[Federal Register Volume 64, Number 139 (Wednesday, July 21, 1999)]
[Notices]
[Pages 39252-39371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18292]
[[Page 39251]]
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Part III
Department of Defense
_______________________________________________________________________
Department of the Army, Corps of Engineers
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Proposal To Issue and Modify Nationwide Permits; Notice
Federal Register / Vol. 64, No. 139 / Wednesday, July 21, 1999 /
Notices
[[Page 39252]]
DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
Proposal To Issue and Modify Nationwide Permits; Notice
AGENCY: Army Corps of Engineers, DoD.
ACTION: Notice of intent and request for comments.
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SUMMARY: To improve protection of the aquatic environment, the Corps of
Engineers is proposing to issue 5 new Nationwide Permits (NWPs) and
modify 6 existing NWPs to replace NWP 26 when it expires. The Corps is
also proposing to modify 9 NWP general conditions and add three new
general conditions. These general conditions will apply to the proposed
new and modified NWPs, as well as the NWPs issued on December 13, 1996,
when the new and modified NWPs become effective. The proposed new NWPs
are activity-specific and authorize activities in all non-tidal waters
of the United States, except for non-tidal wetlands adjacent to tidal
waters. These proposed new and modified NWPs will allow Corps districts
to enhance protection of the aquatic environment, by utilizing the
Corps limited resources to review proposed projects, based on the
degree of adverse effects on the aquatic environment. The Corps will
spend more time on projects with the potential for more environmental
damage and less time on projects with minimal adverse effects on the
aquatic environment. The Corps has developed, with public and Federal,
Tribal, and State agency comments, terms and conditions to ensure that
the adverse effects of authorized activities are minimal. A key element
of this process by the Corps to develop NWPs with minimal adverse
effects on the aquatic environment is regional conditioning developed
by district and division engineers. Regional conditioning of NWPs is
critical to ensure that the NWPs help the Corps achieve these goals.
Regional conditioning of NWPs is necessary to account for differences
in aquatic resource functions and values across the country. Regional
conditions will be added to the proposed new and modified NWPs by
division engineers to ensure that the NWPs authorize only those
activities that have minimal adverse effects on the aquatic
environment, individually or cumulatively. Concurrent with this Federal
Register notice, each Corps district will issue a public notice to
solicit comments on their final draft regional conditions for the
proposed new and modified NWPs.
The purpose of this Federal Register notice is to solicit comments
on the final draft of the proposed new and modified NWPs that will
replace NWP 26, as well as the NWP general conditions and definitions.
Concurrent with this Federal Register notice, each Corps district will
publish a public notice to solicit comments on their final draft
regional conditions for the new and modified NWPs. The comment period
for these district public notices will be 45 days. After reviewing the
comments received in response to this Federal Register notice, the
Corps will issue another Federal Register notice announcing the
issuance of the new and modified NWPs to start the final 60 days for
the State and Tribal Section 401 Water Quality Certification and
Coastal Zone Management Act consistency determination decisions. After
this 60-day period, the new and modified NWPs will become effective as
NWP 26 expires.
To improve the implementation of the NWP program, the Corps has
combined the NWP general conditions and Section 404 Only conditions
into one set of general conditions. The Corps will issue a set of
definitions for use with all of the NWPs to provide more consistency in
the application of terms commonly used in the NWP program.
Although NWP 26 was scheduled to expire on September 15, 1999, the
Corps has extended the expiration date of NWP 26 to December 30, 1999,
or until the effective date of the new and modified NWPs, whichever
comes first.
DATES: Comments on the proposed new and modified NWPs must be received
by September 7, 1999.
ADDRESSES: HQUSACE, ATTN: CECW-OR, 20 Massachusetts Avenue, NW,
Washington, DC 20314-1000. Submit electronic comments to
[email protected]. See SUPPLEMENTARY INFORMATION for file
formats and other information about electronic filing of comments.
FOR FURTHER INFORMATION CONTACT: Mr. David Olson or Mr. Sam Collinson
at (202) 761-0199 or access the Corps of Engineers Regulatory Home Page
at: http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION:
Background
On December 13, 1996, the Corps of Engineers (Corps) reissued NWP
26 for a period of two years and announced its intention to replace NWP
26 with activity-specific NWPs prior to the expiration date of NWP 26.
In the July 1, 1998, issue of the Federal Register (63 FR 36040--
36078), the Corps published its proposal to replace NWP 26 by issuing 6
new NWPs, modifying 6 existing NWPs, modifying 6 NWP general
conditions, and adding one new NWP general condition. NWP 26 authorizes
discharges of dredged or fill material into headwaters and isolated
waters, provided the discharge does not result in the loss of greater
than 3 acres of waters of the United States or 500 linear feet of
stream bed. Isolated waters are non-tidal waters of the United States
that are not part of a surface tributary system to interstate or
navigable waters of the United States and are not adjacent to
interstate or navigable waters. Headwaters are non-tidal streams,
lakes, and impoundments that are part of a surface tributary system to
interstate or navigable waters of the United States with an average
annual flow of less than 5 cubic feet per second.
The new and modified NWPs proposed in the July 1, 1998, Federal
Register notice could authorize many of the same activities with
minimal adverse effects on the aquatic environment that are currently
authorized by NWP 26. Most of the proposed new and modified NWPs
authorize activities in all non-tidal waters of the United States,
excluding non-tidal wetlands adjacent to tidal waters. These proposed
NWPs will ensure that the NWP program is based on the types of
authorized activities. Regional conditioning of these proposed NWPs
will limit or prohibit their use in high quality waters.
The terms and limits of the proposed new and modified NWPs are
intended to authorize activities that typically result in minimal
adverse effects on the aquatic environment. For these proposed NWPs,
the Corps has also established preconstruction notification (PCN)
thresholds to ensure that any activity that may potentially have more
than minimal adverse effects will be reviewed by district engineers on
a case-by-case basis. Most of the proposed NWPs require submission of a
PCN for losses of greater than \1/4\ acre of waters of the United
States. Most of the proposed NWPs require PCNs for filling open waters,
including streams, and for certain proposed NWPs a PCN may be required
for filling more than 500 linear feet of stream bed. The PCN
requirements for filling stream beds may differ, depending on whether a
perennial, intermittent, or ephemeral stream bed is filled. For most of
these NWPs, there is no PCN requirement for filling ephemeral stream
beds. Excavation of stream beds may require a PCN if the excavation
activity results
[[Page 39253]]
in a discharge of dredged material, including redeposit other than
incidental fallback, into waters of the United States. Regional
conditions may be added to NWPs by district or division engineers to
lower notification thresholds or require notification for all
activities authorized by an NWP in order to ensure no more than minimal
adverse effects on the aquatic environment.
The 5 new NWPs proposed in this Federal Register notice will expire
5 years from their effective date. The proposed 6 modified NWPs (i.e.,
NWPs 3, 7, 12, 14, 27, and 40) will expire on February 11, 2002, with
the other NWPs that were issued, reissued, or modified in the December
13, 1996, Federal Register notice (61 FR 65874-65922). The proposed new
and modified NWPs are scheduled to become effective on December 21,
1999, and we have extended the expiration date of NWP 26 to December
30, 1999, or the effective date of the new and modified NWPs, whichever
occurs first. The extension of the expiration date for NWP 26 is
discussed in more detail below.
Compensatory mitigation will be required when the District Engineer
determines such mitigation is necessary to ensure that the activities
authorized by NWPs will result only in minimal adverse effects on the
aquatic environment. For a particular project, the District Engineer
may determine that compensatory mitigation is not necessary, because
the activity will result in no more than minimal adverse effects on the
aquatic environment without compensatory mitigation. Some of the NWPs
contain requirements for compensatory mitigation for certain
activities, particularly for activities that require notification to
the District Engineer. Compensatory mitigation will be used to support
the goal of no net loss of aquatic resource functions and values by
offsetting impacts to the aquatic environment. Compensatory mitigation
can be accomplished through the restoration, creation, enhancement,
and/or in exceptional circumstances, preservation of aquatic resources
either by individual projects constructed by the permittee or the use
of mitigation banks, in lieu fee programs, or other consolidated
mitigation efforts. For the new and modified NWPs, an important
component of compensatory mitigation is the establishment and
maintenance of vegetated buffers adjacent to open and flowing waters.
Vegetated buffers adjacent to open waters or streams may consist of
either uplands or wetlands and help protect and enhance local water
quality and aquatic habitat features in the waterbody. Vegetated
buffers can be established by maintaining an existing vegetated area
adjacent to open or flowing waters or by planting native trees, shrubs,
and herbaceous perennials in areas with little existing perennial
native vegetation. The benefits and requirements for vegetated buffers
are discussed in further detail below.
During the review of PCNs, district and division engineers can
exercise discretionary authority and require an individual permit for
those activities that result in more than minimal adverse effects on
the aquatic environment. District engineers can also place conditions,
including compensatory mitigation requirements, on NWP authorizations
on a case-by-case basis to ensure that the activity authorized by the
NWP results only in minimal adverse effects on the aquatic environment.
For these NWPs, we are placing greater emphasis on regional
conditioning to ensure that the NWPs authorize only activities with
minimal adverse effects on the aquatic environment. Regional conditions
allow the NWP program to take into account regional differences in
aquatic resource functions and values across the country. Each district
will identify areas of high value waters that require lower PCN
thresholds or notification for all activities in those waterbodies to
ensure that the NWPs authorize only activities with minimal adverse
effects on the aquatic environment. Division engineers can also suspend
or revoke certain NWPs in high value waters if the use of those NWPs
would result in more than minimal adverse effects on the aquatic
environment, individually or cumulatively. The regional conditioning
process is discussed in more detail below.
The Corps believes that the new and modified NWPs, with regional
conditions, will increase the overall protection of the aquatic
environment when compared to the existing NWP program. However, the
scope of applicable waters for the proposed NWPs and the proposed NWP
General Condition 27, which prohibits the use of certain NWPs to
authorize permanent, above-grade fills in waters of the United States
within the 100-year floodplain, will substantially increase the Corps
individual permit workload. The proposed new and modified NWPs, in
addition to the existing NWPs, will allow the Corps to efficiently
authorize activities with minimal adverse effects on the aquatic
environment and focus its efforts on protecting high value aquatic
resources. NWPs will be used to authorize most activities in low value
waters. Higher value waters, including wetlands, will receive
additional protection through regional conditioning of the NWPs,
special conditions on specific NWP authorizations, and case-specific
discretionary authority to require an individual permit when necessary.
Regional conditions will be required by each district to restrict or
prohibit the use of NWPs in high value waters. The Corps will require
compensatory mitigation, where appropriate, to ensure that the
individual or cumulative adverse effects on the aquatic environment
authorized by these NWPs are no more than minimal. NWPs may also be
suspended or revoked in some high value waters if the use of those NWPs
would result in more than minimal adverse effects on the aquatic
environment.
The proposed new and modified NWPs also reflect the Corps increased
focus on open or flowing waters. One of the goals of the proposed new
and modified NWPs is to improve protection of open waters and streams,
especially water quality and aquatic habitat, while continuing to fully
protect wetlands. District engineers will not place less consideration
on adverse effects to other types of waters for the sake of wetlands,
especially low value wetlands. The establishment and maintenance of
vegetated buffers adjacent to open waters and streams will protect,
restore, and enhance water quality and aquatic habitat. Vegetated
buffers can be used to provide out-of-kind compensatory mitigation for
wetland impacts where the District Engineer determines that such
mitigation for wetland impacts is the best, ecologically, for the
aquatic environment.
In addition to regional conditioning of the proposed new and
modified NWPs, additional substantial protection of the aquatic
environment will result from the modification of two NWP general
conditions. We are proposing to modify General Condition 9, Water
Quality, to require that postconstruction conditions do not result in
more than minimal degradation of downstream water quality. An important
component of this general condition is the requirement that, for
certain NWPs, the permittee implement a water quality management plan
to protect water quality. The water quality management plan may consist
of stormwater management facilities or vegetated buffers adjacent to
open or flowing waters or wetlands. It is not our intent to replace
existing State or local water quality safeguards if those current
safeguards are adequate. However, where the State or local program does
not ensure that an authorized activity
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results in no more than minimal impacts on downstream water quality,
the Corps will condition its NWP authorization to contain a water
quality management plan. We are also proposing to modify former Section
404 Only condition 6 (now designated as General Condition 21) to
require that neither upstream nor downstream areas are subject to more
than minimal flooding or dewatering after the project has been
constructed and while the authorized activity is operated. General
Condition 21 will help ensure that postconstruction effects on local
surface water flows are minimal.
On October 14, 1998, the Corps published a supplemental notice in
the Federal Register (63 FR 55095-55098) requesting comments on
additional proposed limitations for the NWP program, including the
proposed new and modified NWPs. This Federal Register notice also
announced the withdrawal of NWP B for master planned development
activities from the July 1, 1998, proposal. The additional NWP
limitations proposed in the October 14, 1998, Federal Register notice,
include prohibiting the use of NWPs in certain designated critical
resource waters, limiting the use of NWPs in impaired waters, and
prohibiting the use of the new NWPs to authorize permanent, above-grade
wetland fills in waters of the United States within the 100-year
floodplain as mapped by the Federal Emergency Management Agency.
As a result of the proposal published on October 14, 1998, we are
proposing to add 3 new NWP general conditions. General Condition 25,
Designated Critical Resource Waters, prohibits the use of certain NWPs
to authorize discharges of dredged or fill material into designated
critical resource waters, including wetlands adjacent to those waters.
General Condition 25 also requires notification to the District
Engineer for activities authorized by certain other NWPs in Designated
Critical Resource Waters. General Condition 26, Impaired Waters,
restricts the use of NWPs to authorize discharges of dredged or fill
material into waters of the United States designated through the Clean
Water Act Section 303(d) process as impaired due to nutrients, organic
enrichment resulting in low dissolved oxygen concentration in the water
column, sedimentation and siltation, habitat alteration, suspended
solids, flow alteration, turbidity, or the loss of wetlands. General
Condition 26 prohibits the use of NWPs to authorize discharges of
dredged material resulting in the loss of greater than 1 acre of
impaired waters of the United States, including wetlands adjacent to
those impaired waters. For discharges of dredged material resulting in
the loss of 1 acre or less of impaired waters of the United States,
including adjacent wetlands, General Condition 26 requires the
prospective permittee to notify the District Engineer and clearly
demonstrate that the project will not result in further impairment of
the listed water. General Condition 27, Fills Within the 100-year
Floodplain, prohibits or restricts the use of certain NWPs to authorize
permanent, above-grade fills in waters of the United States within the
100-year floodplain.
The October 14, 1998, Federal Register notice also announced the
extension of the expiration date for NWP 26 to September 15, 1999. As a
result of the additional time needed to finalize the proposed new and
modified NWPs, the Corps has decided to extend the expiration date of
NWP 26 to December 30, 1999, or the effective date of the new and
modified NWPs, whichever comes first, to ensure that there is no gap
between the effective date of the new and modified NWPs and the
expiration date of NWP 26. Extending the expiration date of NWP 26 is
necessary to ensure fairness to the regulated public by continuing to
provide an NWP for activities in headwaters and isolated waters that
have minimal adverse effects on the aquatic environment until the new
and modified NWPs proposed in this Federal Register notice become
effective. In response to the July 1, 1998, Federal Register notice,
many commenters recommended that the Corps extend the expiration date
of NWP 26 until the proposed new and modified NWPs are issued and
become effective. NWP 26 can continue to be used to authorize
activities in headwaters and isolated waters until its expiration date.
A permittee who receives an NWP 26 authorization prior to the
expiration date will have up to 12 months to complete the authorized
activity, provided the permittee commences construction, or is under
contract to commence construction, prior to the date NWP 26 expires
(see 33 CFR Part 330.6(b)). This provision applies to all NWP
authorizations unless discretionary authority has been exercised on a
case-by-case basis to modify, suspend, or revoke the NWP authorization
in accordance with 33 CFR Part 330.4(e) and 33 CFR Part 330.5 (c) or
(d).
The existing NWPs, with the exception of NWP 26, will remain in
effect until they expire on February 11, 2002, unless otherwise
modified, reissued, or revoked. Some of the proposed new and modified
NWPs can be used with existing NWPs to authorize activities with
minimal adverse effects on the aquatic environment. The use of more
than one NWP to authorize a single and complete project is addressed in
the proposed modification of General Condition 15, Use of Multiple
Nationwide Permits.
The October 14, 1998, Federal Register notice also discussed the
need for additional opportunities for public comment on the new and
modified NWPs and regional conditions. We have modified the process for
additional opportunities for public comment to allow for more effective
implementation of the proposed new and modified NWPs.
The revised process for issuing the proposed new and modified NWPs
is illustrated in Figure 1. Figure 1 does not contain the previous
steps in the development of the proposed new and modified NWPs. The
revised process starts with today's publication of the draft new and
modified NWPs in the Federal Register for a 45-day comment period, with
concurrent public notices issued by Corps district offices to solicit
comments on draft Corps regional conditions for these NWPs. Comments
addressing the draft new and modified NWPs, general conditions, and
definitions should be sent to HQUSACE, at the address cited in the
ADDRESSES section of this Federal Register notice. Comments addressing
draft Corps regional conditions should be sent to the appropriate Corps
district office. After this 45-day comment period, we will review the
comments concerning the proposed NWPs that were received in response to
this Federal Register notice, each district will review the comments
concerning their final draft regional conditions that were received in
response to their public notices, and Corps divisions will complete the
supplemental decision documents for the Corps regional conditions. On
October 22, 1999, the Corps will announce the issuance of the final new
and modified NWPs in the Federal Register to begin the final 60-day
State and Tribal Section 401 water quality certification and Coastal
Zone Management Act (CZMA) consistency determination processes.
Concurrent with the publication of the final new and modified NWPs in
the Federal Register, each Corps district will publish a public notice
announcing their final Corps regional conditions for the new and
modified NWPs, so that the 401 and CZMA agencies can make their
decisions based on the new and modified NWPs and the Corps regional
conditions. After this 60-day 401/CZMA
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period, the new and modified NWPs and Corps regional conditions will
become effective.
BILLING CODE 3710-92-P
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[GRAPHIC] [TIFF OMITTED] TN21JY99.000
BILLING CODE 3710-92-C
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The proposed new and modified NWPs will help implement the
President's Wetlands Plan, which was issued by the White House Office
on Environmental Policy on August 23, 1993. A major goal of this plan
is that Federal wetlands protection programs be fair, flexible, and
effective. To achieve this goal, the Corps regulatory program must
continue to provide effective protection of wetlands and other aquatic
resources and avoid unnecessary impacts to private property, the
regulated public, and the aquatic environment. The proposed new and
modified NWPs will more clearly address individual and cumulative
adverse effects on the aquatic environment, ensure that those adverse
effects are minimal, address specific applicant group needs, and
provide more predictability and consistency to the regulated public.
Throughout the development of these NWPs, the Corps recognized the
concerns of the natural resource agencies and environmental groups for
the potential adverse effects on the aquatic environment resulting from
activities authorized by these NWPs and the regulated public's need for
certainty and flexibility in the NWP program.
Electronic Access and Filing Addresses
You may submit comments by sending electronic mail (e-mail) to:
[email protected]
Submit electronic comments as an ASCII file and avoid the use of
any special characters and any form of encryption. Identify all
electronic comments by including the phrase ``Draft 1999 NWPs'' in the
subject line of electronic mail messages. Comments sent as attachments
to electronic mail messages should be in ASCII format to ensure that
those attachments can be read by HQUSACE.
Discussion of Public Comments
I. Overview
Approximately 10,000 comments were received in response to the July
1, 1998 Federal Register notice, district public notices, and national
and regional public hearings. The Corps reviewed and fully considered
all comments received in response to the July 1, 1998, Federal Register
notice. Most of these comments were in opposition to the proposed NWPs.
Less than 300 commenters were in favor of the proposed new and modified
NWPs. A number of commenters stated that NWP 26 is currently working
well and does not need to be replaced. Of the 10,000 comments,
approximately 8,000 were form letters and postcards that provided no
substantive or constructive comments. Members of environmental groups
and development groups were typically in opposition to the proposed new
and modified NWPs. The environmental community opposed the proposed
NWPs, asserting they would allow too much impact on the aquatic
environment. The development community opposed the proposed NWPs,
asserting they are too restrictive on the regulated public. Many
commenters provided specific comments, recommending changes to the
NWPs, general conditions, and definitions. A few commenters provided
comments relating to 33 CFR Part 330, the regulations for the
implementation of the NWP program. It should be noted that the proposal
published in the July 1, 1998, Federal Register was a proposal to issue
new and modified NWPs and modify some NWP general conditions. We did
not propose any changes to 33 CFR Part 330. We have reviewed these
comments, but will not modify 33 CFR Part 330 at this time. Some
commenters suggested additional issues for the Corps to consider for
the NWP program. These new issues are discussed elsewhere in this
Federal Register notice.
On August 19, 1998, the Corps held a public hearing in Washington,
D.C. on the proposed NWPs. In addition to the national public hearing,
Corps division offices held 12 regional public hearings in other parts
of the country. The purpose of these public hearings was to provide
interested parties with another forum to comment on the proposed new
and modified NWPs. Transcripts from these public hearings were also
reviewed and considered for changes to the NWPs and general conditions.
The Corps received nearly 1,000 comments in response to the October
14, 1998, Federal Register notice. Many commenters objected to the
proposed additional restrictions to the NWP and some favored the
proposed changes. The comments received in response to the October 14,
1998, Federal Register notice are also discussed below.
II. General Comments
Most commenters opposed the new and modified NWPs, but many
commenters expressed support for the activity-based nature of the NWPs
and the balanced approach of the general conditions and preconstruction
notification (PCN) requirements. Some commenters stated that the NWPs
should be based on impacts, not activities. Some commenters considered
the proposed NWPs to be too restrictive, but the majority of commenters
believe that the proposed NWPs are too broad in scope. Many commenters
objected to the new and modified NWPs, because they authorize the loss
of up to 3 acres of wetlands without the opportunity for public
comment. A large number of commenters remarked that the proposed NWPs
and general conditions are too complex. Some of these commenters stated
that the complexity of the new and modified NWPs is contrary to the
goal of streamlining the Corps regulatory program. One commenter stated
that the Corps should revise NWP 26 to make it specific to the needs of
each state, instead of developing broad NWPs with national
applicability. Many commenters requested that the Corps extend the
comment period, due to the complexity of the proposal.
Commenters opposed to the issuance of the proposed NWPs stated that
the NWPs should be more restrictive. These commenters cited the fact
that the new NWPs apply to virtually all non-tidal waters of the United
States, which they believe results in less protection of the aquatic
environment. Many of these commenters stated that the Corps intent to
replace NWP 26 with NWPs that are more protective of the aquatic
environment is not accomplished by the proposed NWPs. These commenters
requested that the Corps withdraw the proposed new and modified NWPs
and develop NWPs that are more protective of aquatic resources. Some
commenters said that the environmental protection provided by the NWPs
will be reduced by the absence of review by the Corps and the absence
of site visits. Many commenters requested that the Corps modify the
proposed new NWPs to provide more protection for wetlands and small
streams. Several commenters stated that the proposed NWPs help promote
sprawl development by making it easier to fill wetlands.
We disagree with the assertion that the proposed new and modified
NWPs reduce protection of the aquatic environment. The terms and
conditions of these NWPs contain provisions that provide more
protection of aquatic resources. For example, NWPs 39 and 43 require
that prospective permittees submit a statement with the PCN describing
how impacts to waters of the United States have been avoided and
minimized and explaining why additional avoidance and minimization
cannot be achieved on the project site. In addition, some of the
proposed NWPs require compensatory mitigation to ensure that the
adverse effects of the authorized work on the aquatic environment are
minimal, a water quality management plan to protect the local aquatic
environment, especially downstream water quality, and
[[Page 39258]]
management of water flows to ensure that downstream flow conditions are
maintained and that the authorized work can withstand expected high
flows.
For the proposed new and modified NWPs, we have directed our
district offices to regionally condition these NWPs to provide
additional protection for high value waters. Most of these NWPs do not
authorize activities in non-tidal wetlands adjacent to tidal waters.
The proposed new and modified NWPs require submittal of a PCN to
the Corps for many activities authorized by those NWPs. We believe that
we have established PCN thresholds that will require Corps review of
any activity that has the potential to result in more than minimal
adverse effects on the aquatic environment, individually or
cumulatively. District engineers will review these activities to ensure
that they comply with the terms and conditions of the NWPs and result
in minimal adverse effects on the aquatic environment. District and
division engineers can lower PCN thresholds when necessary to review
additional projects. Through the PCN process, district engineers can
add case-specific conditions and require compensatory mitigation to
further protect the aquatic environment and replace aquatic resource
functions and values that are lost as a result of the authorized work.
The PCNs will also allow district engineers to monitor the cumulative
adverse effects of activities authorized by NWPs. The new NWPs do not
promote sprawl development. Zoning and land use are the
responsibilities of State, Tribal, and local governments. If the
construction of a new development involves the discharge of dredged or
fill material into waters of the United States, the NWPs can be used to
satisfy Section 404 permit requirements, provided the activity complies
with the terms and conditions of the NWPs and results in minimal
adverse effects on the aquatic environment. If the proposed work does
not comply with the NWPs, then a regional general permit, if
applicable, or an individual permit will be required.
Many commenters objected to the proposed NWPs, stating that these
NWPs are contrary to the Administration's Clean Water Action Plan
(CWAP). These commenters cited one of the goals of the CWAP, which is
to achieve a net gain of 100,000 acres of wetlands per year by 2005.
This goal of the CWAP will be achieved primarily through other
Federal programs, including the Wetland Reserve Program and the
Conservation Reserve Program of the U.S. Department of Agriculture
(USDA), the Corps environmental restoration programs, the Department of
Interior's Partners for Fish and Wildlife program, and the North
American Wetlands Conservation Act. Non-federal programs will also
contribute to this goal. USDA's programs are estimated to provide
125,000 to 150,000 acres of wetlands per year and the other Federal
programs are expected to provide an additional 40,000 to 60,000 acres
of wetlands per year toward this goal. The Corps regulatory program is
not expected to contribute substantial additional wetland acreage to
this CWAP goal, but the District Engineer may require compensatory
mitigation for activities authorized by NWPs to offset losses of waters
of the United States and ensure that the net adverse effects on the
aquatic environment are minimal. The Corps does expect to continue its
documented programmatic no net loss of wetlands approach to the
Regulatory Program.
A number of commenters stated that the proposed NWPs increase the
complexity of the NWP program, thereby decreasing efficiency and
flexibility. Many commenters assert that the proposed NWPs are too
restrictive and will increase the burden on the regulated public
because of the notification requirements and the difficulty in
interpreting these NWPs. A number of commenters stated that the
proposed NWPs will increase the processing time and workload for permit
applicants and the Corps.
We recognize that the proposed new and modified NWPs increase the
complexity of the NWP program, but we believe that this increase in
complexity is necessary to protect the aquatic environment while
authorizing activities with minimal adverse effects on the aquatic
environment in an efficient and effective manner. The proposed new and
modified NWPs will be used to prioritize workload in non-tidal waters.
In high value waters, additional protection will be provided by
regional conditioning or suspending or revoking certain NWPs if the use
of those NWPs would result in more than minimal adverse effects on the
aquatic environment. The NWPs will be used to efficiently authorize
activities in low value waters. It is likely that most project
proponents will design their projects to comply with the new and
modified NWPs rather than applying for authorization through the
individual permit process. The proposed new and modified NWPs, with the
three proposed NWP general conditions, will substantially increase
processing times and the Corps workload. Prohibiting the use of NWPs
21, 29, 39, 40, 42, 43, and 44 to authorize permanent, above-grade
fills in waters of the United States within the 100-year floodplain
will result in large increases in the number of individual permit
applications processed by the Corps.
Some commenters remarked that the proposed NWPs have taken on
elements of the individual permit review process, such as Section
404(b)(1) analysis, mitigation sequencing, and no net loss. One of
these commenters recommended replacing the proposed NWPs with NWPs that
authorize activities on a generic basis with specific limits but no
reporting requirements. One commenter recommended retaining NWP 26, but
modifying it to authorize activities below headwaters, because it would
be simpler than the proposed NWPs.
While there are some similarities between the individual permit
review process and the NWPs, there are also important differences.
General Condition 19 requires that permittees avoid and minimize losses
of waters of the United States on the project site to the maximum
extent practicable and states that the District Engineer can require
compensatory mitigation to offset losses of waters of the United States
that result from the authorized work to ensure that the adverse effects
on the aquatic environment are minimal. This general condition is
similar, but not identical to the Section 404(b)(1) analysis required
for Section 404 individual permits. It is important to note that an
off-site alternatives analysis is not required for activities
authorized by NWPs, or any other general permit. The Section 404(b)(1)
analysis required for individual permits requires analysis of off-site
alternatives to determine if a practicable, less environmentally
damaging, alternative exists to the proposed work on the original site.
To replace NWP 26 with NWPs that authorize activities on a generic
basis would be contrary to Section 404(e) of the Clean Water Act.
Activities authorized by general permits, including NWPs, must be
similar in nature and result only in minimal adverse effects on the
aquatic environment, individually or cumulatively. Each of the proposed
new and modified NWPs is activity-specific, authorizing activities that
are similar in nature. Removing the reporting requirements from the new
and modified NWPs would increase the probability that the NWPs would be
used to authorize activities that result in more than minimal adverse
effects on the aquatic environment. District
[[Page 39259]]
engineers utilize the PCN process to review proposed activities to
determine if they comply with the terms and conditions of the NWPs,
including the statutory requirements of Section 404(e). The only way
the Corps can issue an NWP without PCN requirements would be to lower
the acreage limit to an extremely low level to ensure that all
activities authorized by the NWP would result in minimal adverse
effects on the aquatic environment. This would substantially reduce the
utility of the NWPs, result in unacceptable increases in the number of
individual permits for minor activities processed by the Corps, and
severely limit the effectiveness and utility of the NWP program.
Modifying NWP 26 to authorize activities below headwaters would not
accomplish the intent of the new and modified NWPs because such a
modification of NWP 26 may not satisfy the statutory requirements of
Section 404(e). One of the criticisms of NWP 26 is that many people
believe that it does not satisfy the ``similar in nature'' requirement
of Section 404(e) of the Clean Water Act. We believe that the activity-
specific new and modified NWPs clearly satisfy all of the requirements
of Section 404(e).
One commenter stated that the proposed NWPs change a goal of the
Section 404 program from one of ``no net loss'' of wetlands to one of
``no net loss of aquatic resource functions and values.'' This
commenter also said that focusing on the effects of non-point source
discharges on water quality is the responsibility of the states, not
the Corps. A couple of commenters stated that, in the July 1, 1998,
Federal Register notice, the Corps is inappropriately expanding the
Administration's ``no net loss'' goal for wetlands to other types of
waters of the United States. These commenters believe that this
expansion should be subject to public comment instead of including it
with the proposed new and modified NWPs. One of these commenters
objected to requiring compensatory mitigation for losses of non-wetland
waters of the United States and that the Corps should focus only on
achieving the goal of ``no net loss'' of wetland acreage. This
commenter also objected to applying the ``no net loss'' goal to a
watershed basis instead of to the nation as a whole. Some commenters
recommended that the final NWPs contain a statement that the ``no net
loss'' principle is applicable only for wetlands and that compensatory
mitigation for losses of other types of waters of the United States
should only be required to ensure that the authorized work, with
compensatory mitigation, results in minimal adverse effects on the
aquatic environment. Another commenter recommended that ``no net loss''
should be required for the NWP program.
Although one of the Administration's five principles for Federal
wetlands policy is the goal of no net loss of wetlands, it is important
to consider the functions and values of wetlands, as well as other
aquatic resources. The Section 404 program has always regulated
activities in all waters of the United States, not just wetlands.
Streams and other open water habitats are extremely important
components of the aquatic environment, and are as important as
wetlands. The proposed new and modified NWPs place a greater emphasis
on open waters to provide those areas with the additional protection
that we believe is warranted. It is also important to remember the
goals of the Clean Water Act and the importance of Section 404 in
meeting those goals. Indeed, the Corps authority to regulate and
protect open waters is clearer within the statutory framework than our
authority to regulate wetlands. For instance, as a condition of a
Section 404 permit, the Corps can require vegetated buffers adjacent to
streams to offset adverse effects of the authorized activity on water
quality.
Although certain statements in the July 1, 1998, Federal Register
notice appear to expand the Administration's goal of no overall net
loss of the Nation's remaining wetlands to other waters of the United
States, such as streams, it is important to note that wetlands are only
one component of the overall aquatic environment. By requiring
compensatory mitigation for activities in other aquatic areas, such as
streams, we are providing better overall protection for the aquatic
environment. For the NWP program, the purpose of compensatory
mitigation is to ensure that the authorized activities result in
minimal adverse effects on the aquatic environment, individually or
cumulatively, not to achieve ``no net loss'' of wetland acreage.
Compensatory mitigation may be required by district engineers for
losses of any type of water of the United States, not just wetlands.
Such compensatory mitigation requirements do help contribute to the
``no net loss'' of wetlands goal, but in some cases district engineers
may determine that compensatory mitigation is unnecessary because the
adverse effects of the authorized work are minimal, without
compensatory mitigation. It is important to note that NWP compensatory
mitigation requirements are not driven by the ``no net loss'' goal, but
will help support that goal. For the NWP program, the need for
compensatory mitigation is assessed on a case-by-case basis and a
watershed basis, not a national basis, to ensure that the NWPs
authorize only those activities that have minimal adverse effects on
the aquatic environment, individually or cumulatively. The programmatic
goal of no net loss of wetlands is embodied in several Corps guidance
documents, including former NWP issuance documents. The underlying
principle is that the Corps will require compensatory mitigation to
offset functions and values of aquatic resources, including wetlands,
that are lost as a result of permit actions. Within the NWP program,
the Corps will require compensatory mitigation to offset losses of
functions and values of aquatic resources, including wetlands, to the
extent that the NWPs authorize activities with no more than minimal
adverse effects on the aquatic environment. On a watershed basis, this
will normally result in no net loss of any important aquatic functions,
not just wetlands.
One commenter requested that the Corps regulations should be
consolidated as part of the proposed changes to the NWPs, because the
Corps and the regulated public must consult multiple Federal Register
notices for changes that have occurred over the past 12 years since the
last consolidated rule was published. Another commenter stated that the
Wetland Delineator Certification Program (WDCP) should be finalized to
increase efficiency of the Corps regulatory program. Several commenters
objected to the proposed NWPs because they authorize activities that
are not water dependent.
The proposal to issue new and modified NWPs and general conditions
does not constitute rulemaking. The current NWP regulations were issued
on November 22, 1991, and the purpose of the proposal published in the
Federal Register on July 1, 1998, is merely to issue and modify NWPs in
accordance with the regulations at 33 CFR Part 330. The public can
obtain a copy of the consolidated Corps regulations at 33 CFR Parts 320
to 330 by purchasing a copy of the appropriate Code of Federal
Regulations published annually by the U.S. Government Printing Office
or obtain a copy through the Internet at http://www.access.gpo.gov/
nara/index.html#cfr. The Corps has not finalized the WDCP and has not
determined when the program will be implemented.
On a case-by-case basis, NWP activities are not subject to the
requirements for a Section 404(b)(1) alternatives analysis, including
the
[[Page 39260]]
water dependency test. General Condition 19 of the NWPs requires
permittees to avoid impacts to the aquatic environment on-site to the
extent practicable. However, no off-site alternatives test is ever
conducted for any general permit activity, including NWPs. In addition,
the water dependency test in the Section 404(b)(1) Guidelines does not
require that all activities in waters of the United States must be
water dependent to fulfill its basic project purpose (see 40 CFR Part
230.10(a)(3)). The vast majority of all activities permitted by the
Corps are not water dependent. NWPs can authorize activities in special
aquatic sites, provided they result in minimal adverse effects on the
aquatic environment, individually or cumulatively, and impacts to the
aquatic environment have been avoided on-site to the extent
practicable.
One commenter stated that the acreage limits and PCN thresholds for
the NWPs should be more consistent. Another commenter recommended that
the acreage limits for the NWPs should be \1/2\ or 1 acre and 200
linear feet of stream bed. A third commenter suggested an acreage limit
of \1/4\ acre for all NWPs. One commenter recommended that the Corps
decrease the acreage limits of the new NWPs because permittees will
reduce the scope of work to comply with those lower acreage limits,
resulting in better protection of the environment and reducing wetland
losses.
We disagree that the acreage limits for the NWPs should be the
same, but we have made the PCN thresholds more consistent by changing
the PCN threshold to \1/4\ acre for most of the new and modified NWPs.
