[Federal Register Volume 63, Number 198 (Wednesday, October 14, 1998)]
[Notices]
[Pages 55095-55099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27407]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers


Proposal to Issue and Modify Nationwide Permits

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

ACTION: Notice of Intent and request for comments.

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SUMMARY: To further ensure that the proposed nationwide permits (NWPs) 
published in the July 1, 1998, Federal Register would only authorize 
activities that have minimal adverse environmental effects on the 
aquatic environment, the Corps is proposing additional changes to those 
proposed NWPs. For example, the Corps is announcing its decision to 
withdraw the proposed NWP B for master planned development and 
proposing the addition of a restriction on the use of certain NWP's in 
the 100 year Floodplain. We are proposing to exclude NWPs in designated 
critical resource waters and in impaired waters. In addition, the Corps 
has revised its

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schedule for developing the NWPs to provide for additional public 
comment. This will result in a delay in the schedule for issuing the 
new and revised NWPs. Consequently, the Corps is also announcing its 
decision to delay the expiration of NWP 26, so that it will not expire 
before the proposed new and revised NWPs are issued. The revised 
schedule provides for the new and revised NWPs to be issued and for NWP 
26 to expire on September 15, 1999.

DATES: Comments on these proposed changes to the proposed nationwide 
permits must be received by November 30, 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 or http://www.usace.army.mil/inet/functions/
cw/cecwo/reg/.

SUPPLEMENTARY INFORMATION:

Background

    On July 1,1998, the Army Corps of Engineers provided notice (FR 
Vol. 63, No. 126, p. 36040) of proposed changes to its Nationwide 
General Permit Program. The public comment period on the Corps proposal 
closed on August 31, 1998. That notice responded to the Corps 1996 
commitment that it would phase out Nationwide permit 26 (NWP 26), which 
authorized discharges into headwaters and isolated wetlands, and 
replace it with a set of ``activity based'' NWPs. This decision is 
consistent with the Corps goal of providing necessary fairness and 
flexibility in the Regulatory Program while improving environmental 
protection. In its July 1, 1998 notice, the Corps proposed to replace 
NWP 26 by issuing six new NWPs and to modify six existing NWPs to 
become effective when NWP 26 expired.
    One of the new NWPs initially proposed by the Corps was NWP B, 
which was designed to authorize discharges in waters of the United 
States associated with construction of Master Planned Developments. The 
proposed permit would apply to the construction of residential, 
commercial, and industrial developments that include plans for the 
complete long-term restoration and protection of aquatic resources. The 
Corps objective in proposing NWP B was to encourage comprehensive 
planning of developments that completely integrate restoration, 
enhancement and long term protection of the aquatic environment. As 
proposed, NWP B would authorize discharges associated with the 
construction or expansion of master planned developments affecting up 
to ten acres of non-tidal waters, excluding non-tidal wetlands 
contiguous to tidal wetlands.
    The July notice also announced the initiation of a process to 
develop regional conditions for the new NWPs. Consistent with the 
requirements of the Clean Water Act to effectively protect the Nation's 
water resources, the Corps designed this process to identify additional 
regional limitations and restrictions on the use of the new NWPs to 
ensure that adverse effects on the aquatic environment authorized by 
the replacement NWPs are minimal. Regional conditions, such as limits 
on the use of the new NWPs to protect environmentally sensitive waters 
or restrictions on the timing of permitted actions to avoid impacts to 
spawning fish or migrating waterfowl, are being developed by Corps 
Districts in coordination with other federal and state agencies and the 
public. The process to develop regional conditions is currently 
underway and is to be completed before the new and modified NWPs are 
made final.
    Another major emphasis for the Corps is to ensure that the public 
is provided an effective opportunity to participate fully in the 
process to develop replacement permits for NWP 26, including the 
opportunity for involvement in the regional conditioning process. The 
original schedule provided for two National notices in the Federal 
Register, including the July 1, 1998, notice seeking public comment on 
the Corps proposal, and a scheduled December, 1998, notice to provide a 
response to public comments and to announce the Corps final package of 
new and modified NWPs to take effect in March, 1999. In addition, Corps 
Districts are also publishing public notices on a District-wide basis 
to facilitate public participation in the regional conditioning 
process. The Corps has conducted public hearings and public meetings 
nationwide to provide for additional public input and to answer 
questions regarding the proposal.

