet of the 
stream bed of creeks or streams''. When determining the 500-foot 
limitation, the Corps will evaluate the length of filling or excavating 
in the stream bed (within the ordinary high water mark). The term 
``stream bed'' was meant to capture water bodies that normally have 
flowing water. This would include all perennial streams and many, but 
not all, intermittent streams. In deciding whether to apply the 
restriction to an intermittent stream, the Corps would consider whether 
the level of impact was minimal by applying professional judgement, 
considering the characteristics of the drainage basin and stream bed 
hydrology, etc. This determination should not be confused with a 
determination of jurisdiction.

IV. Use of NWP 26 With Other NWP's Cannot Exceed 3 Acres of Impact

A. Limitation vs Prohibition

    Many of the comment letters, both those in support and those 
opposed to the changes to NWP 26, included statements indicating that 
the commenters might not be making the distinction between limitation 
and prohibition of multiple use of NWPs for one single and complete 
project (commonly referred to as ``stacking''). The Corps has not 
prohibited the multiple use of other NWPs with NWP 26 to authorize a 
single and complete project. However, when multiple NWPs are used, the 
total acreage is limited to 3 acres. In addition, notification is 
required for projects where any NWP 12 through 40 is used with another 
NWP 12 through 40. This is not a prohibition of stacking; rather, 
stacking is allowed within the stated limits and conditions.

B. Unreasonable Assumption

    Many of the commenters opposed to the changes stated that it is not 
reasonable to assume that two or more project components, each with 
minimal adverse effects on its own, will automatically add up to more 
than minimal adverse effects when put together. The Corps does not 
believe that two or more minimal adverse effect projects always add up 
to greater than minimal adverse effects. Rather, we recognize that the 
potential exists and therefore, there should be a mechanism (i.e., the 
PCN) to assure evaluation of each case. In the case of NWP 26, we also 
believe that a limit of 3 acres is appropriate to ensure that there can 
be equitable use of the NWP by members of the public while maintaining 
minimal cumulative adverse effects.

C. Contrary to Sec. 330.6

    Many of the commenters opposed to the changes stated that the 
stacking limitation is contrary to 33 CFR 330.6(c). However, that 
section reads, in its entirety:
    Two or more different NWPs can be combined to authorize a ``single 
and complete project'' as defined at 33 CFR 330.2(I). However, the same 
NWP cannot be used more than once for a single and complete project.
    That paragraph simply says that multiple use is acceptable; it does 
not say that it is mandatory that it be allowed in every case; nor does 
it make any statement about what type of conditions may be placed on 
use of multiple NWPs.

[[Page 39280]]

D. Hindrance of Well-planned Developments

    Several commenters opposed to the limitations placed on NWP 26 
stated that the new limits will discourage developers from proposing 
well-planned developments. They believe that, in order to qualify for 
an NWP under the lower limits, developers will present a larger number 
of smaller projects as ``single and complete'' rather than a more 
genuine, larger, single and complete project such as could be done with 
allowance for up to 10 acres of fill. Others indicated that developers 
would make less effort to ``avoid and minimize'' at the outset. Once 
they determined they would have to apply for an individual permit 
anyway, they would start out by requesting as much wetland fill as they 
might wish. Both of these scenarios are possible with the previous or 
current limits of NWP 26. The Corps doesn't believe that this would 
encourage developers to design projects this way. It is incumbent on 
the Corps to evaluate if a project is truly ``single and complete'' or 
is, rather, the first of several components of a larger single and 
complete project. In the same way, the Corps must determine if 
appropriate avoidance and minimization has been conducted and that the 
adverse effects are minimal. The Corps is considering this in more 
detail in the NWPs proposed to replace NWP 26.

E. Need for an Upper Limit

    Several commenters opposed to the changes stated that an upper 
limit should not be necessary since a PCN is required any time more 
than one NWP 12 through 40 is applied to a single and complete project. 
Some of the same commenters suggested that there be provisions allowing 
for 3 acres to be exceeded for the most-often-used combinations of 
NWPs. As stated above, based on current knowledge of wetland science 
and of the types of projects proposed nationwide, the Corps believes 
that to ensure that adverse effects are minimal we, usually, need to 
maintain an upper acreage limit of 3 acres to projects authorized under 
one or more NWPs. However, a limit of 10 acres has been proposed for 
master planned developments in the activity-specific NWPs proposed to 
replace NWP 26 (63 FR 36040-36078).

V. Conclusion

    Based on our review of the comments we have concluded that the 3 
modifications:(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, we made regarding NWP 26 are appropriate and 
should not be changed, with one exception. We have proposed to extend 
the expiration date of NWP 26 to March 28,1999, to ensure that there is 
adequate time to effectively involve other agencies and the public in 
the development of regional conditions for the new and modified, 
activity-specific, NWPs and to ensure that those NWPs are in place at 
the time NWP 26 expires.

    Dated: July 17, 1998.
Charles M. Hess,
Chief, Operations Division, Directorate of Civil Works.
[FR Doc. 98-19495 Filed 7-21-98; 8:45 am]
BILLING CODE 3710-92-P