For open and flowing waters, the PCN requirements will still vary among
these NWPs. We also disagree with imposing an upper limit for linear
feet of stream impacts. We have changed the prohibition against filling
greater than 500 linear feet of stream under NWP 26 to a PCN
requirement. NWP 39 has a PCN requirement for any discharges into open
waters, including streams. The PCN requirement for impacts to stream
beds will allow district engineers to review those projects to ensure
that they result only in minimal adverse effects on the aquatic
environment. Division engineers can also regionally condition NWPs to
lower the acreage limits and PCN thresholds. Although many project
proponents will design their projects to comply with the terms and
conditions of the NWPs, there is a lower limit where such incentives no
longer work and it would be more cost effective for the regulated
public to pursue individual permits, which may result in even greater
adverse effects on the aquatic environment. With the proposed new and
modified NWPs, we believe that we have developed NWPs that balance
environmental protection with development activities by providing the
districts with the ability to use NWPs to authorize most activities
with minimal individual or cumulative adverse effects on the aquatic
environment while protecting high value areas with regional conditions.
Expiration of Nationwide Permit 26
In the July 1, 1998, Federal Register notice, we proposed to change
the expiration date of NWP 26 from December 13, 1998, to March 28,
1999. Many commenters objected to the proposed extension of the
expiration date for NWP 26. A number of commenters requested that the
Corps retain NWP 26 until the proposed new and modified NWPs become
effective. Other commenters suggested that the Corps change the
expiration date of NWP 26 to February 11, 2002, to continue to
authorize projects that will not be authorized by the new and modified
NWPs. One commenter expressed concern about confusion resulting from
different expiration dates for the NWPs.
Due to changes in the schedule and process for developing and
implementing the new and modified NWPs to replace NWP 26, the Corps
announced in the October 14, 1998, issue of the Federal Register the
extension of the expiration date of NWP 26 to September 15, 1999, to
allow for additional public comment on the new and modified NWPs,
general conditions, and regional conditions. Since the proposed new and
modified NWPs and regional conditions will not become effective before
September 15, 1999, we have decided to extend the expiration date of
NWP 26 to December 30, 1999, or the effective date of the new and
modified NWPs, whichever occurs first, to allow the continued use of
NWP 26 until the new and modified NWPs become effective. Extending the
expiration date of NWP 26 until the effective date of the new and
modified NWPs is necessary to ensure fairness to the regulated public
by continuing to provide an NWP for activities with minimal adverse
effects in headwaters and isolated waters until the new activity-
specific NWPs become effective. If the expiration date of NWP 26 is not
extended, most project proponents would have to apply for individual
permits, although some activities may be authorized by other NWPs or
regional general permits. For those activities with minimal adverse
effects on the aquatic environment, it would be unfair and
unnecessarily burdensome on the regulated public to require an
individual permit.
We will not extend the expiration date of NWP 26 to February 11,
2002, to authorize those activities that do not qualify for the new and
modified NWPs. Such action would be contrary to our intent, which is to
replace NWP 26 with activity-specific NWPs. However, the Corps does not
intend to allow a lapse in time to occur between the effective date of
the new and modified NWPs and the expiration date of NWP 26. Activities
that were previously authorized by NWP 26, but could not be authorized
by the proposed new and modified NWPs may be authorized by individual
permits, other NWPs, or regional general permits.
In response to the October 14, 1998, Federal Register notice, a
large number of commenters supported the extension of the expiration
date of NWP 26, but a few commenters objected to the time extension.
Several commenters stated that the Corps should not set a specific
expiration date for NWP 26, to ensure that it is available until the
new and modified NWPs become effective. A number of commenters said
that the October 14, 1998, Federal Register notice was unclear as to
whether the expiration date for NWP 26 is extended to September 15,
1999; it appeared to these commenters that the new expiration date was
published for public comment. One of these commenters requested that
the Corps clearly state in this Federal Register notice the new
expiration date for NWP 26. Two commenters expressed concern about the
expiration of NWP 26 authorizations for projects which already have
been authorized by this NWP.
The expiration date for NWP 26 was changed to September 15, 1999,
as announced in the October 14, 1998, Federal Register notice. The new
expiration date was not subject to public comment in that notice. It is
necessary to set a firm expiration date for NWP 26 to minimize
confusion for the regulated public during the process of developing and
implementing the new and modified NWPs.
In accordance with 33 CFR Part 330.6(b), permittees with a valid
NWP 26 authorization have up to one year to complete the authorized
work, provided they start the work or are under contract to do the work
prior to the expiration of the NWP. This provision of the NWP
regulations is not affected by the proposed new and modified NWPs. Any
activities authorized by NWP 26 that have not commenced or are not
under
[[Page 39261]]
contract prior to the expiration of NWP 26 must be reauthorized by
another NWP, a regional general permit, or an individual permit. Some
of these projects may be authorized by the proposed new and modified
NWPs, provided those projects meet the terms and conditions of those
NWPs.
State, Tribal, and EPA Section 401 Certification of the NWPs
One commenter stated that the Corps denial of an NWP authorization
based on the denial of the Section 401 water quality certification
(WQC) by States, Tribes, or EPA prevents applicants from pursuing an
individual permit. According to the commenter, applicants are required
to obtain an individual, project-specific WQC. A number of commenters
objected to the Corps practice of issuing provisional NWP verifications
where WQC has been denied by the State, Tribe, or EPA. One commenter
stated that NWPs should not be used in states where WQC has been denied
or the NWP activity is determined to be inconsistent with the State's
Coastal Zone Management Act (CZMA) plan. These commenters believe that
individual permits should be required instead.
Denial of WQC for an NWP should not be the sole reason for
requiring individual permit review for activities that would otherwise
comply with the terms and conditions of the NWP. A denial of WQC by a
State, Tribe, or EPA for an NWP does not mean that the activities
authorized by that NWP will result in more than minimal adverse effects
on the aquatic environment. The WQC denial only indicates that the NWP
activity may not meet the water quality standards for that State or
Tribal land in all situations. For specific projects that meet the
water quality standards, the 401 agency can issue an individual WQC or
waive the WQC requirement. If a specific project does not meet the
water quality standards and the 401 agency denies WQC for that project,
then that particular project cannot be authorized by an NWP or an
individual permit unless the WQC is later issued or waived.
Although the Corps makes every effort to work closely with States,
Tribes, or EPA to facilitate Section 401 water quality certification
for activities authorized by NWPs, we have an obligation to the
regulated public to provide timely NWP authorizations for projects that
meet the terms and conditions of the NWPs and result in minimal adverse
effects on the aquatic environment, individually and cumulatively.
Therefore, if a project qualifies for NWP authorization, we should
issue a provisional NWP verification that is not valid until the
permittee obtains an individual WQC or CZMA consistency determination
or waiver and a copy is sent to the Corps. These provisional NWP
verifications indicate that the permittee cannot commence work until
the WQC or CZMA determination is obtained or waived.
The final WQC and CZMA determination processes for the new and
modified NWPs will begin with the publication of the Federal Register
notice announcing the issuance of the NWPs. This Federal Register
notice is scheduled to be published on October 22, 1999. Concurrent
with that Federal Register notice, Corps districts will publish public
notices announcing their final Corps regional conditions for the new
and modified NWPs. The 401 and CZMA agencies will have 60 days from the
date of that Federal Register notice to make their WQC or CZMA
consistency determinations for those NWPs.
Regional Conditioning of the Nationwide Permits
For the proposed new and modified NWPs, the Corps is placing
greater emphasis on regional conditioning. Regional conditioning is
necessary to ensure that the NWPs authorize only those activities with
minimal adverse effects on the aquatic environment, individually and
cumulatively.
A number of commenters supported the increased emphasis on regional
conditioning for the new and modified NWPs. Some of these commenters
recognize the importance of evaluating wetland impacts on a regional
and watershed basis. One commenter stated that since hydrologic,
geologic, and other environmental characteristics vary across the
country, regional conditions are necessary because an inflexible
regulatory approach to managing waters of the United States is
ineffective. This commenter said that regional conditions provide the
flexibility to effectively manage waters of the United States, based on
their particular environmental characteristics.
Many commenters expressed opposition to the increased emphasis on
regional conditions for the proposed new and modified NWPs. Some
commenters recommended that the Corps eliminate regional conditioning
from the NWP program. Two commenters said that regional conditions are
unnecessary because the NWPs can only authorize activities with minimal
adverse effects on the aquatic environment. Another commenter stated
that regional conditions are unnecessary because district engineers can
place special conditions on NWP authorizations on a case-by-case basis.
One commenter stated that regional conditions are unnecessary because
Federal regulations require that general permits must be based on
activities, not types of waters. A couple of commenters objected to the
approach presented in the July 1, 1998, Federal Register notice,
because it treats regional conditioning as the rule, not the exception.
One commenter stated that regional conditioning should not be required
of all districts, because some districts may not need them.
Regional conditioning of the proposed new and modified NWPs is
necessary to ensure that these NWPs authorize only those activities
that result in no more than minimal adverse effects on the aquatic
environment, a requirement of Section 404(e) of the Clean Water Act.
Regional conditions are necessary because the national terms and
conditions of the NWPs are established to authorize most activities
that result in no more than minimal adverse effects on the aquatic
environment, individually or cumulatively. For particular regions of
the country or specific waterbodies where additional safeguards are
necessary to ensure that the NWPs satisfy the statutory requirements
for general permits, regional conditions are the appropriate mechanism.
Case-specific discretionary authority or special conditions cannot act
as surrogates for regional conditions in many cases, especially for
those NWP activities that do not require notification to the District
Engineer. For example, regional conditions can restrict the use of NWPs
in high value waters for those activities that do not require
submission of a PCN. Although the proposed NWPs are activity-specific,
regional conditions are necessary to protect high value waters to
ensure that the NWPs do not authorize activities that result in more
than minimal adverse effects on the aquatic environment. We believe
that all districts have high value waters that should be subject to
regional conditioning.
A substantial number of commenters asserted that regional
conditioning of the NWPs greatly reduces the flexibility of the NWPs,
making them more complicated, less useful, and too restrictive. Many of
these commenters stated that regional conditioning of the NWPs
undermines the intent of Section 404(e) of the Clean Water Act, by
making the NWPs more like individual permits. They also said that
regional conditions would unnecessarily and substantially increase
burdens on the regulated public. A number of
[[Page 39262]]
commenters stated that regional conditioning of the NWPs offsets any
benefits in regulatory streamlining the NWPs are intended to provide.
Several commenters stated that regional conditioning of the NWPs will
increase the Corps workload, because there will be more projects that
cannot qualify for NWP authorization.
Although regional conditions may increase the complexity of the
NWPs and reduce their applicability, it is important to remember that
NWPs are optional permits, and if the project proponent does not want
to comply with all of the terms and conditions of an NWP, including
regional conditions, then he or she can apply for authorization through
the individual permit process. Regional conditioning of the NWPs is
likely to increase the Corps workload, but we believe that such
increases are manageable. Division engineers will review the regional
conditions proposed by Corps districts and ensure that any regional
conditions that are adopted will ensure that the Corps workload will be
prioritized to increase protection of the aquatic environment.
A number of commenters objected to the regional conditioning
process and wanted to reserve their comments on the proposed new and
modified NWPs until they have had the opportunity to review the
proposed regional conditions. Many commenters requested that the Corps
provide the regulated community an opportunity to comment on the
regional conditions after the new and modified NWPs are issued. Several
commenters suggested that the Corps allow an additional 60 days to
complete the regional conditions to allow full public participation and
comment. Some commenters recommended that the Corps publish the
regional conditions in the Federal Register and provide the public with
an additional opportunity to comment on the regional conditions. A
number of commenters stated that the process for developing regional
conditions is vague and confusing and that clear guidance is needed to
assist districts in developing regional conditions. One commenter
stated that the national NWP terms and conditions should be established
after regional conditioning is completed.
We agree that the public should have another opportunity to comment
on the complete NWP package, including the NWPs, general conditions,
definitions, and Corps regional conditions. The process for issuing the
proposed new and modified NWPs and Corps regional conditions has been
changed from the process announced in the October 14, 1998, Federal
Register notice. Concurrent with today's Federal Register notice, each
Corps district will issue a public notice announcing draft regional
conditions for a 45-day comment period. Therefore, the public will have
45 days to provide comments on both the draft new and modified NWPs and
the draft Corps regional conditions. We have provided Corps divisions
and districts with guidance concerning the regional conditioning
process to facilitate the development and implementation of regional
conditions. We do not agree that the national terms and limits for the
NWPs should be established after the Corps regional conditions are
finalized because the terms and limits of the NWPs must be first
established nationally, so that division engineers can issue Corps
regional conditions that account for regional differences in aquatic
resource functions and values and provide additional protection for the
aquatic environment. Regional conditions make the NWPs more restrictive
where necessary to ensure that those NWPs authorize only activities
with minimal adverse effects on the aquatic environment.
Several commenters said that division and district engineers should
be able to use regional conditioning to make the NWPs less restrictive,
as well as more restrictive. Two commenters asserted that the Corps
regulations at 33 CFR Part 330.1(d) specifically state that division
and district engineers can condition or further restrict NWPs only when
they have concerns for the aquatic environment under the Section
404(b)(1) Guidelines or for any other factor of the public interest.
Another commenter recommended that the Corps institute a procedure
whereby a permit applicant could request Corps headquarters review of a
specific regional condition for consistency with general Corps
regulatory policy. This commenter expressed concern that the regional
conditioning process would create arbitrary inconsistencies in the
implementation of the Corps regulatory program between Corps districts.
Two commenters stated that Corps regional conditions for the NWPs
should not duplicate the states' authority under Sections 401 and 402
of the Clean Water Act. Another commenter expressed concern that the
regional conditions would not completely protect waters that need
special protection and recommended that the Corps conduct advanced
identification of those high value areas. One commenter opposed the
principle that regional conditions can restrict the use of NWPs in
areas covered by Special Area Management Plans (SAMPs).
Division and district engineers cannot use regional conditioning to
make the NWPs less restrictive. Only the Chief of Engineers can modify
an NWP to make it less restrictive, if it is in the national public
interest to do so. Such a modification must go through a public notice
and comment process. However, if a Corps district believes that
regional general permits are necessary for activities not authorized by
NWPs, then that district can develop and implement regional general
permits to authorize those activities, as long as those regional
general permits comply with Section 404(e) of the Clean Water Act. We
do not believe that it is necessary to establish a procedure for
headquarters review of regional conditions. Division engineers will
review proposed regional conditions and approve only those regional
conditions that are necessary to ensure that the NWPs authorize only
activities with minimal adverse effects on the aquatic environment. We
have provided division and district offices with guidance addressing
regional conditioning of NWPs. In general, Corps regional conditions
should not duplicate State Clean Water Act Section 401 or 402
authorities, but regional conditions can address concerns for the
aquatic environment that may also be related to water quality or non-
point sources of pollution. The public notice process for regional
conditions, especially the process used for the new and modified NWPs,
can help the Corps identify specific waterbodies that should be subject
to regional conditions. The public had the opportunity, through
district public notices, to recommend specific high value waterbodies
that should receive additional protection. In some cases, it is
appropriate to restrict or prohibit the use of NWPs in areas subject to
SAMPs. In areas where SAMPs are conducted, general permits are often
developed and issued to provide Section 404 and Section 10
authorization for activities within the area covered by the SAMP.
Restricting or prohibiting the use of NWPs within the SAMP area is
often necessary to ensure that the SAMP is properly implemented.
Numerous commenters suggested that regional conditions must be
consistent between Corps districts within the same state. Another
commenter recommended that regional conditions should be consistent
between all Corps districts. One commenter observed that regional
conditions being developed by districts in initial public notices for
the new and modified NWPs are highly variable and emphasized the need
for
[[Page 39263]]
stronger national terms and conditions. This commenter believes that
inconsistencies between Corps districts with regard to regional
conditions will be severe and unacceptable. One commenter requested
that for companies operating throughout the country, regional
conditions must be consistent between districts.
There may be certain regions within a particular state, such as
specific high value waterbodies, that warrant regional conditions that
are not necessary in other areas of that state. Consistency in regional
conditions across the country is contrary to the purpose of the
regional conditioning process, which is to consider local differences
in aquatic resource functions and values to ensure that the NWPs do not
authorize activities with more than minimal adverse effects on the
aquatic environment. Companies that work in more than one district will
have to comply with the regional conditions established in each
district.
The draft regional conditions are currently available for public
review on the Internet at the following home pages:
North Atlantic Division
Baltimore District: http://www.nab.usace.army.mil/permits/
regionalconditions.htm
New England District: http://www.nae.usace.army.mil/environm/regl.htm
New York District: http://www.nan.usace.army.mil/business/buslinks/
regulat/index.htm#PNotices
Norfolk District: http://www.nao.usace.army.mil/Regulatory/PN/PN.html
Philadelphia District: http://www.nap.usace.army.mil/cenap-op/
regulatory/regulatory.htm
South Atlantic Division
Charleston District: http://www.sac.usace.army.mil/permits
Jacksonville District: http://www.saj.usace.army.mil/permit/index.html
Mobile District: http://www.sam.usace.army.mil/sam/op/reg/almscat.htm
Savannah District: http://www.sas.usace.army.mil/regcond.htm
Wilmington District: http://www.saw.usace.army.mil/wetlands/regtour.htm
Great Lakes and Ohio River Division
Buffalo District: http://www.lrb.usace.army.mil/orgs/offices/form.htm
Chicago District: http://www.usace.army.mil/lrc/co-r/index.htm
Detroit District: http://huron.lre.usace.army.mil/regu/dtwhome.html
Huntington District: http://www.lrh-opr-nt.orh.usace.army.mil/permits/
Nationwide/nation.html
Louisville District: http://www.lrl.usace.army.mil/orf/nw/nw.html
Nashville District: http://www.orn.usace.army.mil/cof/notices.htm
Pittsburgh District: http://www.LRP.usace.army.mil/OR-F/permits.html
Mississippi Valley Division
Memphis District: http://www.mvm.usace.army.mil/regulatory/public-
notices/public__notices.htm
New Orleans District: http://www.mvn.usace.army.mil/ops/regulatory/ Rock Island District: http://www.mvr.usace.army.mil/regulatory/
nationwidepermits.htm
St. Louis District: http://www.mvs.usace.army.mil/permits/pn.htm
St. Paul District: http://www.mvp.usace.army.mil/regulatory/
regulatory.html
Vicksburg District: http://www.mvk.usace.army.mil/odf/regs/
nwpconditions.htm
Southwestern Division
Fort Worth District: http://155.84.60.1/current/current.htm
Galveston District: http://www.swg.usace.army.mil/news.htm
Little Rock District: http://www.swl.usace.army.mil/regulatory/
ceal.html
Tulsa District: http://www.swt.usace.army.mil/whatishot/whatishot.htm
Northwestern Division
Kansas City District: http://www.nwk.usace.army.mil/conops/
regulatory.htm
Omaha District: http://www.nwo.usace.army.mil/html/op-r/webpg.htm
Portland District: http://www.nwp.usace.army.mil/op/g/regulatory.htm
Seattle District: http://www.nws.usace.army.mil/reg/reg.htm
Walla Walla District: http://www.nww.usace.army.mil/html/offices/op/rf/
cond2.htm
South Pacific Division
Albuquerque District: http://www.spa.usace.army.mil/reg/localnot.htm
Los Angeles District: http://www.spl.usace.army.mil/co/co5.html#reg
Sacramento District: http://www.spk.usace.army.mil/cespk-co/regulatory/
San Francisco District: http://www.spn.usace.army.mil/regulatory/
Pacific Ocean Division
Alaska District: http://www.usace.army.mil/alaska/co/conops1.htm
Honolulu District: http://www.pod.usace.army.mil/news/newsrel.html
Please note that the regional conditions posted on these Internet
home pages are the current draft Corps regional conditions, and that
there are likely to be changes to the Corps regional conditions based
on the comments received in response to district public notices.
Compliance With Section 404(e) of the Clean Water Act
A large number of commenters stated that the proposed NWPs are in
violation of Section 404(e) of the Clean Water Act because they believe
that the proposed NWPs do not authorize activities that are similar in
nature. Section 404(e) stipulates two statutory criteria for general
permits, including the NWPs: (1) the activities authorized by a general
permit must be similar in nature, and (2) those activities must result
in minimal adverse environmental effects, individually or cumulatively.
Many of these commenters asserted that the proposed NWPs 39, 42, and
44, as well as additional activities authorized by the proposed
modifications of NWPs 12 and 40, violate the provisions of Section
404(e) because they lack precise descriptions of authorized activities
and the descriptions for these NWPs included in the July 1, 1998,
Federal Register notice were too broad to be similar in nature and
environmental impact. Many commenters stated that the proposed new and
modified NWPs authorize activities with more than minimal adverse
effects on the aquatic environment. Some commenters stated that the
Corps has not adequately assessed the individual and cumulative adverse
environmental effects of the new and modified NWPs in accordance with
33 CFR Part 320 and 40 CFR Part 230.
When considering whether or not an NWP complies with the ``similar
in nature'' criterion of Section 404(e), it is important not to
constrain this criterion to a level that makes the NWP program too
complex to implement or makes a particular NWP useless because it
[[Page 39264]]
would authorize only a small proportion of activities that result in
minimal adverse effects on the aquatic environment. Developing NWPs
with extremely precise and restrictive language to satisfy the
environmental community's definition of the term ``similar in nature''
would result in a large number of NWPs that would make the NWP program
excessively complex and burdensome, without any added protection to the
aquatic environment. It appears that most critics of the NWPs believe
that activities authorized by an NWP must be identical to each other to
satisfy Section 404(e). We believe that the term ``similar in nature''
is intended to have a more practical definition. The word ``similar''
does not have the same meaning as the word ``identical.'' We believe
that the proposed new and modified NWPs, which are activity-specific,
authorize only activities that are similar in nature in the broader,
and the more practical, definition of the word ``similar.'' We agree
that proposed NWP A may not have satisfied the ``similar in nature''
requirement of Section 404(e) because of the wide range of authorized
activities listed in the text of the proposed NWP. Therefore, we have
proposed to modify the description of activities authorized by this NWP
(designated as NWP 39) to limit the NWP to the construction of building
pads or foundations and attendant features necessary for the operation
and use of the building constructed on the pad or foundation. We
believe that NWP 39 authorizes only activities that are similar in
nature (i.e., the construction of buildings and features necessary for
their operation and use) and have minimal adverse effects on the
aquatic environment. We believe that each of the other new and modified
NWPs proposed in this Federal Register notice authorize only activities
that are similar in nature.
During the development of these NWPs, the Corps has complied with
all applicable laws and regulations, especially 33 CFR Parts 320
through 330 and 40 CFR Part 230. For those new and modified NWPs that
are issued, the Corps will prepare Environmental Assessments,
Statements of Finding, and, where applicable, Section 404(b)(1)
Compliance reviews. These documents will address how these NWPs comply
with the public interest review criteria in 33 CFR part 320 and the
Section 404(b)(1) impact analysis criteria in 40 CFR part 230. To
further ensure that the NWPs authorize only activities with minimal
adverse effects on the aquatic environment, the NWP general conditions
address specific concerns relating to the NWP program, such as
compliance with the Endangered Species Act and the National Historic
Preservation Act. Most NWPs require a Section 401 water quality
certification to ensure that the authorized activities meet State or
Tribal water quality standards. In coastal areas, most NWPs require a
coastal zone consistency determination to comply with Section 307 of
the Coastal Zone Management Act. Activities that require a permit
pursuant to Section 103 of the Marine Protection, Research, and
Sanctuaries Act of 1972 are not authorized by NWPs.
In accordance with Section 404(e) of the Clean Water Act, the NWPs
cannot authorize activities that result in more than minimal adverse
effects on the aquatic environment, individually or cumulatively. For
those activities that may result in more than minimal adverse effects
on the aquatic environment, division or district engineers will assert
discretionary authority (see 33 CFR 330.4(e) and 33 CFR 330.5(c) and
(d)), and notify the applicant that the proposed activity is not
authorized by NWP. Therefore, the NWPs comply with 40 CFR 230.1(c) and
230.7(a)(3). The factual determination requirements of 40 CFR 230.11
will also be addressed in the decision document for each NWP. These
decision documents will include estimates of the discharges anticipated
to be authorized by the NWP that are required pursuant to 40 CFR
230.7(b)(3).
General Condition 19 of the NWPs satisfies the requirements of 40
CFR 230.10(d). This general condition requires that permittees avoid
and minimize adverse effects on the aquatic environment on-site to the
maximum extent practicable. If the adverse effects of the proposed work
on the aquatic environment are more than minimal, then the District
Engineer will exercise discretionary authority and the project cannot
be authorized by NWP, unless it is modified to reduce the adverse
effects and comply with all of the requirements of the NWP.
One commenter stated that the Corps increased emphasis on regional
conditioning of the NWPs is an acknowledgment that activities
authorized by NWP have the potential of resulting in more than minimal
adverse effects on the aquatic environment. This commenter objected to
the Finding of No Significant Impact (FONSI) issued on June 23, 1998,
stating that the FONSI is based on regional conditions which have not
yet been proposed. Several commenters objected to the position that the
adverse effects on the aquatic environment authorized by the NWPs will
be minimal because they authorize only relatively small losses of
waters of the United States and in many cases require compensatory
mitigation for those losses. These commenters state that small wetlands
often have significant values (e.g., prairie potholes provide waterfowl
habitat) and that compensatory mitigation is often ineffective in
replacing those values. They also stated that there is insufficient
qualitative or quantitative analysis concerning environmental
consequences of the new and modified NWPs.
The NWPs authorize activities that, under most circumstances,
result in minimal adverse effects on the aquatic environment. The Corps
has always acknowledged that some activities that could potentially be
authorized by NWPs may have more than minimal adverse effects on the
aquatic environment. The notification requirements for NWPs allow
district engineers the opportunity to review proposed activities that
have the potential for exceeding the minimal adverse effect threshold.
The provisions in the NWP regulations, specifically 33 CFR 330.4(e) and
33 CFR 330.5(c) and (d), allow district and division engineers to
exercise discretionary authority when specific activities result in
more than minimal adverse effects on the aquatic environment and
require an individual permit for those activities. Discretionary
authority also allows division and district engineers to place
conditions on NWPs to ensure that the NWPs authorize only those
activities that have minimal adverse effects on the aquatic
environment. Division engineers can also place regional conditions on
the NWPs. In specific high value waterbodies or wetland types, regional
conditions can restrict the use of NWPs in those waters by lowering
acreage limits or notification thresholds. Regional conditions can also
prohibit the use of NWPs in high value waters. District engineers can
place case-specific special conditions on NWP authorizations. The FONSI
issued on June 23, 1998, merely reiterates the fact that the regional
conditioning process helps ensure that the NWPs authorize only those
activities that result in minimal adverse effects on the aquatic
environment.
We recognize that there has been, and continues to be, substantial
interest among the public regarding the potential environmental effects
associated with the implementation of the NWP program. With the last
reissuance of the NWPs in December 1996, we reemphasized our commitment
to improve data collection
[[Page 39265]]
and monitoring efforts associated with the NWP program, and NWP 26 in
particular. In many instances, these efforts have already provided
critical information on the use of the NWPs, overall acreage impacts,
affected resource types, the geographic location of the activities, and
the type of mitigation provided. This information is critical in our
efforts to make well-informed permitting and policy decisions regarding
the continued role of the NWP program and to ensure that the program
continues to authorize only those activities with minimal individual
and cumulative effects.
Compliance With the National Environmental Policy Act
Many commenters believe that the proposed new and modified NWPs do
not comply with the National Environmental Policy Act (NEPA). They
disagree with the Corps determination that the NWPs do not constitute a
major Federal action that significantly affects the quality of the
human environment. These commenters assert that the new and modified
NWPs will expand the direct, indirect, and cumulative adverse effects
of the NWPs, because these NWPs are applicable in a broader geographic
range of waters of the United States than NWP 26.
Many commenters addressed the preliminary environmental assessments
(EAs) for the new and modified NWPs and the FONSI issued on June 23,
1998. Several commenters believe that the Corps is making a circular
argument when it states that the NWPs do not constitute a major Federal
action because, by definition, the NWPs authorize only activities with
minimal individual or cumulative adverse effects on the aquatic
environment. They believe this conclusion is based on the definition of
a general permit, not on data from authorized impacts. They suggest
that the Corps consider the loss of wetlands over an extended time
period to evaluate the actual adverse effects on the aquatic
environment in specific terms, not generalities. One commenter
concurred with the Corps determination that the NWPs do not require an
Environmental Impact Statement (EIS). One commenter stated that an EIS
should be required prior to implementing the new and modified NWPs and
the EIS must include an economic analysis of the economic effects of
the NWPs. Another commenter said that to comply with NEPA, the Corps
must evaluate both wetlands and upland impacts for activities
authorized by NWPs.
NEPA requires Federal agencies to prepare an EIS only for major
Federal actions that have a significant impact on the quality of the
human environment. Even though we have committed to prepare a
Programmatic Environmental Impact Statement (PEIS) for the NWP program,
we continue to maintain our position that the NWP program does not
constitute a major Federal action significantly affecting the human
environment. Therefore, the preparation of an EIS is not required by
NEPA. The NWPs authorize only those activities that have minimal
adverse environmental effects on the aquatic environment, individually
or cumulatively, which is a much lower threshold than the threshold for
requiring an EIS. This is not a circular argument. To ensure that the
NWPs authorize only those activities with minimal adverse effects on
the aquatic environment, individually or cumulatively, there are
several safeguards in the NWP program: (1) PCN requirements to allow
district engineers to review certain proposed NWP activities on a case-
by-case basis; (2) compensatory mitigation requirements for most
activities that require a PCN; (3) the ability to impose case-specific
conditions on an NWP authorization to protect the aquatic environment;
(4) the ability to impose regional conditions on an NWP to protect high
value waters; (5) the requirement for water quality certification for
activities involving a discharge of dredged or fill material into
waters of the United States; (6) the requirement for Coastal Zone
Management Act consistency determination in coastal areas; and (7)
provisions for discretionary authority to require an individual permit
review if the proposed impacts are more than minimal.
The FONSI was issued on June 23, 1998. Copies of the FONSI are
available at the office of the Chief of Engineers, at each District
office, and on the Corps regulatory home page at http://
www.usace.army.mil/inet/functions/cw/cecwo/reg/. The EAs for each of
the new and modified NWPs will be available on the Corps regulatory
home page when the issuance of these NWPs is announced in a future
Federal Register notice. When regional conditions are added to an NWP,
a supplemental decision document containing local analyses will be
issued by the Division Engineer. The supplemental decision documents
for a district's regional conditions will be available at that
district.
For the Corps regulatory program, including the NWP program, the
procedures for complying with NEPA are contained in 33 CFR Part 325,
Appendix B. The scope of analysis for NEPA compliance is thoroughly
discussed in Appendix B, including the factors to be considered when
determining the extent of Federal control and responsibility for a
particular project. In most cases, upland impacts are not part of
Federal control and responsibility, and should not be included in a
general analysis of NEPA compliance for the NWP program.
Many commenters stated that, while they support the Corps intent to
prepare a PEIS for the NWP program, the PEIS should be completed prior
to the issuance of the new and modified NWPs. Several commenters
remarked that the PEIS should have been completed prior to this
reissuance of the NWPs in 1996. Some commenters stated that the PEIS
should include a comprehensive and accurate accounting of the
cumulative impacts authorized by the NWPs in the past. One commenter
recommended that the Corps allow full public participation in the
preparation of the PEIS through regional meetings. This commenter also
suggested that the PEIS address the following alternatives: no action,
reduction in scope of authorized activities, reduction in acreage
impact limits, and alternative programmatic approaches. One commenter
agreed that a PEIS is not required and stated that while the Corps is
not legally prevented from producing a PEIS, even if it is not
required, the PEIS could have significant effects on the Corps workload
and the Corps should not devote resources to the preparation of the
PEIS at the expense of its other activities.
We have committed to demonstrating that the NWP program authorizes
only those activities with minimal individual and cumulative
environmental effects. Consistent with this commitment, the Corps will
prepare, through the Institute for Water Resources, a PEIS for the
entire NWP program. While a PEIS is not required for the same reasons
that an EIS is not required, the PEIS will provide the Corps with a
comprehensive mechanism to review the effects of the NWP program on the
human environment. The PEIS will be conducted with the participation of
other Federal agencies, States, Tribes, and the public. The Corps is
scheduled to initiate the PEIS by mid-1999 and complete the PEIS by
December 2000. Therefore, the PEIS should be completed prior to the
next scheduled reissuance of the NWPs in December 2001. Since the PEIS
is not required, we will not delay the issuance of the new and modified
NWPs. The PEIS will fully comply with NEPA requirements, including
alternatives analyses. There have been meetings to provide other
[[Page 39266]]
Federal agencies, states, Tribes, and the public with opportunities to
participate in the scoping of the PEIS. These scoping meetings were
announced in a Federal Register notice published on March 22, 1999 (64
FR 13782).
Some commenters said that the preliminary EAs do not comply with
NEPA because they do not adequately address alternatives that are
necessary to support the final decision. They believe that failure to
consider a ``no action'' alternative is inconsistent with NEPA and that
an alternatives analysis in the EA cannot be replaced with a discussion
of the case-specific flexibility provided by the NWP program. Another
commenter stated that if the EAs are properly prepared, they would not
support the FONSI determination.
In compliance with NEPA, environmental documentation will be
prepared for each new and modified NWP. Each document will include an
EA, a FONSI, and, where relevant, a preliminary Section 404(b)(1)
Guidelines compliance review. Each EA will contain an alternatives
analysis for the NWP, including a discussion of the ``no action''
alternative. The alternatives analysis will also consider national
modification alternatives, regional modification alternatives, and
case-specific on-site alternatives for the NWP. After the issuance of
the new and modified NWPs, copies of these documents will be available
for inspection at the office of the Chief of Engineers, at each Corps
district office, and at the Corps regulatory home page at the Internet
address cited at the beginning of this Federal Register notice.
Several commenters stated that the preliminary EAs for the proposed
new and modified NWPs are inadequate because they fail to provide an
ecological rationale for the proposed acreage limits. These commenters
believe that the assessment of individual and cumulative adverse
effects relies entirely on conditions that address secondary impacts,
future regional conditions, and the discretion of the District Engineer
in the PCN process. Another commenter recommended that the Corps revise
the EAs once the regional conditions are developed and suggested that
the Corps place the revised EAs, with the regional conditions, on
public notice in the Federal Register to provide an opportunity for
public comment.
Where appropriate, each EA will generally consider different
acreage limits for each NWP. Acreage limits for each NWP are
established to allow the NWPs to authorize most activities that result
in minimal adverse effects on the aquatic environment, individually or
cumulatively. The minimal adverse effects determination is based on
general consideration of the effects of the authorized activities on
the physical, chemical, and biological characteristics of the aquatic
environment, as well as human use characteristics. Division engineers
can regionally condition an NWP to decrease the acreage limit
established nationally for that NWP, if such a regional condition is
necessary to ensure that the NWP authorizes only activities with
minimal adverse effects on the aquatic environment. When division
engineers approve regional conditions for an NWP, they will issue a
decision document that will supplement the national EA for that NWP. On
a case-by-case basis, it is the responsibility of district engineers to
assess and monitor the adverse effects on the aquatic environment that
result from activities authorized by NWPs. District engineers review
PCNs to assess the foreseeable adverse effects caused by the authorized
work. The final EAs for the new and modified NWPs will not be subject
to public comment, since they are final decision documents.
Scope of the New Nationwide Permits
In the July 1, 1998, Federal Register notice, we requested comments
on the scope of applicable waters for the new and modified NWPs. In
that Federal Register notice, we listed five categories of applicable
waters for the proposed NWPs. The categories of waters included: (1)
all waters of the United States; (2) non-tidal waters; (3) non-tidal
waters, excluding non-tidal wetlands contiguous to tidal waters; (4)
non-Section 10 waters; and (5) non-Section 10 waters, excluding
wetlands contiguous to Section 10 waters.
Most of the commenters objected to the proposed NWPs because they
authorize activities in most non-tidal waters of the United States,
including non-tidal wetlands adjacent, but not contiguous, to tidal
waters. On the other hand, some commenters supported the proposed NWPs
because the distinction between non-tidal waters and headwaters and
isolated waters was dropped from the NWP program. NWP 26 authorizes
activities only in isolated waters and headwaters. A number of
commenters expressed concern that the increased scope of applicable
waters for the new NWPs provides less protection to the aquatic
environment because many of the waters subject to the new NWPs are
important for a variety of fish and wildlife and provide important
functions and values such as flood control and improvement of water
quality. One of these commenters stated that the increased scope of
waters would harm the ecological integrity of watersheds. One commenter
remarked that the scope of waters for the new NWPs implies that non-
tidal waters are less important than tidal waters.
To increase protection of the aquatic environment, we have modified
the applicable waters for the some of the proposed new and modified
NWPs (i.e., NWPs 39, 40, 41, 42, and 43) to prohibit the use of these
NWPs in non-tidal wetlands adjacent to tidal waters. With the proposed
NWPs, the Corps is increasing protection of open and flowing waters,
and not focusing only on wetlands, especially low-value wetlands. This
approach will enhance protection of the aquatic environment. The
proposed NWPs were developed and conditioned to better control and
limit adverse effects on the aquatic environment. We are proposing to
modify two NWP general conditions to provide greater protection for
water quality and maintenance of water flows (General Conditions 9 and
21, respectively). We are also proposing three new NWP general
conditions to protect the aquatic environment (General Conditions 25,
26, and 27) by restricting the use of NWPs in designated critical
resource waters, impaired waters, and waters of the United States
within 100-year floodplains. The proposed general conditions are
discussed elsewhere in this Federal Register notice. In addition, Corps
districts and divisions will regionally condition these NWPs to ensure
that they authorize only activities with minimal adverse effects on the
aquatic environment.