Supplement to the July 1, 1998 Nationwide Permit Proposal

    Since the Corps published its July 1, 1998, notice and request for 
public comments on the proposal to issue new NWPs and modify existing 
NWPs to replace the expiring NWP 26, the Corps has decided to make 
several alterations to that original proposal and to seek comments on 
proposed new conditions limiting the applicability of the replacement 
permits in critical resource waters and in impaired waters. In 
addition, the Corps has determined that the public should be provided 
an additional opportunity for participation in the process of 
developing replacement permits, and is providing the revised schedule 
in an appendix at the end of this document.

1. Withdraw Proposal to Issue Nationwide Permit B

    After careful consideration of the initial public and agency 
comments, and our original goals and objectives in proposing NWP B for 
discharges associated with Master Planned Developments, the Corps has 
decided to withdraw this proposed nationwide permit. There are a number 
of factors relevant to this decision. The Corps is concerned, at this 
time, that without additional analysis regarding appropriate terms and 
conditions for this proposed NWP, that the 10-acre limit may be too 
high. While we continue to support the goal of encouraging development 
that is planned and designed for the long-term protection of the 
Nation's valuable aquatic resources, discussions to date with Corps 
field staff and public comments indicate that there is substantial 
confusion regarding NWP B. The Corps may, after further evaluation, 
consider reproposing, at a future date, a NWP that is more completely 
developed and conditioned.

2. Exclusion of Floodplains From the Replacement NWPs

    The Corps is proposing to modify the applicability of the 
replacement NWPs by excluding their use in authorizing permanent above 
grade wetland fills in waters of the United States located within the 
100-year floodplain as defined by the Federal Emergency Management 
Agency (FEMA) and identified on FEMA's Flood Insurance Rate Maps.
    A fundamental aspect of the Corps mission is to protect public 
health and safety by reducing the loss of life and property caused by 
flooding, to safeguard sources of drinking water supplies, and to 
protect and restore the natural functions of the Nation's floodplains. 
The Corps Challenge 21 Initiative as well as Executive Order 11988 on 
Floodplains recognize the critical need to ensure that Federal agency 
actions emphasize efforts to reduce the potential for the loss of life 
and property by flooding and to increase opportunities for the 
restoration of historically altered floodplains.
    FEMA has brought to the Corps attention the serious implications of 
further reductions of flood storage capacity within the 100-year 
floodplain.

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The potential risks to life and property, as well as the economic 
implications for homeowners, businesses, and state and local 
governments, clearly indicate the importance of limiting the use of 
NWPs for permanent above grade wetland fills in the 100-year 
floodplain.
    Consistent with the shared goals and responsibilities that the 
Corps and FEMA have for reducing flood damages, the Corps believes that 
most activities in the100-year floodplain should not be authorized by 
NWPs. This includes commercial and residential developments, and mining 
and stormwater detention pond activities that result in permanent above 
grade wetland fills. It is our belief that such activities do result in 
permanent above grade fills and will be subject to this limitation. The 
Corps recognizes, however, that other activities, such as boat ramps, 
mooring buoys and stream restoration projects must be by definition 
within the 100-year floodplain and generally will have little impact on 
flooding. Such activities will continue to be subject to authorization 
by NWP. The Corps is requesting public comment on this proposal, 
including recommendations on the applicability of this restriction on 
existing and proposed NWPs.

3. Exclusion for Designated Critical Resource Waters

    The Clinton Administration's recently developed Clean Water Action 
Plan provides a blueprint for protecting the Nation's vital water 
resources and achieving the statutory goals that Congress has set forth 
in the Clean Water Act. The Corps is a full partner in implementing the 
Clean Water Action Plan, which fulfills the mandates of the Clean Water 
Act through a series of steps to reduce public health threats, improve 
the stewardship of natural resources, and strengthen polluted runoff 
controls. To ensure consistency of NWPs with this initiative and with 
the specific Clean Water Act requirement that activities permitted 
through NWPs have minimal adverse environmental effects, it is 
important to ensure that activities approved under the Nationwide 
Permit Program avoid, to the maximum practicable extent, potential 
adverse environmental effects on waters that are recognized as critical 
resource waters. Such waters may include, for example, Outstanding 
Natural Resource Waters, National Wild and Scenic Rivers, and State 
Ecological Reserves.
    Accordingly, the Corps is proposing to exclude the use of NWPs in 
certain State or Federally designated critical resource waters and 
their adjacent wetlands. The Corps is requesting public comments on 
this proposal and specifically solicits the public's input on which 
designated waters should be subject to the exclusion. Further, comments 
are requested on which, if any, NWPs should not be subject to this 
exclusion. For example, certain activities authorized by NWP, such as 
mooring buoys, may have no discernable effect on the designated 
critical resource waters. The public will have an opportunity, through 
the final Federal Register notice, to comment on any proposed 
exceptions and those waters proposed for exclusion.