NWPs 39, 41, 42, and 43 do not authorize activities in non-tidal
wetlands adjacent to tidal waters. High value isolated waters
identified by districts will be protected through the regional
conditioning of the NWPs. Case-specific special conditions and
discretionary authority will also be used to protect high value waters
when district engineers review PCNs.
Many commenters stated that the five categories of waters of the
United States applicable to the new NWPs make the NWP program too
complex. One commenter remarked that identifying these waters would not
result in a workload savings to the Corps because it will require
additional field review. One commenter recommended that the Corps
reduce the number of applicable waters from five to three, specifically
``all waters,'' ``Section 10 waters,'' and ``non-tidal waters.''
Another commenter believes that these categories are arbitrary and
requested that the Corps
[[Page 39267]]
provide justification for these categories of waters. A few commenters
asked why ``adjacent waters,'' as used in the context of NWP 26, was
dropped from the NWP program. One commenter suggested that NWPs 39, 41,
42, 43, and 44 should be modified to authorize activities only in
isolated waters and headwaters.
We recognize that the five categories of waters discussed in the
July 1, 1998, Federal Register notice can be considered by some members
of the regulated public as unnecessarily complex, so we have simplified
the applicable waters for the new NWPs. Most of the new NWPs authorize
discharges of dredged or fill material into non-tidal waters of the
United States, excluding non-tidal wetlands adjacent to tidal waters.
The applicable waters for each proposed new and modified NWP are
discussed in detail in the preamble discussions of those NWPs.
One commenter objected to the focus on contiguous waters and stated
that subsurface connections between waters of the United States are as
important as surface connections. Two commenters requested that the
Corps specify that for non-contiguous, isolated waters, an interstate
or foreign commerce connection must be established for these areas to
be considered waters of the United States. One commenter objected to
portions of the July 1, 1998, Federal Register notice that stated that
district engineers can exercise discretionary authority when areas with
``significant social or ecological functions and values'' may be
adversely affected by the work, because the commenter believes that the
Clean Water Act does not provide regulatory authority for areas with
significant social values. Another commenter objected to the use of the
term ``ecological functions,'' stating that it is not a term used to
define the scope of authority.
We recognize that subsurface connections between waters of the
United States are important, but the Section 404 program focuses on
surface waters. It is not necessary for the Corps to specify that
isolated waters require an interstate or foreign commerce connection
for these waters to be considered waters of the United States, because
that requirement can be found in 33 CFR Part 328. Discretionary
authority can be exercised by division and district engineers where
there are sufficient concerns for the aquatic environment under the
Section 404(b)(1) guidelines or any other factor of the public
interest. Public interest factors include consideration of waters with
``significant social or ecological functions and values.''
A couple of commenters stated that the classification of perennial,
intermittent, and ephemeral streams will establish a ranking system,
implying that perennial streams are more valuable than ephemeral
streams. These commenters believe that the majority of streams in the
northwestern, northeastern, and southern United States will receive
more protection than those in the western and southwestern United
States.
We are classifying streams as perennial, intermittent, and
ephemeral for the purposes of the NWPs to evaluate or restrict adverse
effects to flowing waters more effectively. For example, in NWP 43 we
are proposing to prohibit the construction of new stormwater management
facilities in perennial streams. Damming perennial streams to construct
stormwater management ponds often has more than minimal adverse effects
on the aquatic environment, particularly for aquatic organisms such as
fish and invertebrates. Dams in perennial streams may block fish
passage to spawning areas and disrupt food webs in streams, reducing
the productivity of streams. In many areas, it is more effective to
construct stormwater management ponds in ephemeral and low-value
intermittent streams, because these facilities, if properly designed,
constructed, and maintained, will substantially reduce adverse effects
of nearby development on local water quality and water flows. In areas
where ephemeral streams are valuable aquatic resources, division and
district engineers can regionally condition the NWPs to restrict their
use in ephemeral streams or require PCNs for activities in ephemeral
streams.
Indexing of the Nationwide Permits To Determine Acreage Limits
In the July 1, 1998, Federal Register notice, we requested comments
on the use of indexing to determine acreage limits for NWPs 39 and 40,
as well as the proposed NWP B for master planned developments. Most of
the commenters who addressed the use of indexing to determine acreage
limits for certain NWPs were opposed to the indexing schemes proposed
in the July 1, 1998, Federal Register notice. A majority of commenters
stated that the proposed indexes were too confusing, not scientifically
based, burdensome on the regulated public, and would result in a
significant workload increase for the Corps. These commenters believe
that indexing acreage limits makes the NWPs less efficient and
increases the amount of time spent reviewing activities that have
minimal adverse effects on the aquatic environment. Most of these
commenters requested that the Corps continue to use simple acreage
limits for the NWPs. Some commenters recommended basing the indexed
acreage limit on a percentage of parcel size, whereas other commenters
suggested basing the indexed acreage limit on a percentage of the total
wetland acreage within the parcel, not the total size of the parcel.
Some commenters believe the proposed indexes for these NWPs were
too restrictive and that both the maximum acreage loss and PCN
thresholds under the NWP should be higher. Other commenters said that
the proposed indexes and PCN thresholds would authorize activities with
more than minimal adverse effects on the aquatic environment and
recommended reducing the acreage limits and PCN thresholds. Several
commenters believe that using indexing to determine acreage limits will
allow NWPs to authorize activities that result in more than minimal
cumulative adverse effects by not addressing avoidance and
minimization. A number of commenters were confused as to how the
proposed indexes would be interpreted or utilized, particularly where
there was overlap between parcel size ranges and acreage limits. For
example, the proposed acreage limit index for NWP A had an acreage
limit of \1/2\ acre for parcel sizes of 5 to 10 acres and an acreage
limit of 1 acre for parcel sizes of 10 to 15 acres. These commenters
were uncertain as to whether the acreage limit for a project
constructed on a 10-acre parcel would be \1/2\ acre or 1 acre.
We believe that indexing acreage limits based on project size or
project area is necessary for certain NWPs (i.e., NWPs 39 and 40) to
ensure that those NWPs authorize only activities that have minimal
adverse effects on the aquatic environment. Instead of using the
indexing schemes proposed in the July 1, 1998, Federal Register notice,
we are proposing indexes based on simple algebraic formulas, using a
percentage of project area or farm tract size. The proposed indexed
acreage limit for NWP 39 has a minimum acreage limit of \1/4\ acre for
a single and complete project, with the indexed acreage limit
increasing by 2% of the project area to a maximum acreage limit of 3
acres. For NWP 40 activities in playas, prairie potholes, and vernal
pools, we are proposing a similar indexing formula, with a base acreage
limit of \1/10\ acre and a different percentage of farm tract size
(i.e., 1% of farm tract size). For NWP 40 activities in other types of
non-tidal
[[Page 39268]]
wetlands to increase agricultural production, we are proposing a simple
acreage limit of 2 acres, since the average farm tract size in the
United States is 275 acres, which means that most agricultural
producers would qualify for the maximum acreage limit even if an
indexed acreage limit would be used.
The algebraic indexing scheme will be easier to use and less
confusing than the indexes proposed in July 1, 1998, Federal Register
notice. Indexing based on the percentage of project size will avoid the
confusion resulting from overlap of parcel size ranges. For example, in
the indexing scheme proposed for NWP A in the July 1, 1998, Federal
Register notice (see 63 FR 36067), a 15-acre parcel would be subject to
either a 1 or 2 acre limit. The algebraic index avoids this overlap in
acreage limits. We believe that the indexes used for NWPs 39 and 40
will allow the authorization of most activities that result in minimal
adverse effects on the aquatic environment, individually or
cumulatively. Division engineers can regionally condition NWP 39 to
make the indexed acreage limit more restrictive, either by reducing the
minimum acreage limit, percentage of project area or farm tract size,
or maximum acreage limit. For example, NWP 39 can be regionally
conditioned to reduce the minimum acreage limit from \1/4\ acre to \1/
10\ acre or the percentage of project area from 2% to 1%. However,
paragraph (a) of NWP 40 cannot be regionally conditioned by division
engineers, to ensure consistent implementation of this part of NWP 40
in cooperation with NRCS throughout the country. An activity that
exceeds the indexed acreage limit will require authorization by another
NWP, a regional general permit, or an individual permit. The use of an
indexed acreage limit does not preclude project proponents from
complying with General Condition 19, which requires on-site avoidance
and minimization of activities in waters of the United States to the
maximum extent practicable. If the District Engineer determines that
the proposed work will result in more than minimal adverse effects on
the aquatic environment, then discretionary authority will be exercised
and the applicant will be notified that another form of Corps
authorization, such as an individual permit or regional general permit,
is required.
Another source of confusion for NWP applicants cited by commenters
was the application of PCN thresholds with an indexed acreage limit.
For example, the proposed index for NWP 39 had an acreage limit of \1/
4\ acre for activities on parcels less than five acres in size. The
proposed PCN threshold for this NWP was \1/3\ acre. Some commenters
thought that this implied that losses of greater than \1/4\ acre of
waters of the United States would require notification to the Corps,
but this requirement was not specifically stated in the NWP.
For NWP 39, the PCN threshold has been changed to \1/4\ acre. Since
this threshold is the same as the minimum acreage limit of \1/4\ acre
in the indexed acreage limit, the PCN requirements for these NWPs
should not be confusing. District engineers will not receive PCNs for
agricultural activities authorized only by paragraph (a) of NWP 40.
Instead, they will receive postconstruction reports from landowners
that describe the authorized work.
Workload Implications of the New NWPs
A number of commenters stated that the complexity of the proposed
NWPs will increase the Corps workload for the NWP program. Some of
these commenters said that the current staffing level of the Corps is
inadequate to implement the proposed new and modified NWPs. One
commenter stated that utilization of the NWPs as a tool to prioritize
workload is an abdication of the Corps responsibility. This commenter
said that the Corps regulatory program can be made more efficient
through other means, such as improved technology, the use of private
delineators, permit fees, and increased coordination.
For many years, general permits, including NWPs, have been used by
the Corps to manage its workload by authorizing activities with minimal
adverse effects on the aquatic environment that would otherwise be
subject to the more resource-intensive individual permit process. The
Corps does not have the resources to review each activity that requires
a Section 404 and/or Section 10 permit through the individual permit
process. Requiring individual permits for all these activities would
also create unnecessary burdens on the regulated public. Most
activities authorized by the Corps regulatory program are authorized by
general permits. General permits, including NWPs, authorize activities
that would usually be authorized through the individual permit process
with little or no change in the scope of work. It is inefficient to
require an individual permit for activities that have minimal adverse
effects on the aquatic environment that the Corps could authorize more
effectively through the general permit process. General permits also
benefit the aquatic environment because they provide incentives for
landowners and developers to design their projects to reduce adverse
effects on the aquatic environment to qualify for the expedited permit
process provided by general permits.
The scope of applicable waters for the proposed NWPs and the
proposed new NWP general conditions, especially General Condition 27,
will cause substantial increases in the Corps workload by requiring
individual permits for many activities in designated critical resource
waters, impaired waters, and waters of the United States within the
100-year floodplain. The proposed prohibition against using NWPs to
authorize certain activities resulting in permanent, above-grade fills
in waters of the United States within the 100-year floodplain is
expected to result in two to three thousand more individual permits per
year added to the Corps workload.
The increase in the Corps workload caused by the proposed NWP
general and regional conditions will require that most Corps districts
reprioritize their activities. Corps districts will focus their efforts
on those actions that provide the most value added to the environment
and the public. Inevitably, the substantial increase in workload will
result in an increase in permit evaluation time for most permit
reviews. At this point, we cannot quantify these impacts.
Preconstruction Notification
A few commenters recommended that the Corps extend the review
period for preconstruction notifications (PCNs) from 30 days to 45 or
60 days, due to the increased complexity of the new and modified NWPs.
One commenter expressed support for the 30-day review period for PCNs.
Several commenters believe that the PCN thresholds and information
requirements are confusing and that the PCN thresholds should be lower
for all activities, such as \1/4\ acre of waters or 100 linear feet of
stream bed.
We recognize that the proposed NWPs are more complex than NWP 26
and that a longer PCN period is necessary to effectively review
notifications. We are proposing to modify the preconstruction
notification process for the NWPs to provide more time for district
engineers to review PCNs. District engineers will have 30 days from the
date of receipt of a PCN to determine if it is complete. If the PCN is
not complete, the District Engineer can make only one request for
additional information from the applicant. This request must be made
during the initial 30-day period. District
[[Page 39269]]
engineers cannot make additional requests for more information to
evaluate the PCN. If the applicant has not provided all of the
requested information to the District Engineer, then the PCN is not
considered complete and the PCN review process will not start until the
applicant has provided all of the requested information to the District
Engineer. Upon receipt of a complete PCN, the District Engineer has 45
days to determine if the proposed work qualifies for NWP authorization,
with or without special conditions, or exercise discretionary authority
to require an individual permit. If the District Engineer does not
notify the applicant of the outcome of the PCN review prior to the end
of the 45-day period, then the proposed work is authorized by NWP and
the permittee can begin work provided all of the requisite State and
local authorizations, such as WQC, have been obtained. We are proposing
to modify General Condition 13 in accordance with the proposed changes
to the notification process discussed above.
The Corps has limited the amount of information required to be
submitted with a PCN to the minimum necessary to effectively evaluate
the potential adverse effects of the proposed work on the aquatic
environment and determine if the project complies with the terms and
conditions of the NWPs. By providing the required information when the
PCN is first submitted to the Corps, the applicant will minimize delays
in processing. The Corps has also changed the PCN threshold for many of
the proposed NWPs from \1/3\ acre to \1/4\ acre to provide more
consistency. The proposed PCN thresholds for stream bed impacts are
similar to the PCN thresholds proposed in the July 1, 1998, Federal
Register notice.
Two commenters recommended that PCNs should be required for all
activities authorized by the new NWPs. These commenters stated that 15
days is an inadequate length of time for agency technical review of
site conditions, mitigation plans, and monitoring plans for activities
authorized by these NWPs. These commenters also believe that the lack
of agency coordination for PCNs violates the Endangered Species Act
(ESA), National Environmental Policy Act (NEPA), and the Fish and
Wildlife Coordination Act (FWCA). Another commenter stated that the PCN
process is illegal.
Requiring PCNs for all activities authorized by NWPs is unnecessary
and would substantially reduce the effectiveness of the NWPs. PCN
thresholds are established so that only activities that could
potentially result in more than minimal adverse effects on the aquatic
environment require notification to the Corps. In addition, the Corps
does not have the resources to review PCNs for every activity
authorized by NWPs. We are proposing to modify General Condition 13 to
provide more time for Federal and State resource agencies to review
PCNs. These agencies will have 10 calendar days to notify the District
Engineer that they intend to provide substantive, site-specific
comments. If these agencies provide such notification, the District
Engineer will wait an additional 15 calendar days before making a
decision on the PCN. Twenty-five days is an adequate period of time for
the Federal and State resource agencies to review PCNs. The intent of
agency coordination is to obtain site-specific, substantive comments
from these agencies within their area of expertise. Detailed mitigation
and monitoring plans are not required for the PCN. The applicant need
only propose compensatory mitigation that will offset losses of waters
of the United States. The Federal and State resource agencies can
comment on the appropriateness of the proposed compensatory mitigation.
The District Engineer will determine if the proposed compensatory
mitigation is appropriate and incorporate the requirements for
compensatory mitigation, including detailed plans and monitoring
requirements, into the NWP authorization as special conditions.
The PCN process does not violate ESA, NEPA, or FWCA. General
Condition 11 ensures that activities authorized by NWPs comply with
ESA. There is no provision in NEPA requiring the Corps to coordinate
activities authorized by general permits with other Federal, State, or
local agencies. The NWP issuance process satisfies the coordination
requirements of FWCA. The PCN process is not illegal; it is merely a
mechanism to ensure that the NWPs do not authorize activities with more
than minimal adverse effects on the aquatic environment, individually
or cumulatively.
Two commenters suggested that the avoidance and minimization
statement required for NWPs 39 and 43 should be required for all NWP
activities that require a PCN. Another commenter recommended that the
minimization and avoidance statement should be limited to one page.
We disagree that the avoidance and minimization statement is
necessary for all NWP activities that require a PCN. General condition
19 requires that permittees avoid and minimize impacts to waters of the
United States on-site to the maximum extent practicable. In addition,
many activities authorized by NWP must occur in a certain location. For
example, repair and maintenance activities authorized by NWP 3 must be
in the same location as the existing structure or fill. Bank
stabilization activities authorized by NWP 13 must occur at the
location of the bank. The statement required for NWPs 39 and 43 is
intended to encourage the applicant to consider ways to avoid and
minimize impacts to waters of the United States during project
planning. It also provides avoidance and minimization information to
Corps personnel with the PCN, instead of requiring the District
Engineer to ask the applicant if additional avoidance and minimization
can be achieved. The avoidance and minimization statement will allow
more expeditious review of the PCN.
One commenter stated that a delineation of special aquatic sites
should be required for every activity that requires a PCN. Another
commenter recommended establishing a notification process for projects
that include development on floodplains, so that State and local
floodplain management agencies can review the proposed work.
We disagree that a delineation of special aquatic sites is
necessary for every activity requiring a PCN. General condition 13,
paragraph (b)(4), lists the NWPs that require submission of a
delineation of special aquatic sites with the PCN. It is not practical
for the Corps to establish a notification process for projects that
occur in floodplains. In many parts of the country, there are
floodplains that are not waters of the United States. Development
activities in floodplains that do not involve discharges of dredged or
fill material into jurisdictional wetlands or other waters of the
United States do not require a Section 404 permit, even though a Corps
permit may be required to cross waters of the United States to provide
access to the upland development. Many State and/or local governments
currently have programs that address construction in floodplains.
Issuance of an NWP authorization for an activity within a floodplain
does not preclude the State or local floodplain management agency from
denying its authorization. If the State or local regulatory agency does
not authorize the proposed work, then the project proponent cannot do
the work even though the Corps may have determined that it qualifies
for authorization under the NWP program.
In response to the July 1, 1998, Federal Register notice, the
National Park Service (NPS) requested that they
[[Page 39270]]
receive full opportunity to comment on all proposed NWP activities that
may impact NPS resources. NPS also requested that they be able to
request elevation of specific projects to require review under the
individual permit process. Although the Department of the Interior,
through the U.S. Fish and Wildlife Service (FWS), has the opportunity
to review PCNs that require agency coordination, NPS believes that the
5 day comment period does not provide enough time to allow FWS to
consult with NPS.
We do not agree that it is necessary to consult with NPS on every
NWP activity. If NPS has specific concerns, they should be addressed at
the district level, either through coordination agreements between the
District Engineer and the local NPS office or through the regional
conditioning process. The proposed modification of the PCN process
would allow district engineers to provide up to 25 calendar days for
agency comment on a specific NWP activity that requires agency
coordination. We believe that this is ample time for FWS to coordinate
with NPS.
One commenter recommended that the Corps post PCNs on district
Internet home pages to allow the public to provide comments and better
track cumulative adverse effects. Another commenter requested that the
Corps coordinate with the appropriate agency prior to issuing NWP
authorizations in Tribal trust lands to determine if treaty reserved
resources would be adversely affected by the work.
The purpose of the PCN process is to provide the Corps with an
opportunity to determine if a proposed activity complies with the terms
and conditions of the NWPs and results in minimal adverse effects on
the aquatic environment, individually or cumulatively. Posting PCNs on
the Internet would add no value to the Corps review of the PCN.
Cumulative adverse effects on the aquatic environment will continue to
be tracked by Corps districts. Corps districts can regionally condition
the NWPs to require coordination for activities that may adversely
affect treaty reserved resources in Tribal trust lands.
Compensatory Mitigation
A large number of commenters specifically addressed the
compensatory mitigation requirements of the proposed new and modified
NWPs. A few commenters stated that the proposed provisions discourage
compensatory mitigation, because the requirements are too complex and
burdensome. Other commenters assert that the compensatory mitigation
requirements discussed in the July 1, 1998, Federal Register notice are
not specific enough. Many commenters provided recommendations
concerning the size and types of losses authorized by the NWPs for
which compensatory mitigation is appropriate. These recommendations
included requiring compensatory for: (1) All activities authorized
NWPs, (2) activities that require submittal of a PCN, (3) losses of
greater than \1/3\ acre of waters of the United States, or (4) losses
of greater than 1 acre of waters of the United States. One commenter
suggested that compensatory mitigation should also be required for all
impacts to non-wetland aquatic resources. Several commenters stated
that the Corps should not require compensatory mitigation for wetlands
losses because other State and local regulatory agencies already have
such requirements.
We acknowledge that the discussions of compensatory mitigation
requirements in the July 1, 1998, Federal Register notice contained
some inconsistencies. Therefore, we will clarify these requirements in
general terms, but permittees must recognize that specific compensatory
mitigation requirements for particular projects are established by the
District Engineer. Compensatory mitigation will normally be required
for NWP activities that require submission of a PCN (e.g., losses of
greater than \1/4\ acre of waters of the United States), and in all
cases where compensatory mitigation is necessary to ensure that the
authorized work results in minimal adverse effects on the aquatic
environment. The District Engineer may determine that compensatory
mitigation is not necessary for a particular project because the
proposed work will result in only minimal adverse effects on the
aquatic environment. Activities that do not require notification are
presumed to result in minimal adverse effects and would not require
compensatory mitigation to bring the adverse effects to the minimal
level. District and division engineers can regionally condition an NWP
to lower the notification threshold and determine, on case-by-case
basis, if compensatory mitigation is necessary to ensure that the
authorized work results in minimal adverse effects on the aquatic
environment.
Although many State and local agencies may require compensatory
mitigation for losses of wetlands, we can require compensatory
mitigation for losses of other waters of the United States. If the
compensatory mitigation requirements of a State or local agency for a
particular project adequately address the Corps concerns or
requirements, then that compensatory mitigation can be used to satisfy
the Corps compensatory mitigation requirements. However, some State and
local governments may not have adequate compensatory mitigation
provisions to ensure that activities authorized by NWPs will result in
minimal adverse effects on the aquatic environment. Therefore, the
Corps can impose its own compensatory mitigation requirements.
Many commenters expressed opposition to the use of compensatory
mitigation to offset losses of waters of the United States that result
from activities authorized by NWPs. They believe that compensatory
mitigation encourages off-site, out-of-kind compensation for losses of
waters of the United States. Another objection raised by these
commenters is that some wetland types are not easily created. A number
of commenters cited studies that evaluated compensatory mitigation
projects and found them to be unsuccessful or only partially
successful. One commenter stated that only restoration and creation
should be used to calculate net gains in wetlands. One commenter
recommended limiting preservation only to exceptional quality or unique
wetlands.
Compensatory mitigation is often necessary to offset the loss of
waters of the United States and ensure that an activity authorized by
NWP will result in minimal adverse effects on the aquatic environment.
The NWP regulations at 33 CFR Part 330.1(e)(3) allow permittees to
provide compensatory mitigation to reduce the adverse effects of the
proposed work to the minimal level. The functions and values provided
by waters of the United States that are lost due to authorized
activities can be replaced by carefully planned and constructed
restoration, enhancement, and creation of aquatic habitats.
Compensatory mitigation can also protect and enhance important aquatic
resource functions and values through the establishment and maintenance
of vegetated buffers adjacent to waters of the United States and, in
exceptional circumstances, the preservation of high value aquatic
habitats. Without compensatory mitigation, the Corps regulatory program
would not be able to satisfy a principal goal of the Clean Water Act,
which is the restoration and maintenance of the physical, chemical, and
biological integrity of the Nation's waters.
Compensatory mitigation requirements should be based on what is
best for the aquatic environment, not
[[Page 39271]]
inflexible requirements for in-kind and on-site compensatory mitigation
that may not successfully replace lost functions and values of aquatic
habitats. The primary goal of compensatory mitigation is to replace the
functions and values of waters of the United States that are lost due
to activities authorized by NWPs. It is essential that compensatory
mitigation projects that restore, enhance, or create aquatic habitats
have a high probability of success. Much of the failure of past
compensatory mitigation projects is due to poor site selection,
planning, and implementation. On-site compensatory mitigation projects
may fail because site conditions, such as local hydrology, are usually
substantially changed by the authorized activity. For example, once a
residential subdivision is constructed, the on-site hydrology may be
altered to the extent that the site cannot support a restored or
created wetland. In such cases, it may be better for the aquatic
environment to conduct the compensatory mitigation project off-site, in
a location with better chances for success within the watershed of the
authorized work.
When reviewing compensatory mitigation proposals, district
engineers will consider what is best for the aquatic environment,
including requiring vegetated buffers to open waters, streams, and
wetlands. Wetland restoration, enhancement, creation, and in
exceptional circumstances, preservation are not the only compensatory
mitigation activities that can be required for an NWP authorization.
Stream restoration and enhancement can also provide compensatory
mitigation for losses resulting from activities authorized by NWPs.
Upland buffers can be considered as out-of-kind compensatory mitigation
because they protect local water quality and aquatic habitat. Vegetated
buffers reduce adverse effects to water quality caused by adjacent land
use. For example, forested riparian buffers provide shade to streams,
supporting cold water fisheries. We cannot require compensatory
mitigation for upland impacts, but we can require, as compensatory
mitigation, upland vegetated buffers that protect water quality and
aquatic habitat. It is important to note that the NWPs are optional
permits, and if the project proponent does not want to establish and
maintain vegetated buffers adjacent to waters of the United States to
qualify for an NWP authorization, then he or she can apply for
authorization through the individual permit process. The establishment
or maintenance of a vegetated buffer adjacent to waters of the United
States can be an important part of the compensatory mitigation required
for a Corps permit. District engineers should adjust the amount of
``replacement acreage'' required for compensatory mitigation by an
amount that recognizes the value of the vegetated buffer to the aquatic
environment.
We recognize that certain wetland types are not easily restored or
created. Past failures to replace certain types of wetlands are not
sufficient justification to stop all efforts to replace wetlands lost
through the Section 404 program. Some types of wetlands are easily
restored or created, although they may take several years to achieve
functional equivalence compared to natural wetlands. Preservation is
also an important mechanism to protect remaining high value wetland
types, particularly those that cannot be easily restored or created.
Careful site selection, planning, and construction are essential to
achieve greater success for compensatory mitigation projects.
The ability of the Corps to review and monitor compensatory
mitigation projects required for NWP authorizations is dependent upon
workload and available resources. Increased use of mitigation banks and
appropriate in lieu fee programs may make monitoring efforts more
manageable, because those efforts can be focused on a smaller number of
large sites instead of a large number of small individual mitigation
projects. Mitigation banks and appropriate in lieu fee programs may
provide better compensatory mitigation because they are often better
planned, constructed, and maintained. The goal of compensatory
mitigation is to offset losses of waters of the United States
authorized by the Corps regulatory program. Because the Corps program
causes the avoidance of most high value wetlands, most permitted
impacts are to moderate or low value wetlands.
We also received numerous comments concerning the location and
types of compensatory mitigation that should be acceptable for the NWP
program. Most commenters expressed a preference for restoration, and
some commenters oppose the use of enhancement or preservation of
aquatic resources to provide compensatory mitigation. Some commenters
oppose the use of out-of-kind compensatory mitigation to offset losses
of waters of the United States. Several commenters recommended that the
Corps require compensatory mitigation at specific ratios, ranging from
1:1 to 5:1. Many commenters stated that compensatory mitigation
projects should be confined to the watershed where the losses resulting
from the authorized activity occurred. Most commenters recommended that
the NWPs should not express a sequencing preference for on-site
mitigation, mitigation banks, or in lieu fee programs. One commenter
stated that the NWPs should have a general condition establishing
compensatory mitigation performance criteria, to specify basic
requirements.
We recognize that restoration is the type of compensatory
mitigation with the greatest probability of success and encourage its
use wherever possible. Enhancement of aquatic resources improves the
functions and values of low-quality waterbodies, but should not be used
in high value waters. As stated in the July 1, 1998, Federal Register
notice, preservation of aquatic resources is estimated to comprise less
than 5% of the compensatory mitigation required by the Corps, but it is
an important mechanism for protecting high value wetlands and
waterbodies.
Out-of-kind compensatory mitigation should not be prohibited
because it can provide substantial benefits for the aquatic
environment. An important form of out-of-kind compensatory mitigation
is the establishment and maintenance of upland vegetated buffers
adjacent to open or flowing waters or wetlands. Upland vegetated
buffers help protect and enhance the water quality and aquatic habitat
features of waters of the United States.
Specific compensatory mitigation requirements, such as replacement
ratios, are determined by district engineers on a case-by-case basis.
For the NWPs, district engineers determine what compensatory mitigation
is necessary to ensure that the adverse effects of the proposed work on
the aquatic environment are minimal. The Corps can require compensatory
mitigation in excess of a 1:1 ratio of impact acreage to compensatory
mitigation acreage in order to adequately replace the lost aquatic
resource functions and values. The Corps can also accept out-of-kind
compensatory mitigation, if it provides benefits to the aquatic
environment. We believe that it is inappropriate, due to the
differences in aquatic resource functions and values across the
country, to establish national requirements for compensatory
mitigation.
One commenter stated that the compensatory mitigation data cited by
the Corps in the July 1, 1998, Federal Register notice was misleading
because many NWP activities do not require reporting to the Corps.
Several commenters requested that the Corps
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provide accurate data on losses of waters of the United States to allow
the public to consider compensatory mitigation requirements and that
this data should specify the proportion of compensatory mitigation that
is achieved through enhancement of aquatic resources. A number of
commenters requested that the Corps modify its data collection efforts
to monitor the amount of compensatory mitigation that is accomplished
through restoration, enhancement, creation, and preservation, as well
as the effectiveness of these activities. Two commenters recommended
that the Corps furnish this data to the States on an annual basis.
The compensatory mitigation data cited in the July 1, 1998, Federal
Register notice is based on the acreage of reported wetland impacts and
wetland compensatory mitigation. This data does not include
compensatory mitigation for impacts to streams and other types of non-
wetland aquatic habitats. Many of the non-reporting NWP activities do
not result in filling of wetlands and would not normally require
compensatory mitigation to ensure that the adverse effects to the
aquatic environment are minimal. For NWP activities that do not require
notification to the Corps, many permittees request a written
determination from the Corps to ensure that their projects qualify for
NWP authorization. The wetland impact acreage for these activities is
included in the data compiled by the Corps. District engineers can
require compensatory mitigation for these projects to ensure that they
result in only minimal adverse effects on the aquatic environment.
The data collection systems for most Corps districts do not
currently differentiate between the amounts of compensatory mitigation
provided through restoration, enhancement, creation, or preservation.
Instead, most districts track only the total amount of compensatory
mitigation required for Corps permits. The effectiveness of
compensatory mitigation efforts is monitored by district engineers on a
case-by-case basis, to the extent allowed by workload and personnel
resources. Therefore, we cannot collect this type of information. The
data the Corps collects on impacts to waters of the United States and
compensatory mitigation is public information.
Support and opposition for the use of mitigation banks and in lieu
fee programs to compensate for NWP impacts was equivocal. Many
commenters asserted that mitigation banks cannot replace the functions
and values of smaller, scattered wetlands and that the increased use of
mitigation banks and in lieu fee programs will not replace local
wetland functions and values. A couple of commenters were concerned
that consolidation of wetland habitats in a single place could increase
the vulnerability of that single ecological wetland unit, and would not
allow for a mosaic of wetlands. Others argued that mitigation banks
would better compensate for scattered wetland losses by providing
consolidated locations for compensatory mitigation, with greater
chances of success. Some commenters expressed concern that mitigation
banking would disrupt the mitigation sequence process and one commenter
specifically requested that the Corps place stronger emphasis upon
avoidance and minimization of impacts. Many commenters recommended
streamlining the process for establishing mitigation banks, and some
commenters requested modification of the NWP terms and conditions to
encourage the use of mitigation banks. These commenters also requested
that the Corps more clearly establish the policy that on-site
compensatory mitigation may not always be the preferred choice. Several
commenters suggested that mitigation banks should be established in
each watershed. Some commenters expressed concern that mitigation
banks, in some cases, utilize preservation of aquatic resources, which
does not replace lost wetland functions and values, and does not comply
with the goal of ``no net loss'' of wetlands.
We cannot require the establishment of mitigation banks in a
particular watershed or geographic area. Mitigation banks are usually
constructed and maintained by entrepreneurs, who locate mitigation
banks in areas where they believe the established credits will sell
quickly. In the December 13, 1996, Federal Register notice (61 FR
65874-65922), we did not direct Corps districts to require permittees
to use mitigation banks for offsetting wetland losses due to NWP 26,
but suggested that mitigation banks could be used, in addition to in
lieu fee programs, to provide compensatory mitigation for impacts below
1 acre.
Consolidated mitigation methods, including mitigation banks and in
lieu fee programs, are often an efficient means of compensating for
losses of waters of the United States, particularly for multiple small
projects, and may confer benefits to the aquatic environment as well
(see 61 FR 65892). We recognize that mitigation banks and in lieu fee
programs are often more practicable and successful because of the
planning and implementation efforts typically expended on these
projects by their proponents. In contrast, individual efforts to
create, restore, or enhance wetlands to replace small wetland losses
may be unsuccessful because of poor planning and/or construction.
Furthermore, consolidated mitigation efforts are often better monitored
and maintained and often result in the establishment of a larger
contiguous wetland area that benefits the overall local aquatic
environment and many of the species that utilize larger aquatic
habitats. Although smaller, scattered wetland areas that exist in the
landscape as a mosaic provide essential habitat for certain species,
the local changes in land use usually makes it impossible to maintain
those mosaics in any ecologically functional capacity. Recreating those
wetland mosaics is often impractical and it is better to provide
compensatory mitigation through consolidated mitigation methods.
As with all other compensatory mitigation, the use of mitigation
banks and in lieu fee programs does not eliminate the need to avoid
impacts on-site. General Condition 19 of the NWPs requires that
permittees avoid and minimize losses of waters of the United States on-
site to the maximum extent practicable. If the District Engineer
determines that compensatory mitigation is necessary to ensure that the
particular NWP activity results only in minimal adverse effects on the
aquatic environment, individually or cumulatively, then the District
Engineer can require compensatory mitigation to offset the loss of
waters of the United States. Mitigation banks and appropriate in lieu
fee programs can be used to provide the required compensatory
mitigation. The preferred form of compensatory mitigation should be
based on what is best for the aquatic environment, whether the
compensatory mitigation is on-site, off-site, in-kind, or out-of-kind.
Many of the commenters that were opposed to in lieu fee programs
were strongly in favor of mitigation banks. Several of these commenters
stated that mitigation banks have distinct advantages over in lieu fee
programs, since mitigation banks have specific processes to establish
goals, credits, and monitoring. Some commenters believe that in lieu
fee programs compete unfairly with mitigation banks, since they are
easier to establish and are often less costly than mitigation banks.
One commenter requested that in lieu fee programs be prohibited in
areas with established and functional mitigation banks with available
credits.
[[Page 39273]]
Mitigation banks and in lieu fee programs are not common throughout
the country. Therefore, it would be impractical to require their use as
a preferred or sole means of providing compensatory mitigation for
impacts authorized by NWPs. While in lieu fee programs are used in
several Corps districts, efforts continue to ensure that in lieu fee
programs provide adequate compensatory mitigation. District engineers
have the authority to approve or disapprove the use of specific
mitigation banks or in lieu fee programs as compensatory mitigation for
losses of waters of the United States authorized by NWPs. Permittees
should have the flexibility to utilize compensatory mitigation methods
that are within their means to accomplish and meet the requirements to
offset unavoidable losses of waters of the United States. To the extent
practicable, permittees should consider use of approved mitigation
banks and other forms of consolidated compensatory mitigation. District
engineers will evaluate compensatory mitigation proposals for
appropriateness and practicability as indicated in the NWP general
conditions.
A number of commenters expressed concern about the effectiveness of
in lieu fee programs in providing compensatory mitigation. Many
commenters requested the establishment of specific requirements for in
lieu fee programs. Two commenters suggested that the Corps establish a
data collection system for in lieu fee programs, including payments and
program credits, and report this data on an annual basis. Several
commenters noted that in lieu fee programs typically do not require
completion in advance of utilizing credits, as is the case with
mitigation banks. Many commenters stated that payments to in lieu fee
programs do not result in replacement of lost wetland functions and
values. One commenter suggested limiting the use of in lieu fee
programs to compensate for losses of small, low value wetlands and
farmed wetlands.
In lieu fee mitigation programs have been effective in some parts
of the country. Typically these programs are operated by well-
established entities such as State and local government organizations
or conservation groups. District engineers review in lieu fee programs
to determine if they are appropriate for providing compensatory
mitigation for losses of waters of the United States that result from
activities authorized by the Corps regulatory program. The District
Engineer should have a reasonable amount of confidence in the operator
prior to utilizing such areas for compensatory mitigation. Especially
with the NWPs, in lieu fee programs should provide applicants with a
compensatory mitigation option that is efficient and appropriate for
the authorized work. District engineers use their own methods to track
the use of in lieu fee programs. We do not agree that in lieu fee areas
should be limited to small areas and farmed wetlands. When evaluating a
compensatory mitigation proposal, the Corps should consider the action
that is best for the aquatic environment. In some cases, on-site
compensatory mitigation may not be a practicable option because there
may be a low probability of success or adjacent land uses make any type
of on-site compensatory mitigation infeasible. In some locations, an
appropriate in lieu fee program may be most appropriate, while in
another district or watershed, a mitigation bank would be the best
option.
Vegetated Buffers
Some commenters supported the Corps increased emphasis on vegetated
buffers adjacent to waters of the United States, including the use of
vegetated buffers as compensatory mitigation for impacts to waters of
the United States. A number of commenters objected to the requirements
for vegetated buffers, stating that requirements for vegetated buffers,
particularly upland buffers, adjacent to open and flowing waters are
illegal because the Corps would be expanding its jurisdiction to upland
areas. Two commenters said that the vegetated buffers can be used as a
form of compensatory mitigation, but could not be required for an NWP
authorization. One commenter stated that vegetated buffers should not
be considered compensatory mitigation because they do not replace lost
wetland acreage, including functions and values. Many commenters
requested that the Corps provide a more specific definition and minimum
size standards for vegetated buffers. A couple of commenters
recommended specific minimum widths for vegetated buffers. One
commenter suggested a buffer width of 1 or 2 kilometers from the edge
of the wetland to preserve maximum biodiversity. Another commenter
recommended a minimum buffer width of 100 feet from the edge of the
wetland.
We disagree with the assertion that requiring a vegetated buffer as
a condition of an NWP authorization is illegal and an attempt to expand
the Corps jurisdictional authority. The Corps currently has regulatory
authority through the Clean Water Act to require vegetated buffers as a
condition of an NWP authorization because vegetated buffers, including
upland buffers, help prevent degradation of water quality and aquatic
habitat. The establishment and maintenance of wetland or upland
vegetated buffers adjacent to open waters, streams, or other waters of
the United States can be considered compensatory mitigation for losses
of waters of the United States authorized by Corps permits. One of the
goals of the Clean Water Act is the maintenance and restoration of the
chemical, physical, and biological integrity of the Nation's waters.
Regulatory agencies can place any conditions on a permit or
authorization as long as those conditions are related to the activities
regulated by that agency. The Section 404 activities regulated by the
Corps usually cause adverse effects on the aquatic environment. To
offset these adverse effects, we can require measures, such as
vegetated upland buffers adjacent to streams, that prevent or reduce
adverse effects on the aquatic environment. Vegetated buffers,
including uplands, adjacent to open waters of the United States provide
many of the same functions and values of wetlands, such as flood
mitigation, erosion reduction, the removal of pollutants and nutrients
from water, and support aquatic habitat values. In summary, since
vegetated buffers adjacent to open waters, even if they are uplands,
help maintain the physical, biological, and chemical integrity of the
aquatic environment, the Corps can require these buffers as a condition
of a Clean Water Act Section 404 permit. Permit applicants must
recognize that NWPs are optional permits and if the applicant believes
that the NWPs are too restrictive, then he or she can apply for
authorization through the individual permit process.
For the purposes of the Corps regulatory program, vegetated buffers
are areas inhabited by woody or herbaceous plants that are adjacent to
streams, lakes, ponds, wetlands, or other waters of the United States.
Vegetated buffers can be either wetlands or uplands. Mowed lawns are
not considered vegetated buffers, because these areas do not provide
the same functions as areas inhabited by fully grown woody or
herbaceous vegetation. Upland vegetated buffers are generally as
effective at protecting open water quality as wetland buffers, and are
often the only choice where there are no wetlands adjacent to a stream.
Vegetated buffers, including uplands, adjacent to open waters, streams,
and wetlands, should be an integral part of the compensatory mitigation
requirements
[[Page 39274]]
for a particular project. Vegetated buffers can be used as out-of-kind
mitigation to offset part of the wetland loss because they provide
substantial benefits for the local aquatic environment. Vegetated
buffers provide the following functions and benefits to the aquatic
environment: (1) Reducing adverse effects to water quality by trapping
and removing sediments, pollutants, and nutrients from surface runoff;
(2) enhancing infiltration of water into the soil, which allows plants
and microbes to remove nutrients and pollutants from water; (3)
decreasing storm flows to streams, thereby reducing downstream flooding
and degradation of aquatic habitat; (4) decreasing erosion of stream
beds and surrounding land by slowing stormwater runoff velocities and
increasing infiltration; (5) reducing soil erosion by keeping the soil
in place with plant roots; (6) maintaining fish habitat by reducing
water temperature changes; (7) providing detritus from riparian
vegetation that contributes to the aquatic food web; (8) providing
aquatic habitat features such as snags and shade; (9) providing habitat
to a wide variety of aquatic and terrestrial species; and (10)
providing corridors for movement of many species of wildlife.
For the purposes of the NWPs, vegetated buffers should consist
mostly of native trees and shrubs. In drier areas of the United States,
vegetated buffers can consist of herbaceous vegetation, provided the
vegetation is not mowed or removed. Native trees and shrubs should be
planted, where possible, to establish a vegetated buffer where one does
not exist. If the buffer area is degraded or inhabited by invasive or
exotic plant species, then these species should be removed and the area
planted with appropriate native species to the extent practicable.
Districts should normally require vegetated buffers that are
between 50 and 125 feet wide. For streams, the width of the buffer is
measured out from the bank of the stream, not the width across the
stream (i.e., the buffer will be 50 to 125 feet wide on each side of
the stream channel). For other open waters, the width of the buffer is
measured from the bank; if no bank is present, the ordinary high water
mark should be used instead. District engineers will use their
discretion and judgement to determine appropriate vegetated buffer
widths for particular projects. If adequate State or local buffer width
requirements already exist, district engineers should utilize the same
requirements. The width of the vegetated buffer required as part of the
NWP authorization must balance the benefits provided to the aquatic
environment with the uses of the property resulting from the authorized
work. Buffer widths should not be excessive, with little additional
benefits for the aquatic environment. Buffer width requirements can
also depend on the condition of the local watershed. The Corps will
determine what is best for the watershed involved, and what is
practicable to the applicant.
Conservation easements, deed restrictions, or similar restrictions
should be imposed on the vegetated buffer to ensure that the buffer is
maintained. Developers should be encouraged to place vegetated buffers
in community open space areas, especially when such areas are required
by State or local statutes or regulations. Recreational (e.g., hiking,
nature, etc.) trails should generally be constructed outside of the
vegetated buffer area, but these trails may be constructed within the
buffer, provided the buffer is wide enough to accommodate the trail and
the trail is constructed in such a manner so that it does not adversely
affect the functions of the buffer.
Assessing Cumulative Impacts on a Watershed Basis
A number of commenters stated that it is difficult to determine
when an adverse effect on the aquatic environment is minimal on an
individual or cumulative scale. These commenters said that the Corps
needs to utilize technological improvements, such as geographic
information systems, to make these determinations because they believe
the Corps current data collection efforts are inadequate to assess
cumulative adverse effects on the aquatic environment. One commenter
suggested that permit applicants should be required to identify past
and future impacts for projects and that the remaining wetlands on the
site should be deed restricted.
In the July 1, 1998, Federal Register notice, we discussed our
current data collection efforts for NWPs, regional general permits, and
standard permits. We are continuously modifying our methods of data
collection to improve our ability to assess cumulative adverse effects
on the aquatic environment that result from activities authorized by
the Corps regulatory program. For each authorized activity, the United
States Geological Survey (U.S.G.S.) hydrological unit code is entered
in the database to record which watershed the activity is located. This
data, along with other data collected for each authorized activity,
will be used to assess the cumulative adverse effects on that watershed
that result from activities authorized by the Corps.
Since the Corps resources are limited, the amounts and types of
data that can be collected must strike a balance between the amount of
work required to evaluate permit applications and the usefulness of the
data to monitor the cumulative adverse effects of those permitted
activities on the aquatic environment. The data collected by the Corps
regulatory program is limited to the data necessary to assess
cumulative adverse effects so that the Corps can effectively evaluate
permit applications and conduct enforcement and compliance activities.
The Corps recognizes that there are gaps in the data collection effort
because many of the activities authorized by NWPs do not require
preconstruction notification to the Corps. However, in many cases where
the NWP activity does not require notification to the Corps, permit
applicants request that the Corps verify that the proposed work
qualifies for authorization under the non-reporting NWP. The impacts
from these projects are included in the data collected by the Corps, so
the data collection gap is not as great as some critics of the NWP
program believe. We do not have the resources to provide field
verification of the adverse effects of all activities authorized by
NWPs. We also cannot fully monitor all of the compensatory mitigation
that is required as special conditions to many NWP authorizations.
For the proposed new and modified NWPs, we will continue to collect
data on a watershed basis to ensure that the use of the NWPs does not
result in more than minimal adverse effects on the aquatic environment.
The Corps will continue to improve its data collection efforts for all
types of permits, not just NWPs, to better assess the adverse effects
of the Corps regulatory program on the aquatic environment.
When assessing cumulative adverse effects on the aquatic
environment, particularly on a watershed basis, it is important to note
that we can only assess those adverse effects that result from
activities authorized by the Corps pursuant to Section 404 of the Clean
Water Act, Section 10 of the Rivers and Harbors Act, and Section 103 of
the Marine Protection, Research, and Sanctuaries Act. The aquatic
environment is also adversely affected by activities that do not
require a Corps permit. For example, construction of an upland
residential development can result in adverse effects on water quality
and aquatic habitat due to the removal of woody vegetation in upland
riparian zones and surface runoff. Development and landclearing
activities in adjacent or nearby uplands can substantially
[[Page 39275]]
alter the watershed, adversely affecting the local aquatic environment,
but such activities are not regulated under Section 404 of the Clean
Water Act.
Compliance With the Endangered Species Act
A number of commenters indicated that the NWPs do not satisfy the
requirements of the Endangered Species Act (ESA), especially for those
activities that do not require submission of a PCN to the Corps. These
commenters expressed concern that NWPs do not provide the necessary
coordination required by ESA where proposed activities may adversely
affect endangered or threatened species. One commenter stated that an
individual permit should be required for activities within critical
habitat for Federally-listed endangered and threatened species. Several
commenters remarked that the Corps should condition the NWPs to
prohibit activities that adversely affect State-listed endangered or
threatened species. One of these commenters cited the reference to
State-listed endangered or threatened species in the regulations for
the Section 404(b)(1) guidelines (40 CFR part 230). A few commenters
indicated that the NWPs focus too much on wetlands with little
consideration of other aquatic habitats, such as streams and rivers
inhabited by salmon and trout. Several commenters stated that the Corps
is in compliance with the ESA because the NWPs are conditioned so that
no activity authorized by NWPs may jeopardize the continued existence
of a listed species or its critical habitat. These commenters assert
that the Corps should not conduct programmatic formal consultation for
activities that have already been determined not to result in adverse
effects on endangered or threatened species.
The NWP program contains provisions to ensure that activities
authorized by NWPs comply with the ESA. General Condition 11 ensures
that the NWPs do not authorize any activity that is likely to
jeopardize the continued existence of a Federally-listed threatened or
endangered species or a species proposed for designation as a
threatened or endangered species or which is likely to modify the
critical habitat or such species. In addition, an NWP authorization
does not authorize the ``take'' of any Federally-listed threatened or
endangered species. If any listed species or designated critical
habitat may be affected by an activity authorized by NWP, the permittee
is not authorized to begin work until the requirements of the ESA have
been satisfied. The Corps will conduct the coordination necessary to
ensure that activities authorized by NWPs comply with the ESA.
For activities that occur in the vicinity of endangered or
threatened species or their designated critical habitat, division and
district engineers can regionally condition the NWPs to require
notification to the Corps to allow case-by-case review of these
activities and ensure compliance with the ESA. It is unnecessary to
require an individual permit for NWP activities that may affect
endangered or threatened species or designated critical habitat. If the
Corps determines that an NWP activity may affect a Federally-listed
endangered or threatened species, then the Corps will request formal
consultation unless it is not required by 50 CFR Part 402.14(b). After
completion of consultation with the U.S. Fish and Wildlife Service
(FWS) or National Marine Fisheries Service (NMFS), the Corps will
determine whether or not the proposed work will be in compliance with
Section 7(a) of the ESA. After the Corps makes this determination, the
project can be authorized by NWP or the Corps will notify the applicant
that no permit can be issued.
In the proposed General Condition 25, entitled Designated Critical
Resource Waters, we are proposing to prohibit the use of NWPs 7, 12,
14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and 44 in NOAA-designated
marine sanctuaries, National Estuarine Research Reserves, National Wild
and Scenic Rivers, critical habitat for Federally-listed threatened or
endangered species, coral reefs, State natural heritage sites, or
outstanding national resource waters officially designated by the state
where those waters area located. General Condition 25 also states that
discharges are not authorized by NWPs in designated critical habitat
for Federally-listed endangered or threatened species, unless the
activity complies with General Condition 11 and the FWS or NMFS has
concurred in a determination of compliance with this condition. General
Condition 25 is discussed in more detail elsewhere in this Federal
Register notice.
The Corps does consider the effects of NWP activities on State-
listed endangered or threatened species within the overall evaluation
of the proposed activity. The provisions relating to endangered or
threatened species in the Section 404(b)(1) guidelines apply only to
species listed under the Federal Endangered Species Act (see 40 CFR
230.10(b)(3)), although there is some discussion of potential impacts
to State-listed endangered and threatened species in 40 CFR Part
230.30. To address local concerns for the aquatic environment, division
engineers can regionally condition the NWPs to restrict their use for
activities that may adversely affect State-listed species or their
designated critical habitat.
Some commenters questioned the Corps ability to issue any NWPs
prior to completion of programmatic consultation with the FWS and NMFS.
Another commenter recommended that, instead of programmatic ESA
consultation for the NWP, the Corps should conduct consultation at a
district or regional level to establish programmatic or categorical
mechanisms to comply with the ESA. This commenter believes that
programmatic consultation will not adequately address specific ESA
concerns. One commenter noted that the request for formal ESA
consultation cited in the July 1, 1998, Federal Register notice is
inconsistent with the Corps finding that the NWP program complies with
the ESA. Several commenters requested that the Corps conduct an
analysis of the cumulative effects of the NWP program on endangered and
threatened species and their critical habitat. A commenter stated that
the Standard Local Operating Procedures for Endangered Species (SLOPES)
established by some districts are inadequate for complying with ESA.
Two commenters requested clarification as to whether or not the
incidental take provisions under ESA apply to obligate wetland
endangered or threatened species.
We believe that the NWP program complies with the ESA and
adequately addresses concerns for endangered and threatened species and
their designated critical habitat. In spite of the provisions of
General Condition 11 and the ESA Section 7(d) determination issued on
June 10, 1997, which states that the NWPs do not adversely affect
listed species or critical habitat, formal programmatic ESA
consultation for the NWP program was initiated with the FWS and NMFS on
June 4, 1999. The programmatic consultation will provide additional
assurance that the existing NWPs, as well as the proposed new and
modified NWPs, have a formal process to develop any necessary
additional procedures at the district level. The programmatic
consultation will provide further assurance that the NWP program does
not jeopardize the existence of any Federally-listed threatened or
endangered species. Both the programmatic ESA consultation and the
Programmatic Environmental Impact Statement that will be prepared for
the NWP program will address potential cumulative effects on endangered
and
[[Page 39276]]
threatened species and their designated critical habitat. We believe
that the SLOPES help ensure compliance with the ESA at the district
level. Districts can meet with local offices of the FWS and NMFS to
modify or improve their SLOPES.
In addition to NWP General Condition 11, division and district
engineers can impose regional conditions on the NWPs and case-specific
conditions to address endangered or threatened species or their
critical habitat. For example, Corps regional conditions can prohibit
the use of NWPs in designated critical habitat for endangered or
threatened species or require notification for activities in areas
known to be inhabited by threatened or endangered species. Some Corps
districts have conducted programmatic consultation on geographic areas.
These efforts usually consider the NWP program in that particular area.
In summary, General Condition 11, Corps regional conditions, case-
specific special conditions, and SLOPES will ensure that the NWP
program complies with the ESA. General Condition 11 states that the
NWPs do not authorize the ``take'' of any Federally-listed endangered
or threatened species. It does not matter if the species is an
``obligate'' wetland endangered or threatened species.
Additional Issues
In response to the July 1, 1998, Federal Register notice, some
commenters raised several new issues relating to the NWPs. A large
number of commenters believe that the Corps is attempting to expand its
jurisdictional authority by requiring upland vegetated buffers adjacent
to waters of the United States as a condition of the NWPs. Some
commenters stated that the Corps is also trying to expand its
jurisdictional authority by applying the NWPs to activities that
involve excavation of waters of the United States. Several commenters
suggested additional restrictions for the NWPs. Other issues include:
the use of multiple NWPs to authorize a single and complete project
(often referred to as ``stacking'' of NWPs), the Corps data collection
efforts, the use of NWPs on Tribal lands, compliance with Section 106
of the National Historic Preservation Act, enforcement of the NWPs,
property rights issues, and State and local authorities.
Expansion of Jurisdictional Authority: Many commenters questioned
the Corps authority to require upland vegetated buffers adjacent to
open waters, streams, and wetlands, since uplands are not waters of the
United States. Some commenters believe that if vegetated buffers are
necessary to protect water quality, then only the appropriate water
quality certification agency can require the vegetated buffer. Other
commenters stated that the Corps is exceeding its regulatory authority
by including excavation activities in the new NWPs.
We have the legal authority to require vegetated buffers adjacent
to streams and other waters through the Clean Water Act. The goals of
the Clean Water Act include the maintenance of the biological,
chemical, and physical integrity of the aquatic environment. The
activities regulated by the Corps pursuant to Section 404 of the Clean
Water Act and Section 10 of the Rivers and Harbors Act usually cause
adverse effects on the aquatic environment. As compensatory mitigation
for losses of waters of the United States, we can require measures,
such as vegetated upland buffers adjacent to waters, that offset such
adverse effects. Since vegetated buffers adjacent to waters, even if
they are uplands, help maintain the physical, biological, and chemical
integrity of the aquatic environment, the Corps can require these
buffers as a condition of a Clean Water Act Section 404 permit.
Another activity that many commenters believe to be an attempt to
expand the Corps regulatory authority is the inclusion of excavation
activities in the NWPs, particularly in the definition of ``loss of
waters of the United States.'' These commenters cited the recent
decision by the United States Court of Appeals for the District of
Columbia which upheld the United States District Court for the District
of Columbia's decision in the American Mining Congress v. Corps of
Engineers lawsuit. This lawsuit challenged the Corps and EPA's revised
definition of ``discharge of dredged material'' that was promulgated on
August 25, 1993 (58 FR 45008). The revised definition of ``discharge of
dredged material'' was overturned because the District Court held that
the rule was outside of the agencies' statutory authority and contrary
to the intent of Congress by asserting Clean Water Act jurisdiction
over activities where the only discharge associated with the activity
is ``incidental fallback.'' These commenters requested that the Corps
remove all references to excavation activities from the new and
modified NWPs.
Although the revised definition of ``discharge of dredged
material'' published on August 25, 1993, was overturned by these recent
court decisions, certain excavation activities are still regulated
under Section 404 of the Clean Water Act and require a Corps permit.
Excavation activities that result in redeposits of dredged material
into waters of the United States other than incidental fallback require
a Section 404 permit. All other excavation activities, if they result
in the replacement of an aquatic area with dry land or changing the
bottom elevation of a waterbody require a Section 404 permit, and may
be authorized by NWPs if they comply with the terms and limits of the
NWPs. Excavation activities that result only in discharges classified
as ``incidental fallback'' do not require a Section 404 permit. We have
retained the excavation language in the proposed new and modified NWPs
and the definition of ``loss of waters of the United States'' to make
it clear that some excavation activities still require a Section 404
permit, and if so, may be authorized by NWPs. A final rule was
published in the May 10, 1999, issue of the Federal Register (64 FR
25119-25123) with revisions to the Clean Water Act regulatory
definition of ``discharge of dredged material.'' The revision clarifies
the definition of ``discharge of dredged material'' by deleting
language from the regulatory definition at 33 CFR Part 323.2(d) that
was held by the Court to exceed the Clean Water Act statutory
authority.
Proposed Additional Restrictions for NWPs: In spite of the
increased emphasis on regional conditioning for the new and modified
NWPs proposed in the July 1, 1998, Federal Register notice, many
commenters recommended additional restrictions that they believe should
be applied to all NWPs. Several commenters recommended prohibiting the
use of NWPs to authorize activities in wetlands that cannot be replaced
though wetland restoration or creation, such as bogs, fens, forested
wetlands, and vernal pools. One commenter advocated prohibiting the use
of NWPs to authorize activities in endangered ecosystems, as identified
by the National Biological Service. Two commenters recommended
excluding NWPs from areas subject to watershed restoration plans, since
many of these projects are funded by Federal agencies. One commenter
recommended allowing the NWPs to be used only in states that have
developed conservation plans that protect water quality, with no net
loss of wetland function and acreage as a goal. This commenter
described the State conservation plan as requiring a fee system to
achieve the no net loss goal through restoration, preservation, and
management of wetlands, with the funds from fees being spent only on
projects, not overhead. Several
[[Page 39277]]
commenters recommended prohibiting the use of NWPs in watersheds that
have lost more than 50% of their wetlands. A number of commenters
recommended excluding NWPs in watersheds upstream or within Outstanding
National Resources Waters and within critical resource waters. One of
these commenters suggested that the Corps solicit public comments to
identify critical resource waters. Regional conditions can be used to
prohibit or restrict the use of NWPs from high value waters, especially
if those waters are difficult to restore or create. We do not agree
that NWPs should be excluded from use in areas under watershed
restoration plans. Some activities authorized by NWPs may comply with
the watershed restoration plan, and some compensatory mitigation
required by NWP authorizations for work within that watershed may
provide net benefits for the watershed. Prohibiting the use of NWPs in
watersheds that have lost greater than 50% of their wetlands would be
impossible to implement, because we cannot identify with a defensible
degree of certainty the extent of jurisdictional wetlands that existed
in that watershed. These commenters did not provide any suggestions to
determine the historic extent of wetlands in a watershed or recommend a
date to determine the historic baseline for wetlands. In the October
14, 1998, Federal Register notice, we proposed to exclude the NWPs from
critical resource waters and requested comments on how to identify
those waters for a national NWP general condition. This proposal is
discussed elsewhere in this Federal Register notice.
Many commenters, notably the Federal Emergency Management Agency
(FEMA), recommended restricting the use of NWPs within floodplains.
FEMA stated that the use of NWPs in the 100-year floodplain is contrary
to the Administration's goal of reducing natural hazard impacts on
citizens because the NWPs provide Federal authorization for activities
in floodplains. FEMA believes that the Corps should only authorize
activities within designated Special Flood Hazard Areas through the
individual permit process and that the NWPs should contain a provision
stating that the NWP program does not usurp State and local floodplain
management programs and regulations governing activities within
floodplains. A few commenters stated that the NWPs should not authorize
activities that result in a net loss of flood storage capacity within
the 100-year floodplain. Several commenters recommended excluding the
NWPs from watersheds or areas upstream of communities that have been
designated as flood disaster areas in the past 10 years.
In the October 14, 1998, Federal Register notice, we proposed to
prohibit the new NWPs from authorizing permanent above-grade wetland
fills in waters of the United States within the 100-year floodplain, as
mapped by FEMA on their Flood Insurance Rate Maps. This proposal is
discussed elsewhere in this Federal Register notice.
A number of commenters recommended excluding the use of NWPs in
tributaries identified as impaired through Section 303(d) of the Clean
Water Act due to the loss of wetlands. Several commenters suggested
restricting the use of NWPs in impaired waters and requested that the
Corps solicit public comments on how to identify impaired waters. Other
commenters recommended suspending the use of NWPs in areas designated
as source water zones under the Safe Drinking Water Act or prohibiting
the use of NWPs in drinking supply watersheds.
In the October 14, 1998, Federal Register notice, we proposed to
limit the use of NWPs in waterbodies and aquifers identified by States
as impaired due to the loss of wetlands. This proposal is discussed
elsewhere in this Federal Register notice. Division and district
engineers can regionally condition any of the NWPs to prohibit or
restrict their use in designated source water zones under the Safe
Drinking Water Act or drinking water supply watersheds. District
engineers can also exercise discretionary authority for activities that
may result in more than minimal adverse effects on these areas.
Some commenters requested that the Corps prohibit the use of NWPs
in waters or watersheds with designated critical habitat for Federally-
listed endangered or threatened species. One commenter recommended
excluding the use of NWPs in habitats designated by the FWS or NMFS as
crucial for endangered or threatened species, unless the work is for
habitat restoration.
General Condition 11 and SLOPES that are developed by Corps
districts adequately address the use of NWPs in designated critical
habitat for Federally-listed endangered or threatened species. Please
also see the discussion of General Condition 25 elsewhere in this
Federal Register notice.
Use of Multiple Nationwide Permits: A number of commenters objected
to the use of more than one NWP for a single and complete project,
believing that this practice results in more than minimal adverse
effects on the aquatic environment. Several commenters objected to
adding any restrictions against the use of more than one NWP to
authorize a single and complete project, stating that it does not
necessarily result in more than minimal adverse effects on the aquatic
environment. One of these commenters believes that the notification
process is sufficient to determine when specific projects requiring the
use of more than one NWP will result in more than minimal adverse
effects on the aquatic environment.
We are proposing to modify General Condition 15 to address concerns
for the use of multiple NWPs to authorize a single and complete
project. The proposed modification of this general condition does not
allow more than one NWP to authorize a single and complete project if
the acreage loss of waters of the United States exceeds the highest
specified acreage limit of the NWPs used to authorize that project. In
the proposed NWPs we have removed the conditions that address the use
of specific NWPs with those NWPs. The proposed modification of General
Condition 15 is discussed in further detail below.
Data Collection: Several commenters believe that the Corps current
data collection efforts fail to effectively monitor both the individual
and cumulative adverse effects on the aquatic environment resulting
from the use of the NWPs. These commenters stated that the Corps does
not know how many NWP activities that do not require submission of a
PCN occur, the acreage of impact authorized by these non-reporting
NWPs, and what types of compensatory mitigation, if any, are provided
to offset losses of waters of the United States authorized by these
NWPs. A number of commenters requested that the Corps track losses of
waters of the United States authorized by non-reporting NWPs. One
commenter stated that the Corps should not limit the use of NWPs until
it knows for certain how many wetlands are lost each year.
For those activities that are reported to the Corps, including
activities authorized by NWPs, regional general permits, and individual
permits, the Corps monitors the individual and cumulative adverse
effects on the aquatic environment. The individual adverse effects are
evaluated on a case-by-case basis when the Corps reviews the PCN or
conducts the public interest review. It should also be noted that many
NWP permittees request that the
[[Page 39278]]
Corps provide written confirmation that the proposed work is authorized
by NWP, even though submission of a PCN to the Corps is not required.
This allows the Corps to track many of the activities that are
authorized by non-reporting NWPs and include the adverse effects of
those activities in its analysis of individual and cumulative adverse
effects, plus any compensatory mitigation provided to offset those
impacts.
Cumulative adverse effects on the aquatic environment that result
from activities authorized by the Corps regulatory program are assessed
by district engineers on a watershed or regional basis. District
engineers utilize data collected on authorized activities for which the
Corps issues general permit authorizations or standard permits, as well
as estimates of the number of activities authorized by non-reporting
general permits. Based on the actual and estimated impacts to aquatic
resources, district engineers determine if the cumulative adverse
effects on the aquatic environment resulting from the use of general
permits, including NWPs, are more than minimal. Activities authorized
by individual permits are not required to result in minimal adverse
effects on the aquatic environment because that statutory requirement
applies only to general permits. To prohibit the use of general permits
in a watershed or other geographic area, the District Engineer must
demonstrate that more than minimal cumulative adverse effects on the
aquatic environment are caused by the Corps permit decisions. This
demonstration must include clear, extensive, and unequivocal evidence
that activities regulated pursuant to Section 404 of the Clean Water
Act or Section 10 of the Rivers and Harbors Act are causing the
cumulative adverse effects on the aquatic environment, not unregulated
activities. Activities that are not regulated by the Corps program are
not factored into this analysis because they are outside of the purview
of the Corps.
Other commenters stated that inconsistencies in data collection
efforts exist between Corps districts and that the data collected by
the Corps is inaccurate. They said that some districts do not collect
the same types of data that other districts collect. These commenters
assert that these inconsistencies result in inaccurate data reported at
a national level. One commenter stated that the Corps should make all
NWP information, such as the number of PCNs, NWP verifications,
authorized losses, mitigation, and enforcement actions available on the
Internet.
There are standard data collection requirements for the Corps
regulatory program. The data collected by each district for both
general and individual permits was discussed in the July 1, 1998,
Federal Register notice. As stated in the July 1, 1998, Federal
Register notice, data collection requires a balance between the amount
of work required to evaluate applications for Corps permits and the
usefulness of the collected data to assess adverse effects of those
activities on the aquatic environment. The specific types of data
collected are limited to data that is necessary to evaluate the
cumulative adverse effects on the aquatic environment that result from
activities authorized by the Corps, while allowing the district the
time and personnel to effectively evaluate permit applications and
conduct enforcement activities. There are minimum standards for data
collection for the Corps regulatory program, but some districts may
collect additional data for their own use, if it is needed to satisfy
other requirements. In the future, the Corps may modify its data
collection standards to improve its assessment of the adverse effects
of regulated activities on the aquatic environment and to provide more
information to the public concerning the regulatory program. To make
NWP program data, such as the number of PCNs, NWP verifications,
authorized losses, mitigation, and enforcement actions, available for
public access on the Internet is impractical, since each district
maintains its own regulatory database.
Tribal Issues: Several comments were received from Native American
organizations regarding tribal issues relating to the NWPs. Some of
these commenters expressed concern that use of the NWPs would result in
adverse effects on water quality and fish habitat, and that the tribes
would not receive notification for projects on tribal land. One
commenter requested that the Corps add the following sentence at the
end of General Condition 8, Tribal Rights: ``Nothing in this permit
shall be construed to be authority or permission to conduct
development, construction, or any other activity in waters of the
United States with the exterior boundaries of a Federally-recognized
Indian tribe in the absence of prior authority or permission being
granted by such Tribal government.'' According to this commenter, some
people believe that an NWP authorization constitutes permission to do
work on Tribal lands without prior permission of the Tribe. Another
commenter opposes issuance of NWP authorizations for activities within
the boundaries of Tribal lands without the opportunity for public
notice and comment. One commenter stated that reservation watersheds
should be considered high value waters and receive additional
protection and that the Corps should consult with the appropriate
Tribal governing authority prior to issuing NWP authorizations for
activities in a reservation watershed. One commenter said that the
procedures of the Corps Native American Policy must be followed prior
to the issuance of the NWPs.
Division engineers can regionally condition the NWPs to prohibit or
limit their use in high value waters, including high value waters on
Tribal lands. We have provided opportunities to discuss potential
regional conditions with Tribes, through district public notices for
the new and modified NWPs. Tribes with Section 401 authority can deny
water quality certification for the NWPs and require individual 401
certifications, which would allow those Tribes to review all proposed
NWP activities and determine if those activities meet their water
quality standards.
As with all Corps permits, the NWPs do not convey any property
rights or any exclusive privileges (see 33 CFR Part 320.4(g) and the
``Further Information'' section of the NWPs). Issuance of an NWP
authorization does not preclude the permittee from obtaining permission
from the appropriate Tribal government, if such permission is
necessary. Therefore, it is unnecessary to add the requested language
to General Condition 8. Concerns for high value waters that occur on
Tribal lands are more appropriately addressed through the regional
conditioning process, but we disagree with the assertion that all
reservation watersheds are high value waters.
Compliance with Section 106 of the National Historic Preservation
Act: Several commenters expressed concern regarding how the new and
modified NWPs will comply with Section 106 of the National Historic
Preservation Act (NHPA) and how the permittee will know if the proposed
work will affect a historic resource. Another commenter stated that the
NWP program is not in compliance with the NHPA and its implementing
regulations at 36 CFR Part 800, because the 5-day agency coordination
period for PCNs is too short, since a 30-day comment period is required
by 36 CFR Part 800.2.
NWP General Condition 12 addresses compliance with Section 106 of
the NHPA. This general condition states that any activity which may
affect
[[Page 39279]]
historic properties listed, or eligible for listing, in the National
Register of Historic Places is not authorized, unless the District
Engineer has complied with the provisions of 33 CFR Part 325, Appendix
C. For activities authorized by non-reporting NWPs, permittees
concerned about compliance with General Condition 12 should contact the
State Historic Preservation Officer (SHPO) to determine if the proposed
work will affect historic properties. For NWP activities that require
submission of a PCN to the Corps, the Corps will evaluate the PCN to
determine if coordination with the SHPO is necessary to ensure
compliance with the NHPA. In areas such as designated historic
districts, division engineers can regionally condition the NWPs to
require coordination with the SHPO to ensure compliance with the NHPA.
The Corps regulations for ensuring compliance with the NHPA are found
at 33 CFR Part 325, Appendix C, not 36 CFR Part 800.
Enforcement: Several commenters stated that the proposed new and
modified NWPs did not mention enforcement. These commenters are
concerned that the terms and limits of the NWPs may be largely ignored
unless enforcement is specifically addressed in the text of the NWPs.
Another commenter said that the discussion of the Corps data collection
procedures did not address how many enforcement actions were taken on
projects that violated NWP terms and conditions. A number of commenters
expressed concern that the requirements for on-site avoidance and
minimization are not enforced. Several commenters believe there is a
lack of monitoring and enforcement of general permits, including NWPs.
Enforcement of Corps permits, including NWPs, is addressed in 33
CFR Part 326. District engineers use discretion to enforce non-
compliance with the terms and conditions of the NWPs, including any
regional conditions or case-specific conditions. Although the
discussion of the Corps data collection procedures did not specifically
address enforcement activities, these activities are included in our
data collection systems. We conduct compliance reviews to determine if
permittees do the work in accordance with NWP authorizations, including
any requirements for avoidance and minimization. Although Corps
districts cannot conduct compliance reviews for every activity
authorized by NWPs, they will conduct compliance reviews to the extent
that their district resources allow. Enforcement activities will be
prioritized by first investigating suspected violations that are
reported by citizens and then performing compliance checks on other
projects.
Other Issues: Two commenters believe that the proposed new and
modified NWPs infringe upon individual property rights and that the
Corps does not have the authority to require compensatory mitigation
that is not directly proportional to the adverse effects of the
authorized work. Several other commenters requested that the Corps
adopt a separate appeals process for the NWP program, similar to the
process currently being developed for individual permits. Several
commenters requested that the Corps implement an appeals process for
jurisdictional determinations. One commenter requested that all of the
NWPs include a condition requiring deed restrictions for all remaining
wetlands on the property. One commenter stated that the proposed NWPs
are contrary to the Fair Housing Act because the NWPs make it more
difficult to build affordable housing.
For certain types of activities, the proposed new and modified NWPs
provide property owners and project proponents with an efficient means
of obtaining the authorizations necessary to comply with Section 404 of
the Clean Water Act and Section 10 of the Rivers and Harbors Act,
provided those activities result in minimal adverse effects on the
aquatic environment, individually or cumulatively. The NWPs allow
property owners to use their land in compliance with these Federal
laws. District engineers can require compensatory mitigation that is
necessary to offset the losses of waters of the United States and
ensure that the authorized work, with compensatory mitigation, results
in minimal adverse effects on the aquatic environment.
We believe that it is unnecessary to develop a separate appeals
process for the NWP program. It is important to recognize that the NWPs
are optional permits. If a permittee does not want to comply with the
terms and conditions of the NWP authorization, he or she can request
authorization through the individual permit process. If the prospective
permittee objects to the terms and conditions of the individual permit
or is denied an individual permit, then he or she could use the
regulatory appeals process, once it is implemented. We are not certain
when an appeals process for jurisdictional determinations will become
effective.
We cannot condition the NWPs to require deed restrictions on all
remaining wetlands on the property for a particular project, unless the
deed restriction is for a compensatory mitigation requirement that is
fulfilled through the preservation of wetlands on the property. If
there are remaining wetlands on the property after the completion of
the authorized work, the landowner must obtain another Section 404
permit to do any further work on the property that involves discharges
of dredged material into waters of the United States. Requiring a deed
restriction for all remaining waters of the United States on the
property may be considered as a taking of private property, unless the
waters to be protected by the deed restriction are used to satisfy a
compensatory mitigation requirement.
We do not agree that the proposed new and modified NWPs violate the
Fair Housing Act. The proposed NWPs will provide developers with an
expedited permit process that authorizes activities in waters of the
United States that have minimal adverse effects on the aquatic
environment. Although the proposed new and modified NWPs contain
conditions that provide additional protection for the aquatic
environment, which may increase costs for some builders, we still
believe that the NWPs are a cost-effective means of complying with the
Clean Water Act. It is important to remember that NWPs and other
general permits are optional permits, and if the project proponent does
not want to comply with all terms and conditions of the NWP, then he or
she can apply for an individual permit.