4. Exclusion for Impaired Waters

    A critical impetus for the development of the Administration's 
Clean Water Action Plan was the recognition that despite the efforts of 
25 years of progress under the Clean Water Act, 40 percent of the 
Nation's surveyed waters do not meet the goals Congress set forth in 
the Act. The Plan promotes initiatives by the States to identify its 
impaired waters, and to develop, in coordination with Federal partners, 
including the Corps, unified assessments and response plans to restore 
the health of these waters.
    In many cases, the impaired status of certain open waters like 
lakes, rivers and streams, is directly related to historic losses of 
wetlands in a particular watershed. Similarly, the impairment or loss 
of numerous drinking water aquifers is attributable to the loss of 
freshwater storage provided by wetlands. In these cases, the Corps 
believes that use of some of the NWPs may undermine efforts to restore 
impaired waters and aquifers to a healthy condition, particularly where 
the impairment can be related to historical loss of waters, including 
wetlands, from filling those waters in a watershed.
    The Corps is proposing to limit the use of NWPs in wetlands 
identified with waters and aquifers that have been identified by the 
States as impaired. The Corps is requesting suggestions on the criteria 
for determining or identifying impaired waters. For example, waters 
identified as impaired through the Clean Water Act section 303(d) 
process may provide one such basis for exclusion. The Corps is 
requesting public comments on this proposal, particularly with regard 
to how such impaired waters or aquifers should be identified for 
purposes of this restriction on the use of the new NWPs. The Corps is 
also seeking comments on criteria the Corps would use to limit use of 
NWPs in certain impaired waters, including how this proposal could more 
effectively respond to State prerogatives such as the section 401 water 
quality certification process. In addition, comments are requested on 
which, if any, NWPs should not be subject to this limitation. For 
example, NWP 27 may be used to restore impaired streams and wetlands.

5. Additional Opportunity for Public Participation

    The Corps recognizes the critical role of the public in the 
development of the replacement NWPs and seeks to ensure that public 
involvement is effectively promoted throughout the development process. 
After the Corps has reviewed the comments on the proposed new and 
revised NWPs published in the July 1, 1998, notice, reviewed the 
comments on the proposed changes published in this notice, and upon 
completion of the draft regional conditions, the Corps will publish the 
final NWPs in the Federal Register. Based on these draft final NWPs, 
the states will have 60 days to make their Clean Water Act Section 401 
Water Quality Certification and State Coastal Zone decisions, including 
state regional conditions.
    The Corps believes it is important to provide the public with an 
opportunity to review and comment on a complete NWP package that 
includes: the final set of NWPs and national conditions, the final 
regional conditions, and the additional State conditions. Therefore, 
the Corps has decided to publish an additional Federal Register notice 
seeking public comment on the final version of the replacement NWPs, 
including the final Corps and state regional conditions. There will be 
a 45-day comment period, after which the Corps will publish the final 
NWPs, including any changes as a result of consideration of comments 
received on that Federal Register notice. Should the Corps make any 
changes that would materially affect the state 401 or CZM actions, the 
state would be provided an additional opportunity to modify its action.
    The decision to add an additional Federal Register notice providing 
for additional public comment will extend the process to complete and 
implement the new and revised NWPs. Our goal remains to move this 
entire process forward in a timely manner so that final improvements to 
the NWP Program can be implemented as soon as possible. Further, the 
Corps remains committed to replacing NWP 26. It is, however, important 
that we continue the use of NWP 26 until the replacement permits are 
issued and in effect. To that end and based on our review of comments 
received in response to the proposed

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extension of NWP 26 beyond December 13, 1998, as published in the July 
1, 1998, Federal Register, we have decided to extend NWP 26 to 
September 15, 1999. Our decision document for this decision, including 
our response to the public comments, is available in the Office of the 
Chief of Engineers at the address above and on the Corps homepage at 
the Internet address provided above.

    Dated: October 7, 1998.

    Approved:
Russell L. Fuhrman,
Major General, U.S. Army, Director of Civil Works.

Appendix--1999 Nationwide Permit Milestones

BILLING CODE 3710-92-P

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[FR Doc. 98-27407 Filed 10-13-98; 8:45 am]
BILLING CODE 3710-92-C