One commenter requested that the new NWPs authorize water
impoundments and other water development activities that have minimal
adverse effects. Another commenter stated that the NWPs should
authorize the construction of water diversion, storage, and reuse
facilities. Another commenter suggested that NWP 16 requires revision
because the quality of return water from the contained upland disposal
site should be addressed through Section 402, not Section 401, of the
Clean Water Act.
During the development of the new NWPs to replace NWP 26, we found
that the use of NWP 26 to authorize discharges of dredged material into
waters of the United States for the construction of water impoundments
and water diversion, storage, and reuse facilities was not widespread
across the country. We believe that it is more appropriate for Corps
districts to develop regional general permits for these activities,
where the construction of impoundments occurs regularly with minimal
adverse effects on the aquatic environment. The citation in NWP 16 to
[[Page 39280]]
Section 401 of the Clean Water Act is correct, because the runoff or
overflow from a contained land or water disposal area has been defined
as a ``discharge of dredged material,'' which requires a Section 401
water quality certification (see 33 CFR Part 323.2(d)).
General Comments on October 14, 1998, Federal Register Notice
Many commenters were generally in favor of the proposed
restrictions on NWP activities within the 100-year floodplain,
designated critical resource waters, and impaired waters published in
the October 14, 1998, Federal Register notice, but stated that the
proposed changes still do not provide enough environmental protection
and further restrictions on the NWPs are needed. A large number of
commenters objected to the proposed additional restrictions, stating
that the proposal contained little factual basis, the proposal was too
vague to allow meaningful comment, or the proposal was unsupported
because it did not contain an analysis of the potential effects it
would have on the regulated public. Several commenters said that this
proposal was based on an inadequate administrative record and that
there is little or no documentation supporting the need for these
additional restrictions. These commenters requested that the Corps
demonstrate that the relevant factors have been considered when it
makes its final decision concerning these restrictions and supplement
its record to justify the need for these limitations if they are
adopted. A few commenters requested that the Corps conduct an analysis
of the effects of the proposed additional restrictions including: (1)
The land area affected by the proposal; (2) the environmental benefits;
(3) the costs to the regulated public, including the cost of compliance
and potential delays; and (4) the workload implications to the Corps
and other agencies. Many of these commenters stated that the proposed
restrictions would be too burdensome to the regulated public, with few
tangible added environmental benefits. Other objections expressed by
many commenters are that the proposed restrictions would result in more
activities requiring individual permits, they would remove any
streamlining from the permit process provided by the NWPs, and they
would result in increased costs and delays to the regulated public.
The NWP restrictions proposed in the October 14, 1998, Federal
Register notice were intended to solicit comments from the public to
provide the Corps with information regarding their effects on the
regulated public, problems with implementation of the proposed
restrictions, how to identify the areas that should be subject to the
restrictions, and to which NWPs the restrictions should apply. As
discussed below, we have thoroughly evaluated all of the comments
received in response to the October 14, 1998, Federal Register notice
and have made some changes to the proposed restrictions based on those
comments. These additional NWP restrictions could create substantial
burdens for the regulated public, because many project proponents will
be required to apply for an individual permit or provide additional
information to demonstrate compliance with these new NWP conditions. We
believe that the proposed new restrictions will result in better
protection of the aquatic environment and are necessary to address
certain public interest factors, such as flood hazards, floodplain
values, and high value waters.
A couple of commenters requested that the Corps provide the public
with another opportunity to comment on the proposed restrictions, based
on information provided by comments received in response to the October
14, 1998, Federal Register notice. One commenter stated that the
proposal violates the Unfunded Mandates Reform Act by not conducting a
regulatory assessment for each proposed restriction. Another commenter
believes that the proposal is contrary to Section 404(e)(2) of the
Clean Water Act, which requires a public hearing before revoking or
modifying general permits.
Because of the modified public participation process the public
has, with this Federal Register notice, another opportunity to comment
on the proposed restrictions, with more complete information to
evaluate those restrictions. Since the proposed restrictions may be
implemented as NWP general conditions and are not new regulations, we
are not required to conduct a regulatory assessment pursuant to the
Unfunded Mandates Reform Act. The proposed restrictions do not
substantially change the NWPs themselves, so we are not required to
conduct a public hearing in accordance with Section 404(e)(2) of the
Clean Water Act.
A number of commenters stated that the goals of the proposed
additional NWP restrictions can be achieved through other means,
instead of establishing national conditions for the NWP program. These
commenters believe that the use of existing NWP general conditions,
regional conditions, revocation of NWPs in certain geographic regions,
preconstruction notifications, avoidance and minimization requirements,
and discretionary authority are adequate to ensure that the NWPs do not
authorize activities with more than minimal adverse effects to
designated critical resource waters and impaired waters. Examples of
general NWP requirements cited by some of these commenters include the
establishment and maintenance of vegetated buffers adjacent to open
waters and streams, water quality management plans, stormwater
management, maintenance of water flows, and compensatory mitigation.
Some commenters said that the proposed restrictions are more
appropriately handled by State and/or local governments. Several
commenters stated that the proposed limitations should be done through
regional conditions instead of the NWP general conditions.
We agree that some of the goals of proposed restrictions can also
be achieved through some of these means, but to ensure that concerns
for floodplains, impaired waters, and designated critical resource
waters are addressed consistently across the country, we believe that
these restrictions should be implemented as NWP general conditions.
Many commenters objected to the proposal because terms such as
``critical resource waters'' and ``impaired waters'' were not defined.
Other commenters based their objections on estimates that the proposed
restrictions would exclude the use of NWPs from the approximately 40%
of the Nation's waters that are considered impaired and the 8% of the
land area of the continental United States that is within the 100-year
floodplain. One commenter believes that the proposed restrictions are
unlikely to result in a net increase in wetlands or improve water
quality.
One of the objectives of the October 14, 1998, Federal Register
notice was to solicit public comment on definitions for these terms and
criteria to identify critical resource waters and impaired waters. We
received many recommendations to help us identify those waters
nationally. Each of the proposed restrictions on the NWP program are
discussed below in separate sections. The intent of the proposed
restrictions is to better protect the aquatic environment, not to
produce a net increase in wetlands.
A large number of commenters supported the Corps decision to allow
public comment on the final NWPs and final Corps regional conditions. A
couple of commenters requested a 60-day comment period instead of a 45-
day
[[Page 39281]]
comment period. Two commenters asked if the Section 401 agency will
have another opportunity to evaluate any changes to the NWPs that may
occur as a result of comments received in response to that Federal
Register notice. These commenters stated that the 401 agency should
have another period of review to make new Section 401 determinations.
Another commenter stated that 60 days is insufficient for Tribes to
make Section 401 or CZM determinations on the new NWPs because EPA must
approve the Tribes' application to administer Section 401 water quality
standards and approve those standards.
We believe that 45 days is an adequate amount of time for the
public to comment on the draft new and modified NWPs and Corps regional
conditions because of the previous opportunities for public comment.
Because of the changes to the issuance process for the proposed new and
modified NWPs, the 401 and CZMA agencies will make their determinations
based on final NWPs and Corps regional conditions, since those NWPs and
regional conditions will be issued before the final 60-day WQC/CZMA
determination period begins. If a Tribal agency does not currently have
EPA approval to administer Section 401 water quality standards or EPA
has not yet approved their water quality standards, then the agency
that currently has Section 401 authority must make the determination.
Withdrawal of NWP B
In response to the October 14, 1998, Federal Register notice
announcing the Corps withdrawal of the proposed NWP B for master
planned development activities, a large number of commenters expressed
their support for the withdrawal of that proposed NWP. On the other
hand, many commenters objected to the withdrawal of NWP B. A number of
commenters believe that the Corps did not consider all comments
received in response to the July 1, 1998, Federal Register notice and
that the decision to withdraw NWP B was premature. These commenters
stated that the Corps should have announced its decision to withdraw
NWP B when the other proposed NWPs are issued. Several of these
commenters requested that the Corps provide documentation explaining
this decision. Several commenters recommended that the Corps repropose
NWP B.
We fully considered all comments received in response to the
proposal to issue NWP B for master planned development activities. The
decision to withdraw NWP B from the proposed new and modified NWPs was
discussed in the October 14, 1998, Federal Register notice, but we will
provide further detail below.
One of the most important factors in the decision to withdraw NWP B
is the difficulty in providing a clear, easy to understand, definition
for the term ``Master Planned Development,'' to be used in the context
of the NWP. Without a clear definition of this term, there will be much
confusion for the Corps and the regulated public concerning which
developments could be authorized by this NWP. The comments received in
response to the July 1, 1998, Federal Register notice provide ample
evidence of the potential problems with implementing this NWP, because
of the difficulty in producing a definition that is easily understood.
Many commenters believe that any type of master planned development,
particularly those approved by State or local agencies, would qualify
for NWP B. This is simply an incorrect assumption which emphasized the
difficulties in implementing this NWP. The intent of NWP B was to
authorize developments that are designed, constructed, and managed to
conserve the functions and values of waters of the United States on the
project site. For these developments, the aquatic environment receives
equal consideration to the development, and the development is designed
to protect the local aquatic environment. We may repropose NWP B when
we have formulated a definition that better supports the intent of the
NWP and have resolved other concerns associated with the proposed NWP.
Limiting the Use of NWPs Within the 100-Year Floodplain
In the October 14, 1998, Federal Register, we proposed to prohibit
the use of the new and modified NWPs to authorize permanent, above-
grade wetland fills in the 100-year floodplain as mapped by the Federal
Emergency Management Agency (FEMA) on its Flood Insurance Rate Maps. We
also requested comments regarding the applicability of this restriction
to existing NWPs, as well as the proposed new and modified NWPs.
Nearly all of the correspondence received in response to the
October 14, 1998, Federal Register notice commented on this proposed
restriction. Most of the proponents stated that the restriction should
be expanded to apply to all 100-year floodplains, not just the 100-year
floodplains mapped by FEMA, because further restriction is necessary to
safeguard wetlands for protection against floods. One commenter said
that the condition should be expanded to include riparian buffers of
300 feet from all rivers and streams and should address any uses of
NWPs in these areas, not merely above-grade fills in waters of the
United States. A few of the commenters recommended specific NWPs to be
included in this condition. Collectively, every NWP was recommended for
inclusion. Many commenters objecting to the proposed restriction
included State and local flood control agencies that voiced their
concern that essential public facilities may need to be sited within
the floodplain in order to properly function. They stated that all
municipalities need the ability to build and maintain their urban
drainage infrastructure without undue delay and expense so that it
operates as originally designed for flood control and/or water quality
enhancement purposes. Specifically, they said that the use of NWPs 3
and 31 to maintain these facilities should be exempt from this
condition.
We are proposing to add General Condition 27 to the NWPs to
restrict or prohibit the use of NWPs 12, 14, 21, 29, 39, 40, 42, 43,
and 44 to authorize permanent, above-grade fills in waters of the
United States within the 100-year floodplain. For these NWPs,
prospective permittees must notify the District Engineer in accordance
with General Condition 13. For NWPs 21, 29, 39, 40, 42, 43, and 44, the
notification must include documentation that the proposed project will
not involve discharges of dredged or fill material into waters of the
United States resulting in permanent, above-grade fills in waters of
the United States within the FEMA-mapped 100-year floodplain. If the
FEMA map is out of date or the 100-year floodplain is not mapped, the
documentation should be from the local floodplain authority. This
general condition is not restricted to 100-year floodplains mapped by
FEMA on its Flood Insurance Rate Maps. Instead, this general condition
would apply to all 100-year floodplains, except in 100-year floodplains
at the point in the watershed where the drainage area is less than 1
square mile. In those areas where no FEMA maps exist, or the FEMA maps
are out-of-date, the prospective permittee must submit documentation to
the District Engineer from the local official with authority to issue
development permits for activities in the 100-year floodplain that the
proposed work is outside of the 100-year floodplain.
Proposed General Condition 27 also contains a presumption that NWP
12 and 14 activities resulting in permanent, above-grade fills in
waters of the United States within the 100-year floodplain
[[Page 39282]]
will cause more than minimal adverse effects. However, this presumption
is rebuttable and the proposed work can be authorized by NWPs 12 or 14
if the prospective permittee clearly demonstrates to the District
Engineer that the proposed work and associated mitigation will not
decrease the flood-holding capacity of the waterbody and will not cause
more than minimal changes to the hydrology, flow regime, or volume of
waters associated with the 100-year floodplain. The documentation
rebutting this presumption must include proof that FEMA, or a state or
local floodplain authority through a licensed professional engineer,
has approved the proposed project and provided a statement that the
project does not increase flooding or more than minimally alter
floodplain hydrology or flow regimes.
Expanding proposed General Condition 27 to prohibit the use of all
NWPs within the 100-year floodplain, regardless of whether or not the
authorized activity would result in above-grade wetland fills, would
unnecessarily prohibit NWP activities that have little or no effect on
floodplain functions or values. While a 300-foot buffer may be within
the 100-year floodplain of some waterbodies, this would be an excessive
requirement for waterbodies with narrow floodplains. We believe that
certain NWP activities which result in permanent, above-grade fills in
waters of the United States within the 100-year floodplain have the
potential to impact water quality, especially during flood events, and
therefore should be subject to the restrictions of this condition. We
concur with the flood control agencies contentions that municipalities
need the ability to build and maintain their urban drainage
infrastructure without undue delay and expense so that those facilities
operate as originally designed for flood control and/or water quality
enhancement purposes. Lacking general support for including the
existing NWPs in this proposed condition, and acknowledging that not
all activities authorized by the existing NWPs will result in more than
minimal adverse effects to 100-year floodplains, we are proposing to
include NWPs 12, 14, 21, 29, and 40 in General Condition 27, as well as
NWPs 39, 42, 43, and 44. Furthermore, we have determined that the
proposed NWP 41, which authorizes reshaping existing drainage ditches,
would not result in any appreciable adverse impacts to the floodplain
and are proposing to exclude this NWP from General Condition 27.
Many commenters stated that FEMA maps are inaccurate and
incomplete, mapping mostly urban areas and leaving rural areas
unprotected. Others were concerned about what information will be used
to determine whether a project is within the 100-year floodplain. Many
commenters also stated that the condition will result in greatly
increased numbers of individual permits and that the area of land
encompassed by the 100-year floodplain prohibition is so extensive as
to make use of NWPs with this condition extremely prohibitive.
Additionally, the Corps has provided no evidence to support their
notion that use of any particular NWP to authorize fills in floodplains
has contributed to, or threatens to contribute to, the frequency or
severity of flood events. They state the burden is on the Corps to
develop a factual record to justify its proposed regulatory actions.
FEMA maps are available for review at local FEMA or Corps offices
for determining the applicability of this condition to the applicant's
proposed project. We agree that applying General Condition 27 to NWPs
12, 14, 21, 29, 39, 40, 42, 43, and 44, will significantly increase the
number of individual permit applications processed by the Corps.
Additionally, we have determined that this condition covers
approximately 55 million acres of wetlands which fall within the 100-
year floodplain, a large amount of wetlands regulated under Section 404
of the Clean Water Act.
In response to the July 1, 1998, Federal Register notice, FEMA
provided the following comments: (1) the replacement NWPs cover a much
greater geographical area than the existing NWP 26 and therefore need
to consider project impacts within the 100-year floodplain; (2) when
flood capacity within the floodplain is diminished due to authorized or
unauthorized construction in wetland areas, flooding in other areas is
likely to increase; and (3) it is the responsibility of the Corps under
Executive Order 11988, entitled Floodplain Management, to evaluate all
activities in or affecting floodplains. Based upon these premises, the
Corps feels it is necessary to impose this condition on those specific
NWPs, which could potentially impact the flood capacity of the
floodplains.
Most of those opposed to the proposed general condition stated that
it does not fulfill the congressional intent to implement a streamlined
permitting process for activities resulting in minimal adverse
environmental effects on the aquatic environment. They also state that
the Corps is not authorized by Congress to become a regulatory
authority with regards to controlling floodplain activities. A large
number of commenters stated that the condition provides for dual
regulation of the 100-year floodplains, through the Corps and FEMA.
These commenters said that floodplain management, which FEMA
administers, and water quality management, administered by the Corps
under Section 404 of the Clean Water Act, should be regulated
separately. A couple of commenters stated that if FEMA wants to
restrict construction in floodplains to reduce flood damage then they
should do so under their own authority.
We believe that the proposed condition does fulfill the
congressional intent inasmuch as the NWP process provides for a less
rigorous review of proposed projects with decisions being rendered in a
much more timely manner than the individual permit process. Also,
conditioning the NWP fulfills the requirement to minimize adverse
impacts to the aquatic environment. Additionally, in accordance with
Executive Order 11988, the district engineers are directed to avoid
authorizing floodplain developments whenever practicable alternatives
exist outside of the floodplain. We believe that we are authorized to
regulate waters of the United States for water quality management and
many wetlands within the 100-year floodplain fall within the
``adjacency clause.'' Therefore, wetlands in the 100-year floodplain
are within the Corps regulatory jurisdiction. To reiterate, the Corps
recognizes that it does not regulate any activity in the 100-year
floodplain that does not occur within a water of the United States;
these upland areas would be regulated by FEMA. It is not the intent of
the Corps to duplicate FEMA and State and local flood control agencies,
but rather to rely on these agencies to assert their jurisdiction to
minimize impacts to aquatic resources within the 100-year floodplain.
Most of the commenters indicated that the proposed condition is
overly restrictive, unnecessary, and causes the process to be
burdensome to both Corps regulators and the taxpayers. These commenters
also indicated that it is both expensive and time-consuming without
providing commensurate benefits for wetlands. Many said the proposal is
not warranted and obviated by the many environmentally protective
conditions already in place, including State and local regulations.
Many of the opponents included state and local transportation
departments who indicated that this condition would prevent them from
fulfilling their mandate of ensuring public safety and that widening
roadways, some within
[[Page 39283]]
wetlands within the 100-year floodplain, is often required and the
condition would put an unnecessary burden on their departments while
delaying their projects. They recommended exempting NWP 14 from this
condition. Few of the objectors recommended which specific NWPs,
existing or proposed replacements, should be excluded from this
condition. Collectively, every NWP was recommended for exclusion.
To reiterate, in accordance with Executive Order 11988, district
engineers should avoid authorizing floodplain developments whenever
practicable alternatives exist outside of the floodplain. The proposed
General Condition 27 prohibits the use of certain NWP activities that
could result in more than minimal adverse impacts to the aquatic
environment, as well as the 100-year floodplain. We believe that, with
proper planning, transportation departments will have ample time to
attain a permit through the individual permit process without undue
delays and excessive risks to public safety. In the event of a ``wash-
out'' due to a storm event, NWP 3 can be used to repair public and
private roadways.
Limiting the Use of the NWPs in Designated Critical Resource Waters
We proposed in the October 14, 1998, Federal Register notice, to
limit the use of NWPs in critical resource waters designated by State
or Federal agencies. Many of the comments we received addressed
proposed restrictions on the applicability of the NWPs in critical
resource waters. Most of those comments generally supported the
adoption of such restrictions, and they focused on suggestions for
defining critical resource waters. These suggestions advocated the
inclusion of the following waters as critical resource waters: waters
that have any kind of special value designation by Federal, State, or
local governments; sensitive and specially valuable waters; habitat of
endangered, threatened, or sensitive species; source waters for
drinking water; groundwater recharge zones; rare and irreplaceable
wetlands that cannot be mitigated with current technologies; and waters
declared as impaired under Section 303(d) of the Clean Water Act. We
have considered each of these recommendations, as discussed below.
Waters that have any kind of special value designation by Federal,
State, or local governments: For waters that have received a Federal
designation of special value, we agree that the use of NWPs should be
restricted to the extent that their applicability is reasonably certain
to jeopardize any essential functions which confer the recognized
special value to these waters. We are proposing to add a new NWP
general condition (General Condition 25) to address the use of NWPs in
designated critical resource waters. Proposed General Condition 25,
entitled Designated Critical Resource Waters, prohibits the use of NWPs
7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and 44 for any
activity in the following critical resource waters including wetlands
adjacent to these waters: NOAA-designated marine sanctuaries, National
Estuarine Research Reserves, National Wild and Scenic Rivers, critical
habitat for Federally-listed threatened and endangered species, coral
reefs, State natural heritage areas, or outstanding national resource
waters officially designated by the State where those waters are
located. Outstanding national resource waters and other waters having
particular environmental or ecological significance must be officially
designated through an official State process (e.g., adopted through
regulatory or statutory processes, approved through State legislation,
or designated by the Governor). In those circumstances where a
waterbody has been designated by the State, the District Engineer will
publish a public notice advising the public that such waters will be
added to the list of designated critical resource waters. The District
Engineer may, on his own, designate critical resource waters after
notice and opportunity for public comment. For activities authorized by
NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37,
and 38, proposed General Condition 25 requires the prospective
permittee to notify the District Engineer in accordance with General
Condition 13 for any activity proposed in these designated critical
resource waters, including adjacent wetlands. This general condition
also prohibits discharges in designated critical habitat for Federally-
listed endangered or threatened species unless the activity complies
with General Condition 11 and the U.S. FWS or the NMFS has concurred in
a determination of compliance with this condition.
We believe that special value designations promulgated solely by
State or local agencies without the approval of the governor or State
legislature are not appropriate bases for the imposition of
restrictions on the use of these Federal permits. We believe that
restrictions which are necessary to support the other State and local
special value designations should be effected through relevant State
and local processes.
Several commenters suggested that Wild and Scenic Rivers, blue-
ribbon trout fisheries, and American Heritage Rivers were all examples
of waters that have been designated as having special value, and that
these particular categories of waters should be categorically excluded
from NWP eligibility. Since there is no official Federal designation of
any waters as blue-ribbon trout fisheries, we do not agree that these
waters should be excluded from this Federal program. The NWP general
conditions already impose restrictions on NWP eligibility in waters
that are components of Wild and Scenic River Systems, and on any river
officially designated by Congress as a ``study river'' for possible
inclusion in such systems. Since this general condition imposes
restrictions that achieve the goals of adequately protecting special
values, and of maximizing NWP utility, we do not believe that further
restriction is appropriate or necessary. American Heritage Rivers may
be likely candidates for inclusion as critical resource waters but it
is difficult to identify any possible adverse effect that would result
from NWP eligibility in these waters. It is particularly difficult to
identify such effects from a national perspective.
We believe that the imposition of any restriction imposed to
protect Critical Resource Waters must be precise in its scope, in order
to provide all reasonable and necessary protection of the factors
conferring special value, without unnecessarily limiting the utility of
the NWPs. Since we believe that these two goals are equally important,
we have concluded that it would be too broad a restriction to eliminate
the applicability of any NWP in special value waters without a prior
Corps determination that the NWP in question posed some reasonable
likelihood of adverse effect on the recognized special value. Our
consideration of the comments received and our concern about undue
restrictions on the NWPs, lead us to conclude that we are unable to
make additional determinations from a national perspective. As a
result, we believe that any such determination of other types of waters
would most appropriately be made at the district or, in some cases, at
the division level, and that as a practical matter, the necessity of
further restriction to protect waters that have a Federal special value
designation must be determined by the Corps district or division and
implemented as regional conditions on the NWPs, as necessary.
Sensitive and specially valuable waters: There is no official
Federal designation of any waters as sensitive or
[[Page 39284]]
specially valuable waters, therefore there is no Federal definition of
such waters. We believe that the inclusion of such arbitrary terms in
the definition of Critical Resource Waters would be counterproductive,
and we do not agree that introduction of additional ambiguity is
appropriate. We further believe that the use of any NWP in waters
identified by the Corps, on a case-by-case basis, as having some
particular sensitivity or special value that is susceptible to
degradation by the activity authorized by the NWP, can be adequately
protected by the Corps use of its discretionary authority to require an
individual permit review, as necessary.
Habitat of endangered, threatened, or sensitive species: Federal
protection for the critical habitat of Federally-listed threatened and
endangered species is provided in all Corps permit actions through
compliance with the requirements of the Endangered Species Act, with
the regulations promulgated pursuant to that Act, and through NWP
General Condition 11. General Condition 25 contains a provision stating
that discharges are not authorized in designated critical habitat for
Federally listed threatened or endangered species unless the activity
complies with General Condition 11 and the U.S. Fish and Wildlife
Service or the National Marine Fisheries Service has concurred in a
determination of compliance with this condition. Since ``sensitive
species'' is a term that is not defined in the Endangered Species Act
or in any other applicable Federal law, we believe that including the
habitat of such ``sensitive species'' would promote confusion rather
than provide clarity in the definition of critical resource waters, and
we do not believe that such inclusion is appropriate.
Source waters for drinking water: We do not believe that any of the
activities authorized by the NWPs pose any inherent threat to drinking
water or to the source waters for drinking water, but it may be
possible for such adverse effects to occur in certain circumstances.
However, we believe that the specification of all such source waters as
critical resource waters would impose a restriction on the utility of
the NWPs that is not warranted by the limited extent of potential
adverse effects. In light of this, we believe it is more appropriate to
rely on the Corps use of its discretionary authority, on a case-by-case
basis, to ensure against adverse effects on drinking water.
Groundwater recharge zones: We agree that any activity that
significantly impairs groundwater recharge functions of wetlands must
be avoided. However, such significant impairment does not inherently
result from the kinds of activities authorized by the NWPs. As such, we
believe that any restriction on the authorization of an activity should
be based on the effects that are expected to occur as a result of a
specifically proposed activity. Since we do not expect the majority of
activities authorized by the NWPs to adversely affect groundwater
recharge, we believe that our ability to assert discretionary authority
to require an individual permit in lieu of any NWP, for cause, provides
ample protection for groundwater recharge zones.
Rare and irreplaceable wetlands that cannot be mitigated with
current technologies.
As with many of the other types of wetlands suggested for inclusion
as critical resource waters, the term ``rare and irreplaceable wetlands
that cannot be mitigated with current technologies'' is undefined, and
the general nationwide specification of such wetlands as critical
resource waters would be a continuing source of debate and, therefore,
impractical. However, we acknowledge that many wetlands systems may
qualify as ``rare and irreplaceable'' because of their location in the
landscape of a particular region. We believe that such locally rare and
irreplaceable wetlands are critical resource waters because of their
local importance. We believe that as such wetlands are recognized by
Corps district and division offices, the revocation of any NWP that
poses a threat to these systems, or the imposition of regional
conditions to avert such threats, should be considered.
Waters declared as impaired under Section 303(d) of the Clean Water
Act: ``Impaired waters,'' as defined in Section 303(d) of the Clean
Water Act, are addressed as a separate issue in the next section of
this Federal Register notice, and as such, we do not believe it is
appropriate to include these waters in the definition of critical
resource waters.
Proposed General Condition 25 prohibits the use of NWPs 7, 12, 14,
16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and 44 for any activity in
certain Federally- and State-designated critical resource waters,
including wetlands adjacent to those waters, with the exceptions
discussed above. For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28,
30, 33, 34, 36, 37, and 38, notification is required for activities in
designated critical resource waters and adjacent wetlands, to allow the
district engineer to determine if the proposed work will result in more
than minimal adverse effects on those waters. Activities authorized by
the NWPs not listed in General Condition 25 would not be subject to
these requirements. Corps districts may also consider the use of
regional general permits for those activities prohibited by General
Condition 25, if the District Engineer determines after public notice
and opportunity for public comment that on a regional basis, such
activities will not result in more than minimal adverse effects on the
aquatic environment, individually or cumulatively.
Limiting the Use of the NWPs in Impaired Waters
In the Federal Register notice published on October 14, 1998, we
requested comments on restricting or prohibiting the use of the NWPs in
impaired waters, including how to identify impaired waters for the
purposes of the NWPs, and which NWPs should be subject to this
limitation. We received a large number of comments supporting the
proposed limitation and a large number of comments objecting to the
proposed limitation.
Some commenters stated that the proposed exclusion should apply to
the use of NWPs in all wetlands and other waters within the watersheds
of impaired waters. Other commenters recommended that the use of NWPs
should be excluded from wetlands or waters upstream or adjacent to
impaired waters. Two commenters stated that NWPs should be excluded
from use in wetlands in impaired waters, even if the historic loss of
wetlands within the watershed is not the cause of impairment, because
those wetlands are of high value in that watershed. In contrast,
several other commenters agreed with the Corps proposal to restrict the
use of NWPs only in those watersheds that are considered impaired as a
result of historic wetland losses. These commenters recommended that
the exclusion apply only to ``State-designated impaired waters which
are determined to be impaired as a result of the historic loss of
wetlands.'' Several commenters supported the proposed exclusion,
provided the restriction applies only to those projects that will
result in further degradation of the waterbody based on the applicable
303(d) parameter; if the proposed work will have no effect on the
303(d) parameter, then the project could be authorized by NWP.
In the October 14, 1998, Federal Register notice, we stated that
the impairment of certain open waters such as lakes, rivers, and
streams is directly related to the historic loss of wetlands in the
watershed. Although not
[[Page 39285]]
explicitly stated in the October 14, 1998, Federal Register notice, the
intent of the proposal was to restrict the use of NWPs in waterbodies
that are impaired due to the loss of wetlands. This remains our intent,
but we are also proposing to add several other causes of impairment
that will be considered as part of the restriction. The additional
causes of impairment include: nutrients, organic enrichment resulting
in low dissolved oxygen concentration in the water column,
sedimentation and siltation, habitat alteration, suspended solids, flow
alteration, and turbidity. These additional sources of impairment may
be related to activities regulated under Section 404 of the Clean Water
Act. We are proposing to incorporate this restriction into the NWP
program as General Condition 26, entitled Impaired Waters.
We believe that discharges of dredged or fill material into
impaired waters of the United States and adjacent wetlands may cause
further impairment of those waters. Proposed General Condition 26
prohibits the use of NWPs to authorize discharges resulting in the loss
of greater than 1 acre of impaired waters of the United States,
including wetlands adjacent to those waters, except for activities
authorized by NWP 3. Activities authorized by NWP 3 that occur in
impaired waters and adjacent wetlands require notification to the
District Engineer in accordance with General Condition 13, who will
determine if the proposed work will result in further impairment of the
waterbody. For activities resulting in the loss of 1 acre or less of
impaired waters of the United States, including adjacent wetlands, the
prospective permittee must notify the District Engineer in accordance
with General Condition 13 and the work authorized by NWP must not
result in further impairment of the waterbody. The notification must
include a statement from the permittee that clearly explains how the
proposed work, excluding mitigation, will not further impair the
waterbody. The District Engineer will determine if the prospective
permittee has clearly demonstrated that the proposed work will not
result in further impairment of the waterbody. For discharges resulting
in the loss of greater than \1/4\ acre of impaired waters, including
adjacent wetlands, the District Engineer will coordinate with the State
401 agency in accordance with the procedures in paragraph (e) of
General Condition 13. The District Engineer will consider any comments
received from the State 401 agency to determine if the proposed work
will not result in further impairment of the listed waterbody. If the
District Engineer determines that the proposed activity will not result
in further impairment of the waterbody by providing additional inputs
of the listed pollutant (i.e., nutrients, organic enrichment resulting
in low dissolved oxygen concentration in the water column,
sedimentation and siltation, habitat alteration, suspended solids, flow
alteration, turbidity, and loss of wetlands), then the project can be
authorized by NWP if it meets all of the other terms and conditions of
the NWPs. If the District Engineer determines that the proposed
activity will result in further impairment of the waterbody by
contributing more of the listed pollutant to the impaired waterbody,
then the project cannot be authorized by NWP and the project proponent
must apply for authorization either through the individual permit
process or obtain authorization through an appropriate regional general
permit, if available.
For the purposes of this proposed general condition, impaired
waters are those waters of the United States that have been identified
by States or Tribes through the Clean Water Act Section 303(d) process
as impaired due to nutrients, organic enrichment resulting in low
dissolved oxygen concentration in the water column, sedimentation and
siltation, habitat alteration, suspended solids, flow alteration,
turbidity, and the historic losses of wetlands. The Corps will defer to
states to identify these waters under the Section 303(d) process,
because states are responsible for implementing Section 303 of the
Clean Water Act, specifically the Total Maximum Daily Load (TMDL)
program overseen by EPA. TMDL standards must be approved by EPA after a
formal public notice and comment period. States must submit lists of
impaired waters to EPA every two years. The authorized activity itself
can result in net improvement of the aquatic ecosystem. For example,
NWP 13 can be used to authorize bank stabilization activities in a
waterbody that has been identified as impaired due to sedimentation,
because the bank stabilization activity reduces the amount of sediment
entering the waterbody, thereby improving water quality. Compensatory
mitigation can be used to offset losses of waters of the United States
authorized by NWPs and reduce the sources of pollution causing
impairment of the local aquatic environment. The establishment and
maintenance of vegetated buffers adjacent to open and flowing waters is
a type of compensatory mitigation than can help improve the impaired
waterbody by restoring aquatic habitat, removing nutrients from surface
runoff and groundwater flowing into waterbodies, trapping sediments,
and moderating changes in water temperatures.
Several commenters believe that the use of NWPs in impaired waters
is a violation of the Clean Water Act and that individual permits must
be used instead to authorize Section 404 activities. A number of
commenters objected to the proposed exclusion because they believe that
concerns for impaired waters should be addressed by states or Tribes
under Sections 101(b) and 401 of the Clean Water Act. Several of these
commenters stated that the proposed exclusion duplicates State efforts
and is unnecessary for the NWP program, because states currently
consider the effects of development projects on impaired rivers. A
number of commenters expressed concern that excluding the use of NWPs
from impaired waters will result in additional pressures on average
quality waters.
The use of NWPs in impaired waters is not a violation of the Clean
Water Act, particularly when a State, Tribe, or EPA issues a Section
401 water quality certification either for the NWP itself or for a
case-specific NWP authorization. If the 401 agency determines that a
project does not meet the water quality standards of the State or
Tribe, resulting in further impairment of the waterbody, they can deny
water quality certification for that particular activity. The
requirements of proposed General Condition 26 will not place additional
pressures on impaired waters, because most project proponents are
unlikely to relocate their projects to areas adjacent to or in
unimpaired waters. It is important to remember that NWPs are optional
permits, and the project proponent can apply for authorization through
the individual permit process if he or she cannot meet the terms and
conditions of an NWP. They are much more likely to request an
individual permit for a project rather than relocating the project to
try to obtain an NWP authorization.
Many commenters objected to restricting or eliminating the use of
NWPs in impaired waters. Reasons for their objections include: (1)
Eliminating the use of NWPs in impaired waters is illogical and will
not provide any environmental benefits; (2) the Corps does not explain
how eliminating the use of NWPs in impaired waters will repair or fix
the impairment; (3) no information is provided in the October 14, 1998,
Federal Register notice to support that impairment is due to historic
losses of wetlands in the
[[Page 39286]]
watershed, since few states have identified waters where the impairment
is due to loss of wetlands; (4) historic wetland loss is an
insignificant source of impairment for most waterbodies; (5) no clear
definition of ``impaired waters'' was provided in the October 14, 1998,
Federal Register notice; (6) many State Section 303(d) lists have not
been approved by EPA; and (7) the Corps provided no justification for
making this a Federal exclusion.
Restricting the use of NWPs in waters that are impaired because of
nutrients, organic enrichment resulting in low dissolved oxygen
concentration in the water column, sedimentation and siltation, habitat
alteration, suspended solids, flow alteration, turbidity, and historic
losses of wetlands in the watershed will benefit the local aquatic
environment by preventing additional impairment of the waterbody and
improving the waterbody through compensatory mitigation and best
management practices. It is important to note that impaired waters are
identified by evaluating open waters and segments of streams and
rivers, not the entire watershed. Proposed General Condition 26 will
apply only to those waterbodies, or segments of waterbodies, that have
been assessed by states under the TMDL program. In addition, proposed
General Condition 26 will apply only to wetlands adjacent to those
waterbodies or segments of waterbodies. The Corps will not identify
impaired waterbodies. As more waterbodies are surveyed by states under
the TMDL program, there may be additional waters subject to General
Condition 26. In the October 14, 1998, Federal Register notice, we
requested suggestions for identifying impaired waters, and cited the
Section 303(d) process as an example. Based on the comments received in
response to the October 14, 1998, Federal Register notice, we have
determined that the Section 303(d) program is the most appropriate way
to identify impaired waters. We can add the requirements of proposed
General Condition 26 to the NWP program because those requirements are
directly related to the goals of the Clean Water Act.
A couple of commenters questioned how the Corps will define the
phrase ``identified with waters and aquifers that have been identified
by states as impaired,'' and asked if stream flow data, hydrologic
data, or geographic proximity will be used as criteria.
Some commenters said there is no indication as to the number of
waters that are impaired due to activities authorized by NWPs. Many
commenters objected to the proposed exclusion, stating that it would
substantially reduce the amount of geographic area where NWPs could be
used. Several of these commenters stated that the proposed exclusion
would prohibit the use of NWPs in 36% of the rivers and 39% of the
lakes in the United States. Because of the large amount of waters that
are considered impaired through the Section 303(d) process, a number of
commenters stated that prohibiting the use of NWPs in impaired waters
will result in a substantial increase in the number of individual
permits processed by the Corps, increasing its workload.
Since proposed General Condition 26 will apply only to activities
in waterbodies (and wetlands adjacent to those waterbodies) that are
identified by State Section 303(d) programs as impaired due to
nutrients, organic enrichment resulting in low dissolved oxygen
concentration in the water column, sedimentation and siltation, habitat
alteration, suspended solids, flow alteration, turbidity, and historic
losses of wetlands in the watershed, and the proposed general condition
requires that the NWP activity cannot further impair the waterbody, the
number of activities for which the NWPs cannot be used is not likely to
be substantial. Therefore, we anticipate only a relatively minor
increase in the number of activities requiring individual permits as a
result of proposed General Condition 26. According to EPA's ``National
Summary of Water Quality Conditions'' for 1996, only 19% of the river
and stream miles in the United States have been surveyed for TMDLs. For
other waterbodies, 40% of the lakes, ponds and reservoirs and 72% of
the square miles of estuaries have been surveyed for TMDLs. Of the
river miles surveyed, 18% are impaired due to siltation, 14% are
impaired due to nutrients, 10% are impaired due to oxygen depleting
substances, 7% are impaired due to habitat alteration, and 7% are
impaired due to suspended solids. Of the pond, lake, and reservoir
acres surveyed, 20% are impaired due to nutrients, 10% are impaired due
to siltation, 8% are impaired due to oxygen-depleting substances, and
5% are impaired due to suspended solids. For ponds, lakes, and
reservoirs, habitat alteration was not listed as a source of impairment
in the 1996 EPA report cited above. Of the square miles of estuaries
surveyed, 22% are impaired due to nutrients, 12% are impaired due to
oxygen-depleting substances, and 6% are impaired due to habitat
alterations. There may be some overlap in these percentages, because
more than one pollutant may impair a particular waterbody or river
segment. If, in the future, states identify, through the Section 303(d)
process, additional waters as impaired due to the causes listed in
proposed General Condition 26, then those waters and any adjacent
wetlands will be subject to this general condition.
A few commenters objected to the reference to aquifers in the
October 14, 1998, Federal Register notice. Some of these commenters
stated that Section 404 of the Clean Water Act does not provide the
Corps with the authority to regulate groundwater. They said that
regulation of groundwater should be left to the states, who have the
legal authority. Other commenters requested guidance or definitions to
identify impaired aquifers.
We agree that Section 404 of the Clean Water Act does not provide
us with the authority to directly regulate activities that affect
groundwater, but since the quality of groundwater is often affected by
activities in surface waters, we can consider the adverse effects of
work authorized under Section 404 on water supplies.
Many commenters discussed potential problems with the proposed
limitation, especially if the Section 303(d) process is used to
identify impaired waters for the purposes of the proposed exclusion. A
large number of commenters stated that waters included on the Section
303(d) lists for specific water quality criteria are not necessarily
affected by activities regulated under Section 404 of the Clean Water
Act. Many commenters recommended that the proposed exclusion should not
apply to waters that are considered impaired due to toxic discharges,
nutrient runoff, organic pollutants, fecal coliform, and sediment
loads. Another commenter objected to the proposed exclusion because
impairment of waters may be due to activities outside of the watershed
and not directly in the impaired waterbody. A couple of commenters
objected to using the Section 303(d) process to identify impaired
waters because EPA is currently attempting to refine the entire Section
303(d) program and is planning to issue proposed rules and guidance
with specific requirements for developing Section 303(d) lists. Another
objection is that the Section 303(d) lists are subject to review every
two years, which may result in uncertainty for the regulated public.
Some commenters oppose the use of Section 303(d) lists because a state
often uses only one data point to make a Section 303(d) determination
and the criteria are often applied inconsistently between states. Some
State lists are better developed
[[Page 39287]]
than others, resulting in inconsistent standards between states.
The impairment of waterbodies due to nutrients, organic enrichment
resulting in low dissolved oxygen concentration in the water column,
sedimentation and siltation, habitat alteration, suspended solids, flow
alteration, turbidity, and the historic loss of wetlands, may be
related to activities regulated under Section 404 of the Clean Water
Act. The requirements of General Condition 26 will ensure that the
activities authorized by NWPs will not result in further impairment of
the waterbody, so that the NWPs will authorize only activities with
minimal adverse effects on the aquatic environment. Impairment due to
other causes, such as metals, toxic discharges, organic pollutants, and
fecal coliform, will not be subject to this general condition. We
recognize that the Section 303(d) lists are subject to change every 2
years and that many waters have not been surveyed to determine if they
comply with State TMDL criteria. If additional waters are identified as
impaired due to the causes listed in General Condition 26, then they
will be subject to that general condition. We also recognize that there
may be some inconsistencies between states, but these inconsistencies
should be resolved by EPA, which provides Federal oversight for the
Section 303(d) program and its implementation by states.
A number of commenters proposed alternatives to prohibiting the use
of NWPs in impaired waters. Several commenters stated that concerns for
impaired waters should be addressed through either regional conditions,
case-specific discretionary authority, or revocation of certain NWPs in
specific geographic areas. Other commenters suggested addressing
concerns for impaired waters in the same way that the Corps addresses
endangered species and historic property issues, by adding a general
condition to the NWPs requiring notification to the District Engineer
for activities that affect impaired waters and allowing the District
Engineer to determine if the proposed activity will result in further
impairment of the waterbody. If the proposed work would result in no
further impairment of the waterbody, then the activity could be
authorized by NWP. Another commenter suggested that compensatory
mitigation could be required for NWP activities to replace lost
wetlands and increase the acreage of wetlands in the vicinity of the
impaired waterbody. A few commenters recommended allowing the use of
NWPs in impaired waters where the authorized activity does not result
in a permanent loss of pollution control features or does not cause
permanent adverse effects to water quality, citing as examples stream
restoration projects, utility line backfills, and temporary impacts to
waters of the United States. Another commenter stated that the use of
NWPs in impaired waters should not be restricted or prohibited when the
objective of the proposed work is to restore wetlands, aquatic habitat,
or water quality, or to conduct activities that will remove the
waterbody from the Section 303(d) list.
We agree that an NWP general condition addressing the use of NWPs
in waterbodies designated, through the Section 303(d) process, as
impaired due to nutrients, organic enrichment resulting in low
dissolved oxygen concentration in the water column, sedimentation and
siltation, habitat alteration, suspended solids, flow alteration,
turbidity, and the historic loss of wetlands is appropriate. Proposed
General Condition 26 requires that activities authorized by NWPs in
impaired waterbodies and adjacent wetlands will not result in further
impairment of the waterbody. Compensatory mitigation, if required to
ensure that the authorized work results in minimal adverse effects on
the aquatic environment, should also help reduce inputs of the
pollutants that are causing the impairment. Such compensatory
mitigation may include: offsetting the authorized loss of wetlands,
establishing and maintaining a vegetated buffer that reduces the input
of nutrients, organic matter, and sediments into the waterbody, and
reestablishing aquatic habitat adjacent to the waterbody. NWP
activities that restore or enhance impaired waters are not prohibited
by proposed General Condition 26.
In response to the October 14, 1998, Federal Register notice, we
received many suggestions for NWPs that should not be subject to the
proposed exclusion. Some commenters cited specific types of activities
that should not be prohibited from NWP authorization in impaired
waters. One commenter suggested that the exclusion should not apply to
the maintenance of transportation projects. Other commenters suggested
that flood control activities and the maintenance of flood control
projects should be exempt from this exclusion. Some commenters said
that the exclusion should apply only to those NWP activities that have
a direct effect on a Section 303(d) parameter.
We believe that proposed General Condition 26 should apply to all
NWPs that authorize discharges of dredged or fill material into waters
of the United States identified as impaired due to the causes listed in
the general condition. Proposed activities that result in further
impairment of the listed waterbody or result in the loss of greater
than 1 acre of impaired waters and adjacent wetlands (except for
activities authorized by NWP 3 as discussed above) are not authorized
by NWPs. Prospective permittees are required to notify the District
Engineer in accordance with General Condition 13, and the District
Engineer will determine whether or not proposed work will result in
further impairment of the waterbody. For proposed activities resulting
in the loss of greater than 1/4 acre of impaired waters and adjacent
wetlands, the District Engineer will coordinate with the State 401
agency in accordance with paragraph (e) of General Condition 13.
Proposed General Condition 26 does not apply to activities in impaired
waters that are subject only to Section 10 of the Rivers and Harbors
Act, if there is no related Section 404 activity. Maintenance
activities for transportation projects and flood control projects that
do not result in discharges of dredged or fill material are not subject
to the requirements of proposed General Condition 26.
III. Comments and Responses on Specific Nationwide Permits
3. Maintenance
In the July 1, 1998, Federal Register notice, the Corps proposed to
modify this NWP to authorize the removal of accumulated sediments in
the vicinity of existing structures. We also proposed to authorize
activities in waters of the United States associated with the
restoration of uplands lost as a result of a storm, flood, or other
specific event. These additional activities are authorized by
paragraphs (ii) and (iii) of the NWP.
General Comments on this NWP: The original terms and conditions of
NWP 3 are in paragraph (i) of this NWP. In the July 1, 1998, Federal
Register notice, we proposed minor changes to the original text of NWP
3. In the July 1, 1998, Federal Register notice, we proposed to add a
notification requirement for all work authorized by paragraph (i) of
the proposed modification of NWP 3 except for the replacement of the
structure. We also inserted the phrase ``or damaged'' after the word
``destroyed.'' We also received some comments concerning the provisions
of NWP 3 as published in the December 13, 1996, issue of the Federal
Register (61 FR 65874-65922).
Some commenters recommended removing the PCN requirement from
paragraph (i) whereas other commenters suggested modifying the NWP to
require
[[Page 39288]]
PCNs for all activities authorized by NWP 3. Many commenters stated
that a replacement project generally results in greater impacts than
repair and rehabilitation activities, but notification should be
required only if the repair and rehabilitation activity exceeds the
``minor deviations in the structure's configuration or filled area''
provision of the NWP. One commenter stated that it was unclear whether
repair and rehabilitation activities require notification. We have
removed the PCN requirement from paragraph (i) of this NWP, since we do
not believe it is necessary to require notification for the repair,
replacement, or rehabilitation of a previously authorized structure or
fill.
Two commenters suggested that the definition of the phrase ``minor
deviations in the structure's configuration'' should be made more
compatible with modern design standards and another suggested that the
definition of ``currently serviceable'' should be expanded to cover all
structures which have been destroyed in a catastrophic event, such as a
hurricane.
This NWP authorizes repair, rehabilitation, and replacement
activities with minor deviations necessary to comply with modern design
standards. Previously authorized structures or fills that have been
damaged by catastrophic events can also be repaired, rehabilitated, or
replaced under this NWP. We do not need to change the definition of the
term ``currently serviceable.''
General comments addressing this NWP include: (1) Prohibiting its
use in watersheds with substantial historic aquatic resource losses;
(2) prohibiting its use in regionally identified tidal waters to ensure
effective protection of their unique and difficult to replace
functions; (3) prohibiting its use in certain stream segments to ensure
minimal cumulative adverse effects; (4) prohibiting its use in
watersheds identified as having water quality problems; and (5)
requiring the permittee to perform the work during low flow conditions.
We believe that these restrictions are unnecessary since NWP 3
authorizes maintenance activities, which are unlikely to result in more
than minimal adverse effects on the aquatic environment. However,
division engineers can regionally condition NWP 3 to restrict or
prohibit its use in high value waters. Division engineers can also
regionally condition NWP 3 to reduce the distance from the existing
structure that accumulated sediment can be removed or reduce the amount
of fill that can be discharged into waters of the United States for
activities associated with the repair of uplands damaged as a result of
storms or other discrete events.
Many commenters suggested additional conditions, which would allow
minor deviations necessary to incorporate best management practices.
Again, this is the intent of the phrase ``minor deviations in the
structure's configuration or filled area'' in paragraph (i). It was
also suggested that the repair and installation of scour and bank
protection should be included in the NWP, as long as the applicant
provides documentation of the original construction, including but not
limited to, ``as-built'' plans. Another suggested activity to be added
to NWP 3 was the removal of beaver dams and associated debris to
restore the ``natural'' hydrology or functions of an area.
Paragraph (ii) of the proposed modification of NWP 3 authorizes the
installation of scour protection necessary to protect or ensure the
safety of the structure. If bank protection is necessary, it may be
authorized by NWP 13, a regional general permit, or an individual
permit. The removal of a beaver dam may or may not require a Section
404 permit, depending on whether the removal of the beaver dam results
in a discharge of dredged or fill material into waters of the United
States. If the beaver dam can be removed without any discharges into
waters of the United States or the discharge consists only of
incidental fallback, no Section 404 permit is required. If the removal
of the beaver dam involves discharges into waters of the United States,
then a Section 404 permit is required. If a Section 404 permit is
required, the removal of a beaver dam may be authorized by another NWP
such as NWP 18, a regional general permit, or an individual permit.
Removal of Accumulated Sediments in the Vicinity of Existing
Structures: A large number of commenters recommended limits for
paragraph (ii) of NWP 3. Recommended limits ranged from 20 to 300 cubic
yards of excavated material and 25 to 500 linear feet of direct impacts
upstream and/or downstream of the structure. The commenters
recommending lower limits believe that higher limits for this NWP would
cause more than minimal adverse effects on the aquatic environment. The
commenters suggesting higher limits contend that higher limits are
necessary to authorize sediment removal when accumulation of sediments
occurs for greater distances (e.g., in flat terrain or alluvial out-
wash areas). Another commenter recommended imposing 1/3-acre and 200
linear foot limits in paragraph (ii) if the project is in woodlands or
special aquatic sites. Several commenters believe that there should be
no restrictions because review of the PCN allows the District Engineer
to limit the work to the minimum necessary to maintain the function of
the structure. One commenter stated that the NWP should be conditioned
to prohibit stream bed ``clean-outs.'' Another commenter requested a
narrower definition of the term ``vicinity.''
We believe that the 200 linear foot limit authorizes removal of
accumulated sediments from the vicinity of an existing structure that,
under most circumstances, results only in minimal adverse effects on
the aquatic environment, individually or cumulatively. Division
engineers can regionally condition this NWP to decrease the 200-foot
limit or impose limits on the quantity of excavated material that can
be removed. Since paragraph (ii) of the proposed modification of NWP 3
requires notification to the District Engineer for every activity,
district engineers can exercise discretionary authority and require an
individual permit for those activities that result in more than minimal
adverse effects on the aquatic environment. Paragraph (ii) of the
proposed modification does not authorize stream ``clean out''
activities, unless sediments have accumulated in the vicinity of an
existing structure, such as a bridge or culvert. Sediment removal to
deepen a stream channel is not authorized by this NWP. District
engineers will determine what constitutes the ``vicinity'' for the
purposes of paragraph (ii) of this NWP.
One commenter recommended that the NWP prohibit the removal of
accumulated sediments in special aquatic sites. Another commenter
stated that compensatory mitigation should be required if aquatic
habitat is removed. Some commenters suggested modifying paragraph (ii)
to authorize the removal of sediment deposits and associated vegetation
from the structures themselves and require testing of sediments in
areas of suspected contamination to ensure that the adverse effects of
the work are minimal.
We do not believe that it is necessary to exclude special aquatic
sites from paragraph (ii) of the proposed modification of NWP 3.
Sediment accumulation can occur in riffle and pool complexes and can
also result in vegetated bars which may be considered wetlands.
However, these areas are constantly changing due to sediment transport
within the waterbody. Under
[[Page 39289]]
these circumstances, the removal of accumulated sediments, even if they
are vegetated, typically results in minimal adverse effects on the
aquatic environment. District engineers can require compensatory
mitigation, if they believe it is necessary to ensure that the
authorized work results only in minimal adverse effects, but in most
situations compensatory mitigation is unnecessary due to the dynamic
nature of the affected area and the minor impacts to the aquatic
environment. In fact, removal of accumulated sediments in the vicinity
of structures may improve the aquatic environment by removing barriers
to fish passage. It is likely that sediments will repeatedly accumulate
in the area and will have to be removed on a regular basis. The phrase
``in the vicinity of existing structures'' includes removal of
accumulated sediments, including any vegetation that may be growing on
those accumulated sediments, in and near the structures. However, we
will clarify the phrase to read ``* * * in the vicinity of, and within,
existing structures * * *'' In areas where accumulated sediments may be
contaminated, district engineers can exercise discretionary authority
to require an individual permit and require testing to determine if
special techniques are required for the excavation and disposal of the
accumulated sediment.
Some commenters objected to modifying this NWP to authorize
sediment removal in the vicinity of existing structures, especially in
docking areas. One commenter requested that the NWP include a
definition of the term ``structure'' to clarify whether or not
maintenance dredging of marina basins and boat slips is authorized by
this NWP. One commenter suggested that the provision for removing
accumulated sediment in front of existing structures appears to
conflict with the prohibition against maintenance dredging in paragraph
(i) of the proposed modification to this NWP. Several commenters also
recommended that the Corps limit the number of times this permit could
be used to prevent the cumulative impacts of multiple sediment removal
projects. One commenter stated that removal of sediment from a drainage
ditch in the vicinity of an existing structure would be considered
maintenance of an existing drainage ditch and would be exempt from
Section 404 permit requirements in accordance with 33 CFR Part
323.4(a)(3).
We have changed the text of the proposed modification of NWP 3 to
clarify that maintenance dredging for the primary purpose of navigation
is not authorized by this NWP, unless it is specifically authorized by
paragraphs (ii) and (iii) of the NWP for other purposes. For example,
this NWP can authorize the removal of accumulated sediment from a water
intake structure in a marina basin. Maintenance dredging of existing
marina basins or boat slips may be authorized by NWP 35, NWP 19,
regional general permits, or individual permits. We believe that it is
unnecessary to limit the number of times this NWP can be used to remove
accumulated sediments in the vicinity of existing structures. The
removal of accumulated sediments in the vicinity of existing structures
is unlikely to result in more than minimal cumulative adverse effects
on the aquatic environment. District engineers can determine, through
their review of notifications, if repeated removal of accumulated
sediments at a particular site results in more than minimal cumulative
adverse effects on the aquatic environment. For the purposes of this
NWP, the term ``structure'' does not include unconfined waterways and
channelized streams, except where the channelized stream consists of a
concrete-lined channel. Although the maintenance of existing drainage
ditches is exempt under Section 404(f), paragraph (ii) of NWP 3
authorizes the removal of accumulated sediments in the vicinity of
existing structures that does not qualify for a Section 404(f)
exemption. Maintenance activities that are eligible for Section 404(f)
exemptions do not require the use of this NWP.
Some commenters stated that the placement of rip rap to protect the
structure should be removed from this NWP because this activity can be
authorized by other NWPs. One commenter believes that the placement of
rip rap should not be authorized by this NWP except in areas where it
is clearly necessary to protect public structures. Other commenters
recommended prohibiting the placement of rip rap in areas inhabited by
submerged aquatic vegetation.
It is our intent to authorize under paragraph (ii) all related
activities for a single and complete project that have minimal adverse
effects on the aquatic environment, rather than require the use of
multiple NWPs to authorize those activities. The placement of rip rap
at the foot of the structure is often necessary to protect the
structure from scour. If sediments are accumulating in the vicinity of
the structure, it is likely that the structure is subject to scouring
by the sediment load of the waterbody. In areas with substantial
movement of sediment, it is unlikely that large populations of
submerged aquatic vegetation will become established, because the
movement of sediments in the bed of the waterbody often will not allow
submerged aquatic vegetation to take root and grow in the waterbody.
Furthermore, the PCN requirement in paragraph (ii) allows district
engineers to review all proposed removal of accumulated sediments to
ensure that the adverse effects on the aquatic environment are minimal.
If a substantial population of submerged aquatic vegetation inhabits
the vicinity of the structure, district engineers can exercise
discretionary authority if the adverse effects of sediment removal and
the placement of rip rap will be more than minimal.
Some commenters stated that the removal of accumulated sediments
from publicly-owned transportation facilities should be exempt from
notification requirements, and no PCN should be required for sediment
removal after heavy storms or floods, because it is too time consuming
to obtain the required cultural and biological clearances.
We believe that the adverse effects on the aquatic environment are
the same, regardless of whether or not a transportation crossing is
privately or publicly owned. The PCN requirement is necessary to allow
district engineers to determine if the adverse effects of the proposed
work on the aquatic environment will be minimal and ensure that
prospective permittees will not remove more sediment than necessary. In
the event of a heavy storm, flood, or other natural disaster, the Corps
has emergency procedures in place for expediting permit issuance for
activities related to repairing storm or disaster damage.
Some commenters recommended authorizing the use of minor cofferdam
systems in the NWP, without a PCN requirement, when removing
accumulated sediments and debris in accordance with paragraph (ii) and
for activities in waters of the United States associated with restoring
damaged uplands in paragraph (iii).
We disagree that this NWP should include the use of cofferdams,
because NWP 33 can be used to authorize temporary construction, access,
and dewatering activities that may be associated with the activities
authorized by this NWP. Combining NWP 3 with NWP 33 for a single and
complete project is not contrary to General Condition 15, provided the
adverse effects on the aquatic environment are minimal.
Activities Associated with Restoration of Uplands: Paragraph (iii)
of the proposed modification of NWP 3
[[Page 39290]]
authorizes discharges of dredged or fill material into all waters of
the United States for activities associated with the restoration of
upland areas damaged by a storm, flood, or other discrete event. Many
commenters stated that the restoration of uplands should be removed
entirely from this NWP because it has nothing to do with the
maintenance of currently serviceable structures and the Corps does not
have jurisdiction over any activity in uplands. Many of these
commenters believe that the Corps is asserting jurisdiction over
uplands and requested the removal of paragraph (iii) from NWP 3. One
commenter suggested that instead of authorizing the project proponent
to rebuild an upland area to ``pre-event'' conditions, the permittee
should only be authorized to stabilize the remaining uplands. Another
commenter objected to modifying NWP 3 to authorize the restoration of
eroded banks because bank erosion is a natural process and there are no
limits in the NWP. This commenter believes that an individual permit
should be required, with conditions requiring the use of coarse woody
debris or other bioengineering methods to prevent further erosion of
the bank.
The purpose of paragraph (iii) of this NWP is to authorize those
activities in waters of the United States that are associated with the
restoration of uplands damaged by a storm or other discrete event. The
restoration of uplands lost as a result of a discrete natural event
does not require a Section 404 permit, because that activity is subject
to the Clean Water Act Section 404(f) exemptions. However, some work in
waters of the United States may be necessary to complete the
restoration work. It is this associated work in waters of the United
States that is authorized by this NWP. For example, the permittee may
want to install structures to protect the restored uplands or remove
obstructions in waters of the United States in the vicinity of the
affected uplands. Through paragraph (iii) of this NWP, we are not
attempting to regulate activities in uplands. We agree that paragraph
(iii) requires clarification as to the extent of the Corps jurisdiction
for upland restoration activities and we have rewritten paragraph (iii)
to state that NWP 3 authorizes discharges ``* * * into all waters of
the United States for activities associated with the restoration of
upland areas damaged by a storm, flood, or other discrete event * * *''
Paragraph (iii) of the proposed modification does not authorize
activities in waters of the United States associated with the
replacement of uplands lost through gradual erosion processes; the loss
of uplands must be due to a specific event, such as a hurricane or
flood. Permittees are encouraged, but not required, to utilize
bioengineering methods to stabilize the restored bank.
One commenter objected to the proposed paragraph (iii) of the NWP,
stating that previous conditions of the site are too difficult to
document. Some commenters recommended that the Corps require the use of
field evidence to estimate the prior extent of uplands, such as
contours adjacent to the damaged areas, or as-built plans for the
waterway to determine the extent of activities authorized by this NWP.
Two commenters suggested that paragraph (iii) of NWP 3 should be
applicable for smaller events over a specific time period (e.g., one
year) rather than one catastrophic event.
We have made the requirement for the prospective permittee to
provide evidence to the District Engineer to justify the extent of the
proposed restoration less stringent, to allow the District Engineer
more flexibility to determine if a proposed activity can be authorized
by paragraph (iii) of this NWP. Evidence of the pre-event extent of
uplands can be provided by a recent topographic survey or photographic
evidence. District engineers may also assess the surrounding landscape,
including field evidence, to evaluate the extent of the proposed
restoration and determine if it complies with the NWP. The location of
the ordinary high water mark that existed prior to the storm event may
be obvious when visiting the site. We realize that most property owners
will not have a recent topographic survey showing the extent of the
uplands on their property.
Paragraph (iii) of the proposed modification of NWP 3 specifically
does not authorize the reclamation of lands lost over an extended
period of time due to normal erosion processes. If the land is subject
to normal erosion processes, the landowner can prevent or reduce
further erosion through bank stabilization measures, many of which are
authorized by NWP 13. If the proposed bank stabilization measure does
not qualify for authorization under NWP 13, then the landowner can
apply for authorization by another NWP, a regional general permit, or
an individual permit. We will retain the provision of the NWP to
authorize only activities in waters of the United States for
restoration of uplands lost due to specific events, such as storms and
floods, and specifically exclude lands lost through normal erosion
processes.
For paragraph (iii) of the NWP, PCN thresholds of 1/4 acre, 10
cubic yards, and up to 200 linear feet of stream bed were suggested by
commenters and some commenters recommended requiring notification only
for activities in special aquatic sites. One commenter recommended
notification and agency coordination for all activities authorized
under paragraph (iii).
In the July 1, 1998, proposal to modify NWP 3, there was an
inconsistency in the notification requirements. In subparagraph (c) of
the proposed modification, notification was required for activities
affecting greater than 1/3 acre of waters of the United States.
Subparagraph (e) of the proposed modification stated that notification
is required for all activities associated with the restoration of
uplands. We have determined that notification should be required for
all activities authorized under paragraph (iii) of this NWP, and have
modified the NWP to state that notification is required for all
activities authorized by paragraph (iii) of NWP 3.
One commenter suggested that the Corps reduce the amount of time
required to submit a PCN from one year after the date of the damage to
two or three months. They believe that two or three months is
sufficient time for the landowner to realize that damage to uplands has
occurred due to a discrete event and determine if restoration of the
uplands will be done by the property owner. Another commenter suggested
that while a 12-month time limit after the damage event may be enough
time to plan restoration, it does not provide enough time to obtain
financing for the restoration effort. Some commenters recommended
requiring compensatory mitigation at a 1:1 ratio for activities
authorized by paragraph (iii) of this NWP.
Although landowners are usually immediately aware that they have
lost uplands due to a storm, flood, or other discrete event, we believe
that they should be allowed one year to determine if they want to
restore the lost uplands and submit a notification to the District
Engineer. After a catastrophic event, many landowners require time to
recover from the event and conduct repairs to their homes and other
structures. Restoration of their land is often less urgent and the
landowners should be allowed adequate time to carefully plan their
upland restoration efforts. It should also be noted that the one year
deadline in paragraph (iii) of the NWP applies only to the notification
requirement and that the permittee has two years to start the
restoration work or execute a construction contract. Two
[[Page 39291]]
years should be an adequate amount of time to conduct the upland
restoration activity.
Since the purpose of paragraph (iii) is to authorize activities in
waters of the United States associated with the restoration of uplands
lost due to a storm event, in most cases compensatory mitigation should
not be required because the purpose of the work is to return the area
to approximately the same conditions that existed prior to the storm
event. Activities in waters of the United States associated with the
restoration of uplands typically do not result in more than minimal
adverse effects on the aquatic environment and should not require
compensatory mitigation. Carefully planned and implemented restoration
efforts may benefit the overall aquatic environment by repairing the
damaged areas and reducing sediment loads to the waterbody, thereby
improving water quality. As with all NWPs, district engineers may
require compensatory mitigation to ensure that the adverse effects of
the work on the aquatic environment are minimal, but we believe that
compensatory mitigation should not be required in most cases.
To make NWP 3 easier to understand, we are proposing to combine all
of the conditions in subparagraphs (a) through (e) and subparagraph (h)
of paragraph (iii) to form a single paragraph. We have also added a
note at the end of this NWP to clarify that NWP 3 authorizes repair,
rehabilitation, or replacement activities that do not qualify for the
Section 404(f) exemption for maintenance.
This NWP is subject to the requirements of proposed General
Conditions 25 and 26. General Condition 25 requires the prospective
permittee to notify the District Engineer in accordance with General
Condition 13 for activities in designated critical resource waters,
including wetlands adjacent to those waters. The District Engineer may
authorize NWP 3 activities in designated critical resource waters and
adjacent wetlands if the adverse effects on the aquatic environment are
no more than minimal. General Condition 26 does not prohibit the use of
this NWP to authorize discharges resulting in the loss of greater than
1 acre of impaired waters, including adjacent wetlands. However, NWP 3
activities in impaired waters and adjacent wetlands require
notification to the District Engineer in accordance with General
Condition 13. The proposed work can be authorized by NWP 3 if the
permittee demonstrates to the District Engineer that the work will not
result in further impairment of the waterbody.
In response to a PCN, district engineers can require special
conditions on a case-by-case basis to ensure that the adverse effects
on the aquatic environment are minimal or exercise discretionary
authority to require an individual permit for the work. This NWP, as
with any NWP, provides for the use of discretionary authority when
valuable or unique aquatic areas may be affected by these activities.
7. Outfall Structures and Maintenance
In the July 1, 1998, Federal Register notice, the Corps proposed to
modify this NWP to authorize the removal of accumulated sediments from
outfall and intake structures and associated canals. All of the
original terms and limitations of NWP 7 have been retained. Numerous
commenters expressed their support for the proposed modifications to
NWP 7. A number of commenters objected to the inclusion of excavation
activities in associated canals and impoundments and questioned whether
such activities are related and similar in nature. A couple of
commenters questioned the need for the proposed modification. Some
commenters requested acreage and cubic yardage limits for the
additional activities authorized by the proposed modification of NWP 7.
Several commenters recommended restricting excavation in wetlands.
Outfalls, intakes, and associated canals accumulate sediment and
require periodic excavation or maintenance dredging to restore flow
capacities to the facility. Most of the dredging is required in the
vicinity of intake structures and their canals because circulation
patterns result in the deposition of sediment in these areas. This
sediment must be removed to ensure that the facility has an adequate
supply of water for its operations. Water discharged from outfall
structures usually has little or no sediment load and maintenance
dredging is not often required in these areas. In situations where a
utility company's intake or outfall canal is also used by barges to
travel to the utility facility, part (ii) of the proposed modification
of NWP 7 will allow continued access by those barges because the
removal of accumulated sediments will return the intake or outfall
canal to its originally designed dimensions and restore its navigable
capacity.
We believe that authorizing some dredging or excavation to maintain
the effectiveness of the outfall or intake structure is necessary and
an integral part of this NWP. This NWP is conditioned to authorize only
the minimum work necessary to maintain the facility, and requires the
prospective permittee to provide the District Engineer with information
on the design capacities and configuration of the intake or outfall
structure, impoundment, or canal. The prospective permittee will also
be required to submit a delineation of affected special aquatic sites
with the PCN to allow district engineers to better assess potential
adverse effects on the aquatic environment, especially in vegetated
shallows that may occur in the canal or in the vicinity of the intake
or outfall structure. No acreage limits have been placed upon this NWP.
Most activities authorized by this NWP will take place in existing
canals, which have been repeatedly dredged and maintained and often
support some kind of industrial or commercial activity for public
benefit. Furthermore, existing deposit areas for the dredged or
excavated sediment will typically be present and available for use.
Where maintenance dredging or excavation is proposed, notification is
required and the District Engineer can exercise discretionary authority
if the adverse effects on the aquatic environment will be more than
minimal. Compensatory mitigation will also be required where
appropriate, but in most cases we believe that compensatory mitigation
should not be required for activities authorized by part (ii), since it
is a maintenance activity. Division engineers can also impose regional
conditions on this NWP to add limits to the NWP or restrict or prohibit
its use in certain waterbodies.
Several commenters supported the proposed notification
requirements. Several commenters recommended requiring notification for
all activities whereas other commenters suggested specific distance and
acreage thresholds for notification.
We are proposing to retain the notification requirement to allow
district engineers to review all activities authorized by this NWP.
Evidence of the original design capacity and configuration of the
facility must be submitted with the notification. This information
allows district engineers to review the proposed work to ensure that
the removal of sediment is for maintenance, not new dredging or
excavation.
Two commenters stated that irrigation and farm ponds should be
removed from the proposal as they are not related to outfalls, while
many commenters objected to the inclusion of excavation in small
impoundments under this NWP. Another commenter stated that the
maintenance of water treatment facilities, irrigation ponds, and farm
[[Page 39292]]
ponds, is exempt from Section 404 permit requirements.
In the July 1, 1998, Federal Register notice, we stated that the
proposed modifications to NWP 7 could be used to authorize the removal
of accumulated sediments from intake and outfall structures in small
impoundments, such as irrigation ponds and farm ponds. This statement
is in error, since the construction and maintenance of farm, stock, and
irrigation ponds does not require a Section 404 permit (see 33 CFR Part
323.4(a)(3)), provided the work does not trigger the recapture
provision of Section 404(f)(2) of the Clean Water Act (see 33 CFR Part
323.4(c)). The removal of sediments from small impoundments is limited
to the excavation of sediment around the intake or outfall structure,
if that activity is not exempt under Section 404(f). Water treatment
facilities may be constructed waters of the United States, and possibly
Section 10 waters. The proposed modification of NWP 7 authorizes
removal of accumulated sediments in the vicinity of intake and outfall
structures constructed in waters of the United States for water
treatment facilities.
One commenter opposed modifying NWP 7 to authorize activities in
non-tidal waters, believing that this would open up thousands of acres
of wetlands and streams to destruction. One commenter stated that since
the proposed modification had no quantitative limits for impacts, this
NWP could cause significant and unmitigated individual and cumulative
adverse impacts. Two commenters stated that no activities in tidal
areas or areas adjacent to, or contiguous with, tidal waters should be
authorized by this NWP. Two commenters further requested that outfall
structures associated with large facilities, such as aquaculture
facilities or power plants, should be reviewed under an individual
permit.
NWP 7 is applicable in all waters of the United States, including
navigable waters. The proposed modification of NWP 7 authorizes only
the construction of outfall structures and associated intake structures
and maintenance dredging or excavation of accumulated sediments in the
vicinity of outfall and intake structures and associated canals. These
activities will not result in the destruction of thousands of acres of
wetlands and streams, because most outfall structures are fairly small
and the authorized excavation or dredging activities are only for
maintenance. The removal of accumulated sediments from an existing
intake or outfall structure or canal will not open up thousands of
wetlands and streams to destruction. Furthermore, since the authorized
removal of accumulated sediment will be limited to the minimum
necessary to restore the facility to its original design capacity, the
adverse effects on the aquatic environment will usually be minimal. The
District Engineer will have the opportunity to review all proposed NWP
7 activities on a case-by-case basis and will be able to add any
necessary conditions, including compensatory mitigation requirements,
to ensure that this NWP authorizes only those activities with minimal
adverse effects on the aquatic environment, individually or
cumulatively. For those activities that may result in more than minimal
adverse effects on the aquatic environment, district engineers will
exercise discretionary authority. This NWP can be utilized for outfalls
associated with aquaculture or power plants. All outfalls proposed
under this NWP must be authorized, exempted, or otherwise in compliance
with regulations issued under the National Pollutant Discharge
Elimination System program.
Several commenters suggested adding restrictions during fish
spawning and nesting periods. One commenter recommended adding two
additional conditions because of potential impacts to manatees. Another
commenter recommended that this permit contain a condition requiring
that shorelines affected by activities authorized under this permit
should be revegetated.
General Condition 20 states that activities including structures
and work in navigable waters of the United States or discharges of
dredged or fill material, in spawning areas during spawning seasons
must be avoided to the maximum extent practicable. This condition
further states that activities that physically destroy important
spawning areas are not authorized. In addition, limitations in specific
waters for certain species are more appropriately addressed as regional
conditions or case-specific special conditions. Activities that may
affect Federally-listed endangered or threatened species or designated
critical habitat must comply with General Condition 11. Districts are
encouraged establish local operating procedures to provide better
protection for these species and their critical habitat.
General Condition 3, Soil Erosion and Sediment Control, requires
the permittee to utilize appropriate soil erosion and sediment controls
during construction and permanently stabilize the site at the earliest
practicable date. This requirement may be fulfilled through vegetative
stabilization methods. In addition, following project completion, some
areas may naturally revegetate. We do not believe that it is necessary
to incorporate an additional requirement into the NWP. Where necessary,
revegetation can be required by district engineers on a case-by-case
basis through special conditions or regional conditions. In some cases,
mitigation requirements may also address this issue, particularly where
the permittee is required to establish and maintain a vegetated buffer.
One commenter stated that NWP 7 should clearly state that it
authorizes removal of accumulated sediment in and around intake pipes
and not just around intake pipes. Several commenters requested that
this NWP authorize removal of accumulated sediment in the vicinity of
intake and outfall structures for engineered flood control facilities,
including dams, flood control facilities, and large reservoirs. One
commenter asked why NWP 7 does not authorize the construction of intake
structures only, because they result in similar adverse effects on the
aquatic environment as outfalls.
The proposed modification of this NWP authorizes the removal of
sediments blocking or restricting outfall or intake structures. This
includes sediment removal from inside of the intake structure. This NWP
does not authorize the construction of new canals or the removal of
sediment from the head works of large dams, flood control facilities,
or large reservoirs. Individual permits, regional general permits, or
other NWPs such as NWPs 19 or 31, may authorize these activities. NWP 7
does not authorize the construction of intake structures without
associated outfall structures because of the potential for more than
minimal adverse effects on the aquatic environment where an intake
structure may be constructed in a waterbody to withdraw water. If the
water is not returned to the waterbody through an outfall structure,
there may be more than minimal adverse effects to aquatic organisms and
local water supplies, especially in arid regions of the country.
This NWP is subject to proposed General Conditions 25 and 26, which
will reduce its applicability. General Condition 25 prohibits the use
of this NWP to authorize discharges into designated critical resource
waters and wetlands adjacent to those waters. General Condition 26
prohibits the use of this NWP to authorize discharges resulting in the
loss of greater than 1 acre of impaired waters, including adjacent
wetlands. NWP 7 activities resulting in the loss of 1 acre or less of
impaired waters, including adjacent
[[Page 39293]]
wetlands, are prohibited unless prospective permittee demonstrates to
the District Engineer that the activity will not result in further
impairment of the waterbody.
In response to a PCN, district engineers can require special
conditions on a case-by-case basis to ensure that the adverse effects
on the aquatic environment are minimal or exercise discretionary
authority to require an individual permit for the work. The issuance of
this NWP, as with any NWP, provides for the use of discretionary
authority when valuable or unique aquatic areas may be affected by
these activities.
12. Utility Line Activities
In the July 1, 1998, Federal Register notice, we proposed to modify
this NWP to authorize activities commonly associated with utility
lines, such as the construction of electric or pumping substations,
foundations for overhead utility line towers, poles, and anchors, and
access roads. Many of these activities may have been authorized by NWP
26.
General comments: We received many comments addressing the proposed
changes to NWP 12. Some commenters suggested leaving NWP 12 unchanged.
Other comments ranged from supporting the issuance of the proposed
modifications of NWP 12 to recommending the revocation of NWP 12. Many
commenters concurred with the proposed acreage limits and PCN
thresholds for the additional activities included in this NWP. Some
commenters proposed higher acreage limits and PCN thresholds. Other
commenters recommended lower acreage limits and PCN thresholds for the
additional activities. Many commenters stated that the proposed changes
would improve the efficiency of the NWP program and prevent the
increase of regulatory burdens, without causing more than minimal
adverse effects on the aquatic environment.
Many commenters expressed opposition to the expansion of NWP 12 to
authorize utility line substations, foundations for utility towers, and
permanent access roads. These commenters stated that this proposal
would be a major expansion of the limits of NWP 12, resulting in
significant losses of wetlands and other waters of the United States.
Several commenters stated that there would no longer be any incentive
to locate these facilities in uplands because the proposed modification
would authorize their construction in wetlands. Some commenters believe
that concerns regarding individual and cumulative adverse effects on
the aquatic environment resulting from the modification of NWP 12 could
be addressed through the regional conditioning process.
We believe the NWP terms, limits, and notification requirements,
will help to ensure that the proposed modification of NWP 12 authorizes
only those utility activities with minimal adverse effects on the
aquatic environment. The review of PCNs by district engineers and the
regional conditioning process will ensure that the NWP authorizes only
those activities with minimal adverse effects on the aquatic
environment and will address regional and watershed concerns. The
notification provisions of NWP 12 will allow district engineers to
exercise discretionary authority for those utility line activities that
may result in more than minimal adverse effects on the aquatic
environment.
One commenter recommended combining utility lines with roads and
other linear projects into one NWP permit and authorizing other utility
line activities that are not linear in nature, such as substations and
foundations for overhead utility lines, by another NWP because they are
more similar in nature.
We believe that utility line substations, foundations for utility
line towers, and permanent access roads for utility line maintenance
are more appropriately authorized by NWP 12, instead of a separate NWP
for these activities, because these activities are integral to single
and complete utility line projects and the adverse effects for these
activities should be considered under one NWP. All of the activities
identified in NWP 12 are associated with typical utility projects and
are similar in nature to other utility projects. We have changed the
title of this NWP from ``Utility Activities'' to ``Utility Line
Activities'' to better reflect the related nature of these activities
for utility line construction, maintenance, and operation. We also
believe that most of these projects, when conducted within the
specified limits of the NWP, will have no more than minimal adverse
impact on the aquatic environment. Finally, in those cases where
proposed activities may have more than minimal adverse effects on the
aquatic environment, we believe that the notification and regional
conditioning processes will serve to ensure that the NWP authorizes
only utility line activities with minimal adverse effects on the
aquatic environment.
One commenter made the following recommendations concerning NWP 12:
(1) The NWP should apply only to previously developed areas and well-
established utility corridors; (2) the clearing of forested wetlands
should be excluded from this NWP; (3) the NWP should be excluded from
wetlands in migratory corridors or near wetlands heavily used by
migratory birds; and (4) the NWP should contain a provision requiring
the planting of native species in disturbed areas and the removal of
noxious and invasive plant species. Another commenter recommended
excluding the use of NWP 12 in special aquatic sites and endangered
species habitat.
We do not agree with the recommendations in the previous paragraph.
NWP 12 authorizes only those utility activities that result in minimal
adverse effects on the aquatic environment, individually or
cumulatively. It is unnecessary and impractical to limit NWP 12 only to
activities in existing utility corridors. If the proposed utility line
will result in more than minimal adverse effects on the aquatic
environment, district engineers can exercise discretionary authority
and require an individual permit. Regional conditioning or case-by-case
discretionary authority is the best mechanism to address potential
adverse effects to wetland habitat. Regional conditions can also
address concerns for revegetating areas temporarily affected by the
authorized work. District engineers can add special conditions to NWP
12 authorizations to specify certain plant species to be planted in
disturbed areas. General Condition 11 adequately addresses potential
effects of the use of NWP 12 on Federally-listed endangered or
threatened species or designated critical habitat.
Utility lines: One commenter recommended limiting NWP 12 to utility
lines that are less than 10 miles in length and six inches in diameter,
with an acreage limit of 2 acres. Other recommended acreage limits
included 1 acre and \1/3\ acre. One commenter expressed concern about
allowing sidecast material to remain in waters of the United States for
up to six months, particularly in tidally influenced waters. To
minimize adverse effects to marine fisheries, this commenter
recommended conditioning NWP 12 to require the permittee to leave gaps
in sidecast material at minimum intervals of 500 feet and prohibiting
the placement of sidecast material in a manner that blocks natural
surface water flows. Another commenter recommended prohibiting
sidecasting of material during utility line maintenance activities to
protect unique wetland functions. Some commenters questioned the
requirement that excess material
[[Page 39294]]
must be removed to upland areas immediately upon completion of
construction and one recommended that, in light of the recent Fifth
Circuit Court of Appeals ruling in American Mining Congress, et al. v.
Corps of Engineers, the Corps move the sentence concerning excess
material to paragraph (i) of NWP 12. This commenter also stated that
they assume that this requirement is intended to apply only to soil or
other material that is dredged or excavated in significant quantities
and redeposited at another location within a water of the United
States, and not to clearing vegetation above ground.
Regional conditioning is the best mechanism for placing acreage
limits on utility line construction, if division engineers believe that
the cumulative adverse effects of utility line construction may result
in more than minimal adverse effects on the aquatic environment within
a particular region. Regional conditions are also the best way to
address concerns regarding the maximum amount of time sidecast material
should remain in waters of the United States and whether or not gaps or
culverts should be placed in the temporary piles of excavated material
to maintain surface water flows. In addition, General Condition 21,
Management of Water Flows, requires that the permittee conduct the work
so that preconstruction water flow patterns are maintained to the
maximum extent practicable after completion of the authorized work.
The requirement for removing excess fill materials upon completion
of construction will be retained in this NWP. This NWP authorizes
temporary fills to install the utility line, such as sidecasting into
waters of the United States during installation, provided the permittee
backfills the trench. Any excavated material placed in waters of the
United States that is not used to backfill the trench must be removed
upon completion of the work or it will be considered a permanent fill
requiring a separate Section 404 permit. An important requirement to
ensure that activities authorized by NWP 12 will have no more than
minimal adverse effects on the aquatic environment is the requirement
to maintain preconstruction contours and elevations as close as
possible after completion of the authorized work. Clearing vegetation
by cutting it above the soil surface does not require a Section 404
permit, as long as there is no discharge of dredged or fill material
into waters of the United States. In addition, if the proposed work is
in a forested wetland, any mechanized landclearing which results in a
discharge of dredged or fill material will require a PCN. The Corps
believes it is necessary to retain this provision to ensure that this
NWP authorizes activities with only minimal adverse effects on the
aquatic environment.
One commenter recommended that the NWP contain a requirement that
all wastewater lines have no-seam pipes beneath perennial or
intermittent streams to reduce the potential for untreated wastewater
leaking into these streams. Another commenter recommended conditioning
NWP 12 to require the installation of anti-seep collars at the
downstream wetland boundary and every 150 feet up the gradient until
the utility line exits the wetland at the upstream or up-slope end to
prevent the lateral draining of the wetland caused by the gravel bed
beneath the utility line. One commenter recommended requiring
perpendicular (between 75 and 105 degrees) stream crossings.
General Condition 2, Proper Maintenance, requires that permittees
maintain all authorized structures or fills to ensure public safety.
Permittees must also comply with Section 402 of the Clean Water Act,
which requires a permit for the discharge of effluent into waters of
the United States. Wastewater lines must be designed and maintained so
that they do not leak untreated wastewater into waters of the United
States. NWP 12 also includes a requirement that a utility line may not
be constructed in such a manner as to drain waters of the United States
(e.g., backfilling with extensive gravel layers, which may create a
french drain effect, and failing to take appropriate measures to
prevent the lateral draining of a wetland).
We believe that perpendicular stream crossings are environmentally
preferable in many situations. However, these types of crossings are
not always feasible and we have determined that it is better to require
notification where a utility line is proposed to be placed within a
water of the United States and runs parallel to a stream bed within
that jurisdictional area. These projects will be reviewed on a case-by-
case basis to determine if the activities would have more than minimal
adverse effects on the aquatic environment. In addition, regional
conditions can address concerns about certain activities and/or impacts
to certain waters of the United States.
Many commenters concurred with the statement in the preamble that
the installation of subaqueous utility lines in waters of the United
States should not be considered as resulting in a loss of waters of the
United States if the area impacted by installation of the utility line
is the minimum necessary and preconstruction contours and elevations
are restored after construction. A number of commenters expressed
concern about adverse effects associated with utility projects and
believe that compensatory mitigation should be required to offset those
adverse effects. Some commenters also questioned why the term ``loss''
only applies to permanently affected waters of the United States. One
commenter stated that the term ``loss'' should apply to the clearing of
forested wetlands for the construction of overhead power transmission
lines where the forest will not be allowed to grow back.
We believe that the installation of utility lines that results only
in temporary adverse effects on waters of the United States should not
be considered a loss if preconstruction contours and elevations are
restored after construction and there are no permanent adverse effects
to the aquatic environment resulting from the activity. While temporary
adverse effects to water quality, fish and wildlife habitat, and other
components of the aquatic environment may result, the areas typically
return to preconstruction conditions if the terms and conditions of the
NWP are met. In these cases, compensatory mitigation should not be
required. However, should the installation of a utility line result in
the permanent conversion of a forested wetland to another wetland type
in a permanently maintained right-of-way, compensatory mitigation may
be required by the District Engineer if it is necessary to ensure that
the authorized work will result in minimal adverse effects on the
aquatic environment. Finally, in those cases where the proposed work
may result in more than minimal adverse impact on the aquatic
environment, we believe the notification and regional conditioning
processes will ensure that the NWP authorizes only activities with
minimal adverse effects on the aquatic environment. In addition,
compensatory mitigation can be required for any NWP 12 activity
requiring a PCN to ensure that the adverse effects of the authorized
work on the aquatic environment are minimal, individually or
cumulatively. The NWP already contains provisions addressing the
clearing of forested wetlands. District engineers will determine if
compensatory mitigation should be required for the conversion of a
forested wetland to an emergent or scrub-shrub wetland in a maintained
utility line corridor.
In the first sentence of paragraph (i), we have stated that NWP 12
authorizes the maintenance and repair of utility
[[Page 39295]]
lines in addition to their construction. Since NWP 12 can be used to
authorize the construction of utility lines in both Section 10 and
Section 404 waters, we have added the phrase ``in all waters of the
United States'' to the text of paragraph (i).
Utility line substations: Some commenters recommended that the
Corps withdraw this part of the proposed modification of NWP 12. Many
commenters recommended higher acreage limits, ranging from 2 to 3
acres. A number of commenters recommended lower acreage limits. One
commenter requested that the Corps clarify what is meant by the term
``pumping substations'' and suggested using the term ``compressor
station'' instead.
We believe that the 1 acre limit for the construction of utility
line substations is appropriate to authorize the construction of most
utility line substations with minimal adverse effects on the aquatic
environment. However, we have lowered the PCN threshold for the
construction of utility line substations to \1/4\ acre, to make it more
consistent with the other proposed new and modified NWPs. We also agree
that some clarification is appropriate to specify the types of utility
line substations are authorized by paragraph (ii). The term ``utility
line substations'' includes power line substations, lift stations,
pumping stations, meter stations, compressor stations, valve stations,
small pipeline platforms, and other facilities integral to the
operation of a utility line.
For the proposed modification of NWP 12, the construction or
expansion of utility line substations in waters of the United States is
limited to non-tidal waters, excluding non-tidal wetlands adjacent to
tidal waters. We have added this language to paragraph (ii) to clarify
the applicable waters for utility line substations authorized by NWP
12, and to make those applicable waters consistent with most of the
other proposed NWPs.
Foundations for overhead utility line towers, poles, and anchors:
One commenter recommended eliminating the requirement to use separate
footings for utility line towers where feasible. Another commenter
noted that in certain situations where hurricanes, high winds, and
lightning occasionally cause damage to power line structures and
conductors, it is better to construct a single pad beneath the
footings. The commenter requested modification of the NWP to allow
single pad fills as long as they result in the loss of less than \1/3\
acre of waters of the United States.
We have decided to retain the proposed language because it provides
flexibility. The phrase ``where feasible'' does not prohibit the
construction of a single pad to support the utility line tower; it
merely encourages the construction of separate footings. This phrase
provides district engineers with the flexibility to use NWP 12 to
authorize the construction of single pads where there are concerns due
to hurricanes, high winds, and other dangerous conditions. District
engineers can require the permittee to provide justification as to why
a single pad should be constructed instead of separate footings. The
only requirement is that the pads result in minimal adverse effects on
the aquatic environment. District engineers can require compensatory
mitigation for the losses of waters of the United States resulting from
the construction of single pads for overhead utility line towers.
Since the proposed modification of NWP 12 can be used to authorize
the construction of foundations for overhead utility line towers,
poles, and anchors in both Section 10 and Section 404 waters, we have
added the phrase ``in all waters of the United States'' to the text of
paragraph (iii).
Access roads: Many commenters recommended increasing the acreage
limit for permanent access roads to 2 or 5 acres. One commenter
recommended limiting permanent access roads to \1/3\ acre of loss of
waters of the United States and a maximum width of 15 feet. Several
commenters recommended excluding permanent access roads from this NWP.
One of these commenters objected to the inclusion of permanent utility
access roads because access roads fragment the landscape, which can
adversely affect fish and wildlife habitat and the water quality
functions of many wetland ecosystems. Another commenter requested that
the NWP contain a provision requiring the permittee to submit
justification explaining why permanent access roads are needed. One
commenter suggested that the PCN contain a requirement for the
submission of an engineering analysis demonstrating that the culvert
size for the permanent access road is adequate, based on watershed
acreage and the appropriate rainfall coefficient. One commenter
expressed concern about inconsistent statements in paragraph (iv) and
the preamble discussion relating to the effects of the access roads on
subsurface flows. This commenter questioned whether the Corps had the
authority to regulate subsurface waters. A commenter asked the Corps to
clarify the meaning of ``minimum width necessary'' as well as the
acceptable length of road, and questioned who would make such
determinations. Further, this commenter asked who decides whether
preconstruction contours are maintained as near as possible. One
commenter recommended adding a term to the NWP requiring that access
roads be constructed with pervious surfaces.
We believe that the 1 acre limit for permanent access roads is
appropriate to ensure that the NWP authorizes only those permanent
access roads that result in minimal adverse effects on the aquatic
environment. The PCN threshold remains the same as proposed in the July
1, 1998, Federal Register notice. The construction of permanent access
roads for utility line maintenance has the same effects on landscapes
as the construction of utility line right-of-ways because the access
roads are usually constructed within the right-of-way. We do not
believe that it is necessary for the applicant to provide justification
for the construction of permanent access roads or an engineering
analysis demonstrating the appropriateness of the culvert size. For
those activities that require notification, district engineers will
review the PCN and determine if the construction of permanent access
roads will result in more than minimal adverse effects on the aquatic
environment. Division engineers can also regionally condition NWP 12 to
ensure that the construction of permanent access roads will result in
minimal adverse effects.
We agree that we do not have the authority under Section 404 of the
Clean Water Act to regulate groundwater flows. Therefore, we have
deleted the reference to subsurface flows in paragraph (iv). The
District Engineer determines if the access road is the minimum width
necessary, as well as the appropriate length of access road, and if the
access road will result in minimal adverse effects on the aquatic
environment. Division engineers can regionally condition NWP 12 to
specify maximum widths and lengths of permanent access roads that can
be authorized by this NWP. In cases where a PCN is required, the Corps
will review the proposed work for compliance with the terms and
conditions of the NWP. If a certain activity does not meet the terms
and conditions of the NWP, another form of authorization must be
obtained.
For the proposed modification of NWP 12, the construction of
permanent access roads for the construction or maintenance of utility
lines in waters of the United States is limited to non-tidal waters of
the United States, excluding non-tidal wetlands adjacent to tidal
waters. We have added this language to paragraph (iv) to clarify the
applicable
[[Page 39296]]
waters for utility line access roads authorized by NWP 12. We have also
added a provision stating that permanent access roads must be
constructed with pervious surfaces.
Notification Requirements: Many commenters recommended eliminating
the PCN requirement for mechanized landclearing in forested wetlands.
One commenter questioned the requirement for notification in forested
wetlands and requested an explanation for that requirement. Several
commenters said that the PCN requirements for access roads should be
consistent with the PCN requirements for roads under NWP 14. One
commenter recommended decreasing the PCN threshold for utility lines
installed in waters of the United States from 500 linear feet to 300
linear feet. Several commenters supported a minimum notification
threshold of \1/3\ acre. Several commenters requested reduced
thresholds for notification to ensure minimal impacts.
The PCN requirement for mechanized landclearing in a forested
wetland has not been changed. This requirement was originally
incorporated into NWP 12 for the December 13, 1996, reissuance of this
NWP. The purpose of this notification requirement is to ensure that
only minimal adverse effects on the aquatic environment will occur when
the installation of a utility line occurs in forested wetlands. In the
proposed modification of NWP 12 published in the July 1, 1998, Federal
Register, we proposed to modify this notification requirement by
limiting the circumstances requiring notification only to the
establishment of the utility line right of way in a forested wetland,
so that PCNs would not be required for any utility activity that
involves mechanized landclearing of a forested wetland, such as the
construction of a utility line substation. We are proposing to retain
this requirement.
We disagree that the notification requirements for permanent access
roads authorized by NWP 12 and linear transportation crossings
authorized by NWP 14 should be the same. NWP 12 and NWP 14 authorize
different types of roads utilized for different purposes. Permanent
access roads authorized by NWP 12 must be constructed as close to
preconstruction contours as possible and at the minimum width
necessary. We expect most permanent access roads for utility lines to
be a maximum of 15 feet wide. Because of construction and safety
standards, many roads authorized by NWP 14 are likely to be wider than
15 feet, resulting in greater impacts to waters of the United States.
We are proposing to retain the PCN thresholds for the construction of
utility lines in waters of the United States and the construction of
access roads as proposed in the July 1, 1998, Federal Register notice.
Two commenters requested that the District Engineer, instead of the
prospective permittee, notify the National Ocean Service (NOS) in cases
where the utility line is to be constructed or installed in navigable
waters of the United States.
We agree that it is more appropriate for the District Engineer to
provide NOS with a copy of the PCN and NWP authorization, since the
requirement at 33 CFR Part 325.2(a)(9)(iii) is to provide NOS with a
copy of the permit for utility lines in navigable waters of the United
States. We are proposing to add a note (Note 3) to the end of the text
of NWP 12, reminding the District Engineer to send copies of the PCN
and the NWP 12 authorization to NOS if the utility line is constructed
in navigable waters of the United States.
Some commenters stated that the Corps should not require a
delineation of special aquatic sites, including wetlands, as part of
the NWP 12 PCN, or at least apply that requirement only to those
projects that are subject to an acreage limitation. Some commenters
recommended using simpler methods to delineate special aquatic sites.
Other commenters suggested that the Corps adopt a procedure requiring
Corps approval of a delineation of special aquatic sites within a
reasonable period of time.
We disagree with the first comment in the previous paragraph
because it is important to identify the limits and amounts of special
aquatic sites that might be lost as a result of the proposed work to
determine if additional on-site avoidance and minimization is possible
and if the proposed project would have more than minimal adverse
effects on the aquatic environment. The only approved method of
determining the extent of wetlands is by the procedures in the 1987
Corps of Engineers Wetlands Delineation Manual (Technical Report Y-87-
1). Other special aquatic sites are identified through other methods.
For activities requiring notification, district engineers have 45 days
from the date of receipt of a complete PCN to determine if the proposed
work qualifies for NWP authorization. During the 45-day period, the
District Engineer must determine if the delineation is accurate.
District engineers cannot consider a PCN incomplete solely because they
have not verified the delineation of special aquatic sites.
Other issues: One commenter recommended that the Corps add language
to NWP 12 to waive the PCN requirement for cases where a prospective
permittee is working under a valid NPDES stormwater management permit.
We disagree, since the NPDES permit does not satisfy the permit
requirements of Section 404 of the Clean Water Act. Review by the
District Engineer is necessary to ensure that the authorized work
complies with the terms and conditions of NWP 12 and results in minimal
adverse effects on the aquatic environment.
Some commenters objected to compensatory mitigation requirements
for public utility projects and others suggested that mitigation should
only be required to the extent necessary to ensure that an activity has
minimal adverse effects on the aquatic environment. Other commenters
recommended requiring complete or partial restoration of areas altered
by mechanized landclearing.
Public projects may have more adverse effects on the aquatic
environment than private projects since they may be larger in size.
Project proponents will be required to provide compensatory mitigation,
if necessary, to ensure that the authorized work results in minimal
adverse effects on the aquatic environment regardless of whether the
project is for public or private purposes. For activities that require
notification, compensatory mitigation may be required by district
engineers to ensure that the net adverse effects to the aquatic
environment are minimal, individually and cumulatively. Utility line
right-of-ways in waters of the United States can be cleared for the
construction, maintenance, or repair of utility lines, but the cleared
area must be the minimum necessary and preconstruction contours must be
maintained as close as possible. Wetland vegetation will grow back if
the right-of-way is constructed in wetlands and preconstruction
contours and elevations are restored after construction. However, the
plant community may be maintained as shrubs or herbaceous plants, to
prevent damage to the utility line and facilitate repairs. We believe
that the conditions of NWP 12 adequately address temporary impacts to
waters of the United States and that additional restoration
requirements are not necessary.
Some commenters emphasized the importance of the regional
conditioning process to address regionally significant resources such
as vernal pools, headwater springs, prairie potholes, certain coastal
wetlands to ensure protection of unique wetland functions.
[[Page 39297]]
Many commenters made recommendations for regional conditions.
We recognize that the regional conditioning process is a very
important element in the implementation of the new and modified NWPs
but that specific recommendations for regional conditions must be
addressed by division and district engineers.
This NWP is subject to proposed General Conditions 25, 26, and 27,
which will substantially reduce its applicability. General Condition 25
prohibits the use of this NWP to authorize discharges into designated
critical resource waters and wetlands adjacent to those waters. General
Condition 26 prohibits the use of this NWP to authorize discharges
resulting in the loss of greater than 1 acre of impaired waters,
including adjacent wetlands. NWP 12 activities resulting in the loss of
1 acre or less of impaired waters, including adjacent wetlands, are
prohibited unless prospective permittee demonstrates to the District
Engineer that the activity will not result in further impairment of the
waterbody. General Condition 27 prohibits the use of NWP 12 to
authorize permanent, above-grade wetland fills in waters of the United
States within the 100-year floodplain, unless the prospective permittee
clearly demonstrates that the project and associated mitigation will
not decrease the flood-holding capacity and no more than minimally
alter the hydrology, flow regime, or volume of waters associated with
the 100-year floodplain.
In response to a PCN, district engineers can require special
conditions on a case-by-case basis to ensure that the adverse effects
on the aquatic environment are minimal or exercise discretionary
authority to require an individual permit for the work. The issuance of
this NWP, as with any NWP, provides for the use of discretionary
authority when valuable or unique aquatic areas may be affected by
these activities.
14. Linear Transportation Crossings
In the July 1, 1998, Federal Register notice, we proposed several
changes to this NWP. We proposed to modify this NWP to have a larger
acreage limit for public transportation crossings, such as roads,
railroads, and airport runways, in non-tidal waters of the United
States, excluding non-tidal wetlands contiguous to tidal waters. We
also requested comments on whether the acreage limit for public
transportation crossings in non-tidal waters should be 1 or 2 acres.
For private crossings and public linear transportation crossings in
tidal waters, or non-tidal wetlands contiguous to tidal waters, we did
not propose to change the original acreage limits of NWP 14.
One commenter stated that the NWP should not authorize public
transportation crossings. A number of commenters said that the
distinction between public and private transportation crossings is
unnecessary. Many commenters requested that the Corps clarify what is
meant by private and public transportation crossings. Several
commenters asked whether roads to residential developments would be
considered public or private.
NWP 14 previously authorized both public and private road
crossings. Due to public interest factors, we proposed to increase the
acreage limit for public transportation crossings for this NWP, with
acreage limits based on the types of waters affected by the work. For
the purposes of this NWP, a private crossing is restricted to the use
of a particular person or group, and is not freely available to the
public. An example is a driveway crossing a stream to provide access to
a single family residence. A public crossing is a crossing which is
intended to serve all citizens, rather than a specific limited group.
As further clarification, if the responsibility for the highway or road
maintenance and repair is a county, state, or government entity, the
road will be considered public. To increase protection of the aquatic
environment, we are proposing to change the applicable waters for
linear transportation crossings as follows: (1) Public linear
transportation crossings constructed in non-tidal waters, excluding
non-tidal wetlands adjacent to tidal waters, (2) public linear
transportation crossings constructed in tidal waters and non-tidal
wetlands adjacent to tidal waters, and (3) private linear
transportation crossings constructed in all waters of the United
States.
Many commenters requested that NWP 14 remain unchanged. Several
commenters suggested that the acreage limit for public projects should
be limited to 1 acre and the length of the crossing to no more than 200
feet. Other commenters stated that the proposed 2 acre limit for public
transportation crossings is too low and would prefer the original 10
acre limit that NWP 26 had prior to December 1996. Many commenters said
that 2 acres is sufficient for public highways, which often have 2 to 4
lanes. Several commenters stated that public linear transportation
crossings should have no acreage limit while others said the limit is
too high and that the proposed modification should be withdrawn.
Another commenter recommended removing the 200 linear foot limit for
private crossings and replacing it with a 500 linear foot limit.
We have carefully considered all comments on the proposed acreage
limits. The existing limit for private crossings is retained at \1/3\
acre and 200 linear feet. For public projects in non-tidal waters,
excluding non-tidal wetlands adjacent to tidal waters, we have decided
the proposed 1 acre limit for public linear transportation crossings is
appropriate to authorize most public linear transportation crossings
that have minimal adverse effects on the aquatic environment in non-
tidal waters. It is important to note that each crossing of a separate
waterbody is a single and complete project (see 33 CFR Part 330.2(i)).
The \1/3\ acre and 200 linear foot limits will be retained for private
linear transportation crossings and public linear transportation
crossings in tidal waters and non-tidal wetlands adjacent to tidal
waters.
Some commenters asked why the acreage limit for public projects was
higher than the acreage limit for private projects. Many objected to
the differences in acreage limits. Several commenters were concerned
that the proposed modification establishes different thresholds based
upon whether a project is private or public.
During our review of transportation projects authorized by NWP 26,
we found that there were a substantial number of public linear
transportation crossings with minimal adverse effects on the aquatic
environment. Approximately 90% of the transportation projects
authorized by NWP 26 during 1997 resulted in the loss of less than 1
acre of non-tidal waters. The proposed modification of NWP 14 is
intended to authorize these types of projects, since NWP 26 will be
replaced by the proposed new and modified NWPs announced in this
Federal Register notice. Public linear transportation crossings need to
be larger, because they must have larger capacities. Private crossings,
on the other hand, are typically small. Public linear transportation
crossings also fulfill a greater proportion of public interest factors,
and the government entities that typically sponsor or build these
projects have the resources and experience necessary to design these
projects and provide necessary compensatory mitigation to ensure that
these projects have minimal adverse effects on the aquatic environment.
Consequently, these projects are less likely to be contrary to the
public interest. Public transportation projects often require detailed
planning
[[Page 39298]]
processes to document compliance with NEPA, Section 404 of the Clean
Water Act, and many other applicable laws. As a result, we have decided
that it is appropriate to impose a higher acreage limit for public
linear transportation projects in non-tidal waters, excluding non-tidal
wetlands adjacent to tidal waters.
Public roads serve the general public and allow access for entire
communities. Other transportation facilities, such as municipal airport
runways or railroads are constructed for public transportation needs,
and are considered public if they are accessible to the public as a
whole. Railroad crossings may be constructed by private entities, but
may be used by public transportation agencies for mass transit, such as
commuter rail services. As long as these transportation facilities are
used by the general public, providing a means of transportation for an
entire community, these linear transportation crossings will be
considered public for the purposes of this NWP.
Many comments were received regarding PCN thresholds. Several
commenters suggested that notification should be required for all
projects authorized by this NWP. Some commenters stated that the
proposed notification requirements were too stringent and some wetland
impacts should be authorized without any PCN requirements. These
commenters stated that the PCN requirement should be consistent with
the notification requirements of NWP 12, and recommended that
notification should be required if the activity results in the loss of
more than \1/3\ acre of non-tidal wetlands or the impact exceeds 500
linear feet in waters of the United States. Another commenter said that
the PCN threshold should be raised to \1/2\ acre. One commenter stated
the notification requirements for public and private linear
transportation projects should be the same. Another commenter wanted to
know how Corps Districts would identify areas of high value that could
trigger lower PCN thresholds.
To make the PCN thresholds of NWP 14 more consistent with the new
NWPs, the proposed notification threshold has been modified. The
proposed PCN thresholds for public and private linear transportation
crossings are the same. Notification will be required for activities
that result in the loss of greater than \1/4\ acre of waters of the
United States. Notification will also be required for all activities
that result in a discharge into special aquatic sites, including
wetlands. We do not agree that the PCN thresholds of NWP 14 should be
the same as the PCN thresholds of NWP 12 because the activities
authorized by these NWPs have different adverse effects on the aquatic
environment. High value waters will be identified through the regional
conditioning process. Division engineers can regionally condition this
NWP to lower the PCN threshold or require notification for all
activities in specific high value waters.
Numerous commenters requested clarification concerning what
constitutes a single and complete linear project. Several commenters
recommended that the Corps eliminate the practice of piecemealing road
projects so that NWP 14 authorizes each separate wetland or stream
impact along the construction corridor. Another commenter suggested
that the Corps consider allowing the use of this NWP for multiple
crossings provided the ``no net loss'' goal is met.
Our NWP regulations already address linear projects and what
constitutes a single and complete linear project (see 33 CFR Part
320.2(i)). In paragraph (h) of the proposed modification of this NWP,
we have provided additional clarification concerning when discretionary
authority may be exercised for road segments with multiple crossings of
streams.
Many commenters believe that airports and runways should not be
authorized by this NWP. Several commenters suggested that the secondary
impacts of airport runway construction, such as chemicals and
pollutants, are a serious concern. Several commenters questioned
whether railroads are considered public entities.
The construction, improvement, and expansion of airport runways can
be authorized by this proposed modification of this NWP, provided the
adverse effects on the aquatic environment are minimal. These
facilities are often subject to additional rigorous regulation by other
State and Federal agencies. Airports will have existing stormwater and
water quality management plans, and are likely to be closely regulated
with regard to air quality, noise pollution, point and non-point source
pollution, and hazardous and toxic substances. Since this NWP requires
a PCN for most projects, district engineers will have the opportunity
to review the impacts of the proposed activity. If a project will have
more than minimal adverse effects on the aquatic environment, the
District Engineer will assert discretionary authority and require an
individual permit. Railroads will typically be considered public
transportation because, as previously discussed, a railroad may be
constructed by a private entity, but the tracks are often utilized by
the general public for public transportation. As long as these
facilities are generally accessible to the public, by providing a means
of mass transit or services for a community, railway crossings will be
considered public.
One commenter stated that regional conditions should prohibit the
disruption of water flows by requiring culverts, bridges, etc. Another
commenter asked for clarification of the terms in paragraph (g) of the
proposed NWP 14 modification. Another commenter requested that
applicants provide detailed engineering information on the crossings to
ensure that they are designed properly.
General Condition 21, Management of Water Flows, requires NWP
activities to be designed and constructed to maintain preconstruction
downstream flow conditions, to the maximum extent practicable.
Activities authorized by this NWP should not result in more than minor
changes to the hydraulic flow of a stream and should not result in an
increase in flooding upstream or downstream of the crossing. Proposed
General Condition 27 also applies to activities authorized by this NWP.
To construct the crossing, some work in the stream channel is
necessary. Examples include bank stabilization, the placement of fill
and culverts, depressing the culvert into the stream bed, etc. All of
this work should take place only in the immediate vicinity of the
crossing. The construction of the crossing should result in only minor
impacts to the hydraulic characteristics of the stream. General
Condition 9, Water Quality, requires the permittee to implement a water
quality management plan to ensure the work does not cause more than
minimal adverse effects to the downstream aquatic system. In general,
where a state or tribal entity requires such a plan, this requirement
will be considered fulfilled. If a water quality management plan is not
required by the state, the District Engineer must decide if one is
needed for the proposed activity. We do not agree that applicants
should be required to provide detailed engineering information
concerning the crossing. It is incumbent upon the permittee to ensure
that the crossing is designed so that it complies with all of the
conditions of the NWP, especially General Condition 21.
One commenter questioned why a mitigation plan was required for
public linear transportation projects but not for private crossings.
Several commenters asked whether compensatory mitigation would be
required for all crossings.
We have modified this provision of NWP to require a mitigation
proposal
[[Page 39299]]
for both public and private linear transportation crossings. Paragraph
(c) of the proposed modification of NWP 14 requires the prospective
permittee to submit a mitigation proposal to offset permanent losses of
waters of the United States and a statement describing how temporary
losses will be minimized to the extent practicable.
Many commenters objected to the inclusion of attendant features to
the linear transportation project, such as interchanges, stormwater
detention basins, rail spurs, or water quality enhancement measures in
the NWP. Many commenters approved the inclusion of such features, and a
couple of commenters requested that the NWP authorize non-linear
features such as vehicle maintenance or storage buildings, parking
lots, train stations, and hangars. One commenter said that this NWP
should not authorize new transportation facilities, which typically
result in significant indirect and cumulative impacts.
Features integral to the crossing, such as interchanges, rail
spurs, stormwater detention basins, and water quality enhancement
measures are authorized by this NWP. This requirement will help ensure
that the adverse effects of the entire single and complete project are
considered. The attendant features must be integral to the crossing,
however, and the combined loss of waters of the United States for a
single and complete project cannot exceed the acreage limit of this
NWP. We are not proposing to modify NWP 14 to authorize non-linear
transportation activities, because these activities have greater
potential to result in more than minimal adverse effects on the aquatic
environment.
The proposed modification of this NWP can authorize the
construction of new linear transportation crossings, provided the
proposed work results in minimal adverse effects on the aquatic
environment. The notification requirements, the District Engineer's
ability to impose special conditions on a particular activity, and the
District Engineer's ability to exercise discretionary authority and
require an individual permit will ensure that the activities authorized
by this NWP result in minimal adverse effects on the aquatic
environment.
Several commenters recommended adding conditions that appear to
apply to specific regions. One commenter requested that: this NWP
should be prohibited in watersheds with substantial aquatic resource
losses and in watersheds which have impervious surfaces over a
substantial percentage of the landscape; the acreage limits be modified
to protect regionally significant resources; linear foot limitations
should be imposed on activities in streams with regionally important
resources; kick-out provisions should be provided for Federal agencies;
and compensatory mitigation should be required to fully offset all
impacts to ensure no net loss of aquatic resources. Another commenter
requested that this NWP: prohibit activities below the existing water
level of the stream, limit work affecting water quality between March
15 and June 15, prohibit the use of stream bed material for erosion
control, limit the use of rip rap, limit clearing of forested stream
corridors to the minimum necessary, require revegetation of disturbed
areas to reduce erosion, require culverts for temporary rock stream
crossings higher than 18 inches, maintain stream bed gradient during
construction, and size and place culverts to avoid creating a drop
between the downstream end of the culvert and the downstream water
surface elevation.
All of the recommendations cited in the previous paragraph are best
addressed as regional conditions and case-specific special conditions
for an NWP authorization.
A couple of commenters requested that this NWP authorize some
stream channelization. Several commenters requested that this NWP
prohibit stream channelization.
Paragraph (f) of the proposed modification of NWP 14 states that
this NWP cannot be used to channelize a stream, but some channel
modification in the immediate vicinity of the crossing can be conducted
to ensure that water flow through the crossing does not result in
additional flooding, erosion, or other adverse impacts that may
compromise public safety.
One commenter was confused about the manner in which the authorized
activities and applicable waters were described. We have clarified this
section, with the acreage limits for each category of activities and
applicable waters.
This NWP is subject to proposed General Conditions 25, 26, and 27,
which will substantially reduce its applicability. General Condition 25
prohibits the use of this NWP to authorize discharges into designated
critical resource waters and wetlands adjacent to those waters. Due to
the requirements of General Condition 26, NWP 14 activities resulting
in the loss of impaired waters, including adjacent wetlands, are
prohibited unless prospective permittee demonstrates to the District
Engineer that the activity will not result in further impairment of the
waterbody. General Condition 27 prohibits the use of NWP 14 to
authorize permanent, above-grade wetland fills in waters of the United
States within the 100-year floodplain, unless the prospective permittee
clearly demonstrates that the project and associated mitigation will
not decrease the flood-holding capacity and no more than minimally
alter the hydrology, flow regime, or volume of waters associated with
the 100-year floodplain.
In response to a PCN, district engineers can require special
conditions on a case-by-case basis to ensure that the adverse effects
on the aquatic environment are minimal or exercise discretionary
authority to require an individual permit for the work. The issuance of
this NWP, as with any NWP, provides for the use of discretionary
authority when valuable or unique aquatic areas may be affected by
these activities.
27. Stream and Wetland Restoration Activities
In the July 1, 1998, Federal Register notice, we proposed to modify
NWP 27 to authorize the restoration of non-Section 10 streams, in
addition to the wetland and riparian restoration and enhancement
activities already authorized by this NWP.
Some commenters supported the proposed modifications. Other
commenters said that no restrictions should be placed on the NWP.
Several commenters stated that the NWP meets the criteria for minimal
effects. One commenter supported modification of NWP 27 to authorize
activities on private property. Several commenters opposed the proposed
modifications to NWP 27 because they believe that wetlands and streams
would be adversely affected by the proposed changes.
The purpose of the proposed modification of NWP 27 is to authorize
the restoration of non-tidal streams. NWP 27 previously authorized only
the restoration former non-tidal wetlands and riparian areas, the
enhancement of degraded wetlands and riparian areas, and the creation
of wetlands and riparian areas. We are also proposing to modify NWP 27
to authorize the restoration of tidal waters. Currently, NWP 27 only
authorizes the restoration of non-tidal wetlands and riparian areas.
The enhancement of degraded wetlands and riparian areas and the
creation of wetlands and riparian areas is authorized in all waters of
the United States, including tidal waters. We believe, that by adding
stream and tidal wetland restoration activities to this NWP, that the
overall aquatic
[[Page 39300]]
environment will benefit by providing an efficient means of authorizing
the restoration and enhancement of these areas.
One commenter recommended eliminating wetland restoration
activities from this NWP and limiting it only to enhancement
activities. This commenter believes that restoration activities do not
require a Section 404 permit because the project area is not currently
a wetland. Another commenter asked if NWP 27 applies to the restoration
of riparian zones outside of wetlands and other waters of the United
States.
Many wetland restoration activities require a Section 404 permit
because there are discharges into waters of the United States that are
necessary to conduct the restoration activity, such as connecting the
restored wetland to other waters of the United States. The same
principle applies to wetland creation activities. NWP 27 authorizes the
restoration of riparian zones that are waters of the United States
(e.g., wetlands adjacent to a stream) and activities in waters of the
United States associated with the restoration of upland riparian zones.
For example, to establish a vegetated upland riparian zone, some bank
stabilization activities in waters of the United States may be
necessary, such as the planting of willows along the bank. If the
proposed riparian zone restoration activity is conducted entirely
outside of waters of the United States, then no Corps permit is
required.
One commenter requested the inclusion of more examples of stream
restoration and enhancement activities, such as the addition of
spawning gravel and the removal of accumulated sediment from ponds to
prevent sediments from being washed downstream. Another commenter
stated that the list of examples of authorized activities in the NWP is
too inclusive and vague. Other commenters expressed concern that
activities not directly related to the restoration of ecological values
or aquatic functions could be authorized by this NWP. Several
commenters recommended excluding the placement rip rap from NWP 27 and
that the appropriate use of biological materials should be encouraged.
The list of activities in the paragraph following paragraph (c) of
the proposed modification of NWP 27 is intended only to provide
examples and is not a complete list of activities authorized by this
NWP. The next paragraph in NWP 27 lists activities that are not
authorized by the NWP. If the prospective permittee has questions about
a particular stream and wetland restoration or enhancement activity,
then he or she should contact the District Engineer to determine if the
proposed work can be authorized by NWP 27. For those projects requiring
notification, the District Engineer will determine if the proposed work
satisfies the terms and conditions of NWP 27 and will exercise
discretionary authority if the proposed work will result in more than
minimal adverse effects on the aquatic environment. Division engineers
can also regionally condition this NWP to exclude certain activities or
prohibit its use in specific waterbodies or geographic regions. We do
not agree that the use of rip rap should be excluded from this NWP,
because rip rap provides habitat for many aquatic organisms and can
help reduce adverse effects to water quality resulting from soil
erosion on the project site.
A number of commenters were confused about the scope of this NWP
and asked which types of waters are subject to this NWP. Several
commenters recommended expanding the applicable waters for this NWP to
include Section 10 waters. Other commenters suggested excluding tidal
wetlands from this NWP. One commenter stated that the NWP should be
used only in small lengths of streams or small wetland areas.
We have modified the first paragraph of the proposed modification
of this NWP to clarify the scope of applicable waters for this NWP.
Since its issuance in 1991, NWP 27 has authorized wetland and riparian
restoration, enhancement, and creation activities in Section 10 waters,
although certain activities were restricted to non-tidal Section 10
waters. This NWP authorizes activities that restore former waters,
including tidal and non-tidal wetlands, enhance degraded tidal and non-
tidal wetlands and riparian areas, create tidal and non-tidal wetlands
and riparian areas, and restore and enhance non-tidal streams and non-
tidal open waters. This NWP can be used to restore and enhance Section
10 streams and open waters, as long as they are non-tidal. Other
Section 10 activities authorized by this NWP include the restoration of
former non-tidal wetlands in Section 10 waters, the enhancement of
degraded wetlands in navigable waters, and the creation of wetlands in
navigable waters.
Restricting the use of this NWP to small segments of streams and
small wetlands is unnecessary because this NWP authorizes only those
activities that improve the aquatic environment. Adding such a
restriction is also likely to discourage larger stream and wetland
restoration and enhancement projects by requiring prospective
permittees to go through a more complicated and expensive permit
process.
Many commenters recommended conditioning this NWP to prohibit
conversion and alteration of habitat. One of these commenters
recommended prohibiting the conversion of one aquatic habitat type to
another type unless the intent of the conversion is to restore the area
to an aquatic habitat type that historically existed on that site. One
commenter recommended including a provision in the NWP to allow the
construction of small impoundments in ephemeral and/or intermittent
reaches of streams to benefit water quality and waterfowl.
The proposed modification of this NWP prohibits the conversion of
natural streams or wetlands to another aquatic use, unless the
permittee recreates similar aquatic habitat types in a different
location on the project site and the project results in aquatic
resource functional gains. However, only non-tidal waters can be
converted to other types of aquatic habitat. We are proposing to modify
the text of the NWP to specify that any relocated non-tidal aquatic
habitat type must be created on the project site, so that the
relocation is not limited to creating the aquatic habitat type in
adjacent uplands. We have added a prohibition against converting tidal
waters, including tidal wetlands, to other aquatic uses or relocating
tidal waters. We do not believe that is necessary to limit the
conversion to aquatic habitat types that historically existed on the
project site, because the permittee may want to conduct activities that
provide more benefits to the aquatic environment than the historic
aquatic habitat type provided. This NWP can authorize small
impoundments in ephemeral and/or intermittent streams, provided those
aquatic habitat types are recreated on the project site, the adverse
effects on the aquatic environment are minimal, and there are net
functional gains.
Several commenters expressed concern with the use of this NWP with
other permits. Other commenters were uncertain as to whether General
Condition 15 applies to NWP 27.
NWP 27 may be used with other NWPs to authorize a single and
complete project, provided the authorized work results in minimal
adverse effects on the aquatic environment, individually or
cumulatively. For example, NWP 33 may be used to provide temporary
access to the construction site for activities authorized by NWP 27.
The proposed modification of General
[[Page 39301]]
Condition 15 applies to NWP 27 and all other NWPs.
We have also been made aware of situations where participants in
wetland restoration programs, such as the U.S. Department of
Agriculture's Wetlands Reserve Program, want to revert their land back
to its prior condition. If the land was prior converted cropland before
the implementation of the wetland restoration activity, and no
associated discharge of dredged or fill material into waters of the
United States was required to conduct the wetland restoration activity,
the landowner did not require a Section 404 permit. If the landowner
wants to revert the land back to its prior condition, he or she could
not utilize the reversion provision of NWP 27, because NWP 27 was not
needed to restore wetlands on the prior converted wetland. To address
this issue, we are proposing to add a provision to NWP 27 that allows
the landowner to revert the land back to its prior condition using NWP
27, even though no Section 404 permit was needed to conduct the wetland
restoration activity, provided the prior-converted cropland has not
been abandoned. We believe this provision is necessary to provide
equity for landowners. This provision may encourage more landowners to
restore wetlands on prior converted cropland because they will not have
to apply for an individual permit at a later date to revert the land
back to its prior condition.
Several commenters stated that notification to the resource
agencies should be required for all activities authorized by this NWP.
One commenter recommended requiring agency coordination for all
activities authorized under part (iv) of this NWP. This commenter also
recommended that project proponents for stream restoration activities
should be required to coordinate with the Corps and Federal and State
fish and wildlife agencies prior to submitting a PCN under part (iv).
Many commenters suggested PCN thresholds, ranging from \1/10\ acre to 1
acre. One commenter stated that downstream landowners should be
notified of proposed stream restoration projects.
To clarify the notification requirements of this NWP, we are
proposing to restructure NWP 27 to make it easier to understand which
activities require notification to the District Engineer. Notification
is not required for: (1) activities on public or private land where the
landowner has an agreement with the FWS or NRCS, (2) activities on
Federal land, or (3) activities on reclaimed surface coal mined land in
accordance with a Surface Mining Control and Reclamation Act permit
issued by the Office of Surface Mining or the applicable state agency.
Notification is also required if a permittee wants to use NWP 27 to
authorize the construction of a compensatory mitigation site (see the
Note at the end of NWP 27). We disagree that agency coordination should
be conducted for all activities authorized by this NWP, because this
NWP authorizes activities that benefit the aquatic environment. Corps
district personnel possess the knowledge and experience to assess the
environmental effects, both beneficial and adverse, of those activities
requiring notification. If the proposed work will result in more than
minimal adverse effects on the aquatic environment, the District
Engineer will exercise discretionary authority and require an
individual permit. Requiring project proponents to coordinate with the
Corps and fish and wildlife agencies prior to submitting a PCN is
unlikely to provide any benefits for the aquatic environment, and will
serve only to discourage stream restoration projects because the
authorization process will become too burdensome for many landowners.
For many of the reasons cited above, we do not believe it is necessary
to place a PCN threshold based on acreage on this NWP, or to notify
downstream landowners of proposed stream restoration projects.
Several commenters stated that the NWP is too vague and is
vulnerable to abuse. A number of commenters requested the inclusion of
narrow definitions of authorized activities in the NWP. Two commenters
asked how the Corps will assess functional gains. One commenter stated
that NWP 27 should authorize only ecological-based stream restoration.
One commenter asked if NWP 27 was intended to apply to the compensatory
mitigation requirements of other Corps permits. Another commenter
recommended that the NWP require the planting of native species at the
site.
No activities or discharges not directly related to the restoration
of ecological values or aquatic functions are authorized by this NWP.
This NWP can be used to authorize wetland and stream restoration
activities required by other Corps permits. The intent of the proposed
modification of this permit is to facilitate the restoration of
degraded or altered streams and wetlands. The goals of the proposed
activities must be based upon the enhancement, restoration, or creation
of the ecological conditions that existed, or may have existed, in the
stream or wetland prior to disturbance, or to otherwise improve the
aquatic functions and values of such areas. The activities may include,
but are not limited to, the modification of the hydrology, vegetation,
or physical structure of the altered or degraded stream or wetland. If
additional protection is necessary, division engineers can add regional
conditions to this NWP. We have added a provision to the proposed
modification of NWP 27 that requires the permittee to utilize native
plant species if he or she is vegetating the project site. We are
limiting this requirement to plant species installed by the permittee,
because non-native plant species may naturally colonize the project
site and we cannot require the permittee to remove those plants.
Some commenters recommended requiring binding agreements for
activities authorized by this NWP. One commenter stated that management
plans were needed in all cases. One commenter recommended requiring
detailed restoration plans. One commenter recommended prohibiting
future fills in areas that have reverted to prior condition under parts
(ii) and (iii). Another commenter stated that wetland and stream
restoration and enhancement activities by State resource management
agencies should be included in NWP.
We do not believe that binding agreements or detailed restoration
plans are necessary in all cases. Where the NWP authorizes reversion of
the created or restored wetlands to its non-wetland state (i.e., in
those cases involving private parties entering into contracts or
agreements with, or documentation of prior condition by, the NRCS or
FWS under special wetland programs or an Office of Surface Mining (OSM)
or applicable state program permit), then a binding agreement,
documentation, or permit by NRCS, FWS, or OSM or applicable state
agency which clearly documents the prior condition is required. This
reversion can only occur when these instruments clearly document the
prior condition. In all other cases where the reversion opportunity is
not included, a Corps permit would be required for alteration of the
site. Therefore, no binding agreement, detailed restoration plan, or
documentation of the prior conditions will be required. Because the
permit is limited to restoration, enhancement, and creation activities
and because authorizations for those projects do not provide the
opportunity for reversion, except as noted above, without a permit from
the Corps, we believe that a management plan would be unnecessarily
burdensome without
[[Page 39302]]
additional environmental benefits. Activities by State natural resource
management agencies are already authorized by this NWP, but may require
notification to the Corps unless those activities are in the categories
described by paragraphs (a)(1), (a)(2), or (a)(3).
One commenter stated that evaluation of upstream and downstream
impacts should be conducted. Another commenter stated that NWP 27
should not authorize activities that impede fish passage. A couple of
commenters requested that the NWP should not be allowed in exceptional
use waters and wild and scenic rivers.
All activities authorized by this NWP must comply with General
Condition 21, Management of Water Flows. Compliance with this condition
will ensure that the authorized activity results in minimal adverse
effects on hydrology upstream and downstream of the project site.
Similarly, all activities authorized by this NWP must comply with
General Condition 4, Aquatic Life Movements, to ensure that the
authorized work results in no more than minimal adverse effects on
aquatic life movements. The requirement to comply with General
Condition 7 will ensure the proper coordination to prevent adverse
impacts to Federally-designated wild and scenic rivers. In addition,
districts have coordinated with Federal and State natural resource
agencies to discuss appropriate regional conditioning for the NWPs.
Proposed General Condition 25 requires notification to the District
Engineer if the proposed activity will occur in NOAA-designated marine
sanctuaries, National Estuarine Research Reserves, National Wild and
Scenic Rivers, critical habitat for Federally-listed threatened or
endangered species, coral reefs, State natural heritage sites, and
outstanding national resource waters or other waters officially
designated by a State. Restricting the use of NWP 27 in exceptional use
waters will also be considered at the district level.
This NWP is subject to the requirements of proposed General
Conditions 25 and 26. General Condition 25 requires the prospective
permittee to notify the District Engineer in accordance with General
Condition 13 for activities in designated critical resource waters,
including wetlands adjacent to those waters. The District Engineer may
authorize NWP 27 activities in these waters if the adverse effects are
no more than minimal. General Condition 26 prohibits the use of this
NWP to authorize discharges resulting in the loss of greater than 1
acre of impaired waters, including adjacent wetlands. NWP 27 activities
resulting in the loss of 1 acre or less of impaired waters, including
adjacent wetlands, are prohibited unless prospective permittee
demonstrates to the District Engineer that the activity will not result
in further impairment of the waterbody.
In the proposed modification of NWP 27, we are proposing to add a
note to the NWP to clarify the compensatory mitigation is not required
for activities authorized by this NWP, provided the work results in a
net increase in aquatic resource functions and values in the area. The
note also states that NWP 27 can be used to authorize compensatory
mitigation projects, including mitigation banks, as long as the project
includes compensatory mitigation for any losses of waters of the United
States that may occur as a result of constructing the compensatory
mitigation project. The proposed note also states that NWP 27 does not
authorize reversion of sites used as compensatory mitigation projects
to prior conditions.
In response to a PCN, district engineers can require special
conditions on a case-by-case basis to ensure that the adverse effects
on the aquatic environment are minimal or exercise discretionary
authority to require an individual permit for the work. The issuance of
this NWP, as with any NWP, provides for the use of discretionary
authority when valuable or unique aquatic areas may be affected by
these activities.
39. Residential, Commercial, and Institutional Developments
This NWP was proposed as NWP A in the July 1, 1998, Federal
Register notice. NWP 26 has been used extensively to authorize
discharges of dredged or fill material into waters of the United States
for residential, commercial, industrial, and institutional development
activities. Based on the comments received in response to the July 1,
1998, Federal Register notice, we have made changes to the proposed
NWP, which are discussed in further detail below. We are proposing to
use an index to determine the acreage limit for this NWP. The index
will be based on a percentage of the project area, with a \1/4\ acre
base limit. The maximum acreage loss that can be authorized by this NWP
is 3 acres. We are also proposing to restrict the list of activities
authorized by this NWP to building pads, building foundations, and
attendant features for residential, commercial, and institutional
development activities. We have reduced the PCN threshold from \1/3\
acre to \1/4\ acre. A PCN will be required for all activities that
involve discharges of dredged or fill material into open waters. We
believe that these changes will ensure that this NWP authorizes only
those development activities that are similar in nature and have
minimal adverse effects on the aquatic environment, individually or
cumulatively. In addition, to further ensure that the NWP authorizes
activities with only minimal adverse effects on the aquatic
environment, most, if not all, Corps districts will impose regional
conditions on this NWP.
General: Nearly 350 comments were received that specifically
addressed this NWP. Many commenters opposed the issuance of this NWP,
but a few favored its issuance. Many of the commenters who objected to
the issuance of this NWP believe that it authorizes activities with
more than minimal impacts, resulting in excessive cumulative adverse
effects on the aquatic environment. Several commenters stated that the
types of activities authorized by this NWP should be subject to the
individual permit process and public comment. Another commenter stated
that this NWP is essentially the same as NWP 26, with an expanded scope
of waters where it can be used.
NWPs can only authorize activities that have minimal adverse
effects on the aquatic environment, individually or cumulatively. We
have established PCN thresholds to allow district engineers to review
all activities authorized by this NWP that could potentially result in
more than minimal adverse effects on the aquatic environment. We
believe that, in most cases, residential, commercial, and institutional
development activities that result in the loss of less than \1/4\ acre
of wetlands have minimal adverse effects on the aquatic environment. In
watersheds or waterbodies where losses of less than \1/4\ acre of
waters of the United States may result in more than minimal adverse
effects, division engineers can regionally condition this NWP to lower
the notification threshold or require notification for all activities.
This NWP can also be revoked by division engineers in those watersheds
or geographic regions where use of the NWP will cause more than minimal
cumulative adverse effects on the aquatic environment. By restricting
the proposed NWP to the construction of building pads, building
foundations, and attendant features, we are limiting the use of this
NWP to the development activity, which is much narrower than the scope
of activities that could be authorized by NWP 26.
[[Page 39303]]
Types of Waters Affected: Several commenters objected to this NWP
because it authorizes residential, commercial, and institutional
development activities in all non-tidal waters of the United States,
excluding non-tidal wetlands contiguous to tidal waters. They believe
that the scope of applicable waters for this NWP will increase wetland
destruction. In contrast, two commenters stated that this NWP should be
applicable in all non-tidal waters, including non-tidal wetlands
contiguous to tidal waters. Another commenter recommended that wetlands
and waters adjacent to tidal waters should be excluded from the use of
this NWP as are contiguous wetlands. Two commenters stated that this
NWP should authorize only activities in isolated wetlands less than 1
acre in size.
To increase protection of the aquatic environment, we are proposing
to change the applicable waters of this NWP to: non-tidal waters,
excluding non-tidal wetlands adjacent to tidal waters. This change in
applicable waters will reduce the geographic extent in which NWP 39 can
be used. High value isolated waters can receive additional protection
through regional conditions to restrict or prohibit the use of this NWP
in those waters.
Another commenter stated that the expansion of applicable waters
from headwaters and isolated wetlands will result in degradation of
water quality by destroying wetlands which trap sediments and take up
pollutants. This commenter also stated that the NWP does not specify
stormwater management requirements needed to prevent water quality
degradation.
We are proposing to modify General Condition 9, Water Quality, to
require a water quality management plan for activities authorized by
this NWP. The purpose of the water quality management plan is to ensure
that the activities authorized by this NWP result in only minimal
degradation of downstream water quality. The permittee must utilize
stormwater management techniques and vegetated buffers to ensure that
the project complies with this condition and does not result in
substantial degradation of downstream water quality. The requirements
of proposed General Condition 26 will also prevent further degradation
of impaired waters by limiting the use of this NWP to authorize
discharges in impaired waterbodies and adjacent wetlands.
Types of Activities Authorized: Many commenters stated that this
NWP does not comply with Section 404(e) of the Clean Water Act, which
requires activities authorized by general permits to be ``similar in
nature.'' They believe that this NWP authorizes a wide variety of
activities and does not comply with this requirement. One commenter
recommended that the Corps develop a more limited list of activities
authorized by this NWP. Another commenter suggested that a separate NWP
should be developed for each category of activities. Several other
commenters objected to this NWP because they believe that it authorizes
activities that are not water dependent and that these activities
should not be authorized in wetlands. One commenter suggested that the
NWP should authorize only the construction of buildings and attendant
features and should not authorize ball fields and golf courses.
In response to these comments, we have restricted the list of
activities authorized by the proposed NWP to building pads,
foundations, and attendant features constructed for residential,
commercial, and institutional purposes. A structure must be built on
the building pad or foundation to quality for authorization under this
NWP. Attendant features, as defined for the purposes of this NWP, are
those features necessary for the use, operation, and maintenance of the
residential, commercial, or institutional building. District engineers
will determine whether or not a particular attendant feature can be
authorized by this NWP. Attendant features can include, but are not
limited to: roads constructed within the development project area,
parking lots, storage buildings, garages, physical plant, sidewalks,
stormwater management facilities, utilities, lawns and landscaped
features, and recreational facilities such as playgrounds for schools
and day care centers. We do not believe that it is necessary to develop
a separate NWP for each category of activity because limiting the
proposed NWP to building pads and attendant features necessary for the
operation and use of those buildings complies with the similar in
nature requirement of Section 404(e) of the Clean Water Act. The
purpose of the building and attendant features (i.e., whether it is for
residential, commercial, industrial, or institutional purposes) is
usually irrelevant in terms of adverse effects on the aquatic
environment. The construction of a building pad or foundation for a
residential, commercial, or institutional building has the same effects
on aquatic habitat because it replaces an aquatic area with a building.
Issuing a separate NWP for each type of development activity would also
result in a much more complex NWP program with a substantially larger
number of NWPs. Authorization of the necessary attendant features with
the building pad or foundation will help ensure that the NWP authorizes
all activities associated with a single and complete project and avoid
piecemealing of projects. In addition, by authorizing the entire
development project with one NWP, we will be better able to assess the
adverse effects of the entire development on the aquatic environment.
Residential developments include single and multiple unit
developments. A residential subdivision may be authorized by this NWP
as a single and complete project. This NWP also authorizes the
construction of apartment complexes. Developers and speculative
builders can use this NWP to construct single family residences. We
have removed the language from the proposed NWP A published in the July
1, 1998, Federal Register notice that prohibited the use of this NWP to
authorize the construction of a single family residence and attendant
features for personal residence for the permittee. Although this change
results in some overlap between this NWP and NWP 29 because they both
can authorize single family residences, we believe that this overlap
does not result in less protection of the aquatic environment. The
construction of a single family residence, whether it is constructed by
the property owner who will live in the residence or by a contractor or
speculative builder who will later sell the completed residence, has
the same adverse effects on the aquatic environment. Although NWP 39
may have a higher indexed acreage limit than NWP 29, the geographic
scope of applicable waters for NWP 39 is much less than the scope of
applicable waters for NWP 29. NWP 39 cannot be used to authorize
discharges into non-tidal wetlands adjacent to tidal waters, but NWP 29
can authorize discharges in those non-tidal wetlands. NWP 39 has a more
stringent avoidance and minimization requirement than NWP 29 because it
requires the permittee explain, in the notification submitted to the
District Engineer, how avoidance and minimization was achieved on the
project site. District engineers will receive PCNs for activities that
result in the loss of greater than 1/4 acre of waters of the United
States or involve discharges into open waters, such as streams. Based
on the review of the PCN, the District Engineer will determine if the
proposed work results in minimal adverse effects on the
[[Page 39304]]
aquatic environment and qualifies for authorization under NWP 39. We
also believe that prohibiting the use of NWP 39 to authorize the
construction of a single family home for the property owner, but
allowing a contractor or speculative builder to use NWP 39 to construct
a single family residence, is unfair to the regulated public because it
places different restrictions based solely on who the applicant is
(i.e., whether the applicant will be the resident of the home or if the
applicant is a contractor or a speculative builder will sell the
completed home at a later time to a future occupant). Such inequities
are likely to lead to selective use of these two NWPs. A property owner
can ask a contractor to apply for NWP 39 authorization for a higher
acreage limit, instead of applying for an NWP 29 authorization. Since
NWPs can authorize only those activities that result in more than
minimal adverse effects on the aquatic environment, individually or
cumulatively, we believe this overlap between NWPs 29 and 39 is not
contrary to Section 404(e) of the Clean Water Act.
Commercial developments authorized by this NWP include, but are not
limited to, retail and wholesale stores, shopping centers, industrial
facilities, malls, restaurants, hotels, business parks, and other
buildings for the production, distribution, and selling of goods and
services, as well as attendant features for those buildings.
Institutional developments include, but are not limited to, schools,
police stations, fire stations, government office buildings, libraries,
courthouses, public works buildings, college or university buildings,
hospitals, and places of worship. This NWP does not authorize the
construction of new ski areas or the installation of oil or gas wells.
One commenter stated that the term ``infrastructure'' is poorly
defined in the NWP. Another commenter suggested that infrastructure
should be authorized by a separate NWP. Three commenters recommended
that this NWP authorize the roads constructed by State or local
governments to the development, not just the roads within the
development.
For the purposes of the proposed NWP, infrastructure includes
attendant features necessary for the operation of the residential,
commercial, or institutional development or building, such as
utilities, roads, and stormwater management facilities. Utilities that
are not an integral part of the development, but are shared with other
developments, may be authorized by other NWPs, such as NWP 12, regional
general permits, or individual permits. The proposed NWP authorizes
only those roads within the project area (e.g., the subdivision). Roads
leading to the project area, including those roads constructed by State
or local governments, may be authorized by NWP 14, another NWP,
regional general permit, or individual permit. These roads typically
serve other areas and may be considered as separate single and complete
projects.
The proposed NWP does not authorize discharges of dredged or fill
material into waters of the United States for the construction or
expansion of golf courses unless the golf course is an integral part of
a residential subdivision. However, this NWP may be used to authorize
the clubhouse, storage buildings, or garage for a golf course. A golf
course that is not an integral part of a residential subdivision may be
authorized by proposed NWP 42, Recreational Facilities, provided the
golf course is designed and constructed in a manner that complies with
the terms of that NWP. Golf courses as primary projects are not
authorized by this NWP because they do not require building pads or
foundations to fulfill their primary purpose. Rather, the clubhouse,
storage building, or garage is an attendant feature of the golf course,
not vice versa. Golf courses can also be authorized by other NWPs,
regional general permits, or individual permits.
One commenter requested that the Corps develop a separate NWP for
shopping centers because shopping centers differ from residential,
commercial, and institutional developments. Another commenter stated
that institutional facilities should include reuse plants, wastewater
treatment facilities, and water treatment plants. One commenter stated
that community recreation activities should not be authorized by this
NWP.
We do not believe it is necessary to issue a separate NWP for
shopping centers because shopping centers are a specific type of
commercial development. The adverse effects on the aquatic environment
resulting from the construction and use of shopping centers are similar
to the impacts of other types of commercial developments. Reuse plants,
wastewater treatment facilities, and water treatment plants may be
authorized by this NWP, at the discretion of the District Engineer. We
cannot list every type of residential, commercial, or institutional
development that is authorized by the proposed NWP because such a list
would be impractical and unnecessarily restrict the use of this NWP for
other development activities that have minimal adverse effects on the
aquatic environment. For those discharges that require notification the
District Engineer will determine if the proposed activity qualifies for
authorization under this NWP. For discharges that do not require
notification, a permittee can contact the appropriate Corps district
office to determine if his or her development activity is eligible for
this NWP.
A commenter requested that the NWP explicitly authorize all
commercial and industrial activities because this NWP could be
interpreted as not authorizing general industry construction. This
commenter stated that there is no difference between commercial
developments and general industrial developments. Another commenter
requested clarification as to whether the term ``institutional
developments'' includes government facilities.
We agree with these commenters and have stated in the text of the
proposed NWP that industrial facilities and government office building
pads, foundations, and attendant features may be authorized by this
NWP.
We do not agree that community recreation activities should not be
authorized by this NWP, because NWP 39 authorizes attendant features
associated with a residential, commercial, or institutional
development. These attendant features may include playgrounds and
playing fields, provided those facilities are constructed in
conjunction with a residential subdivision or school building.
Excluding these features would be contrary to the purpose of the
proposed NWP, which is to authorize all necessary attendant features
associated with the buildings as part of a single and complete project.
This NWP does not authorize discharges of dredged or fill material into
waters of the United States for the construction of recreational
facilities unless those recreational facilities are attendant features
for residential, commercial, or institutional buildings. However, the
building need not be constructed in waters of the United States for the
attendant features to be authorized by NWP 39. Recreational facilities
not constructed with residential, commercial, or institutional
buildings may be authorized by proposed NWP 42, other NWPs, regional
general permits, or individual permits.
Several commenters stated that rechannelization of streams should
not be authorized by this NWP. One commenter said that stream
rechannelization would not comply with the proposed modifications to
General Conditions 21 and 9 because rechannelization causes more than
minor changes in flow characteristics and could measurably degrade
water quality. Another commenter stated that
[[Page 39305]]
the list of authorized activities should include drainage facilities,
culverts, and drainage ditches.
To address concerns regarding stream channelization associated with
residential, commercial, and institutional development projects, we
have added paragraph (j) to proposed NWP 39. Paragraph (j) prohibits
the channelization or relocation of stream beds downstream of the point
on the stream where the average annual flow is 1 cubic foot per second.
Therefore, only small streams can be channelized or relocated by this
NWP. We believe that this restriction will help ensure that
residential, commercial, and institutional development activities will
result in minimal adverse effects on the aquatic environment. It should
also be noted that notification is required for all discharges
resulting in the loss of open waters, which allows district engineers
to review all proposed activities in streams and other open waters.
Division engineers can also regionally condition this NWP to prohibit
the channelization or relocation of high value streams with average
annual flows of 1 cubic foot per second or less. Channelization or
relocation of stream segments with average annual discharges of greater
than 1 cubic foot per second may be authorized by regional general
permits or individual permits. The construction or maintenance of
drainage facilities, culverts, and drainage ditches may be authorized
by this NWP only if they are attendant features necessary for the
residential, commercial, or institutional building. Drainage facilities
and ditches may be part of a stormwater management facility or road.
Culverts may be used to construct road crossings in the residential,
commercial, or institutional development.
Acreage Limit: In the July 1, 1998, Federal Register notice, we
requested comments on whether a simple acreage limit should be used for
this NWP or whether the acreage limit should be indexed or based on a
sliding scale. We proposed options for a simple limit of 3 acres and an
indexed acreage limit based on parcel size. Many commenters said that a
simple acreage limit should be used instead of indexing or a sliding
scale. A few commenters stated that the 3 acre limit is adequate. Many
commenters believe that the proposed acreage limit is too high. A
number of commenters recommended an acreage limit of 1 acre. Other
commenters proposed limits of \1/2\ acre and 2 acres. One commenter
recommended acreage limits of 2 acres of isolated wetlands and \1/3\
acre of headwater wetlands. Numerous commenters said that the 3 acre
limit is too low and that the acreage limit should be 5 acres. They
believe that the NWPs should be more flexible and should authorize all
activities that result in minimal adverse effects. They recommended
that PCNs should be used to determine whether or not a particular
project would result in more than minimal adverse effects. Two
commenters recommended a 10-acre limit and another commenter suggested
a 25-acre limit for this NWP. Some commenters remarked that the acreage
limit should be higher because the Corps has not demonstrated that
higher acreage limits will result in significant direct or cumulative
adverse effects.
Many of the commenters who stated that the 3 acre limit is too high
referred to the recent United States District Court decision in the
District of Alaska on NWP 29. They cited this court decision as
evidence that the acreage limit for NWP 39 is too high because the
Corps was enjoined from accepting NWP 29 preconstruction notifications
after June 30, 1998. Two commenters stated that the acreage limits and
PCN thresholds of this NWP and NWPs 29 and 40 should be similar.
In its decision, the District Court did not rule that the acreage
limit for NWP 29 (i.e., \1/2\ acre of non-tidal waters) was too high.
The District Court merely required the Corps to consider lower acreage
limits and the exclusion of high value waters in its environmental
assessment.
For activities in non-tidal wetlands, NWPs 39 and 40 have different
acreage limits. NWP 39 utilizes an indexed acreage limit, as does NWP
40 for discharges into playas, prairie potholes, and vernal pools. NWP
40 utilizes a simple acreage limit of 2 acres for discharges into other
types of non-tidal wetlands. We are not proposing an indexed acreage
limit for discharges authorized by NWP 40 into non-tidal wetlands
because the national average for farm tract size is approximately 275
acres, which means that most agricultural producers would qualify for
the maximum acreage limit of 2 acres. However, we are proposing to
utilize an indexed acreage limit for discharges into playas, prairie
potholes, and vernal pools. Most residential, commercial, and
institutional developments, on the other hand, would be subject to the
indexed acreage limit since most of these developments occur on
relatively small parcels of land and the indexed acreage limit would
encourage avoidance and minimization of impacts to waters of the United
States. It would be impractical for this NWP to have the same acreage
limit as NWP 29 because these NWPs fulfill different purposes. NWP 29
applies solely to the construction of a single family residence whereas
NWP 39 may be used to authorize the construction of a large residential
subdivision, a commercial development, or an institutional development.
The PCN requirements of NWPs 29 and 39 are different. NWP 29 requires
notification for all activities authorized by that NWP. NWP 39 requires
notification for activities resulting in the loss of greater than \1/4\
acre of non-tidal waters and any discharges resulting in the loss of
open waters.
Several commenters favored the use of a sliding scale or indexing
to determine the acreage limit for this NWP. A few commenters noted
that the sliding scale is too complex to implement. Some of the
commenters endorsing the use of a sliding scale recommend basing the
indexing on a percentage of the development size. One commenter
suggested that the acreage limit should be based on 10% of the parcel
size, another commenter suggested that the maximum acreage should be 5%
of the parcel size, several commenters recommended an acreage limit 2%
of the parcel size, and two commenters recommended using 1% of the
parcel size as the acreage limit. Another commenter recommended a
minimum acreage limit of \1/3\ acre plus 10% of the wetlands on the
parcel for this NWP.
One commenter stated that a percentage of parcel size should be
used as the basis for the index because if the indexing scheme proposed
in the July 1, 1998, Federal Register is used, a small increase in
parcel size could allow a much larger loss of wetlands. For example, a
parcel size of 14.4 acres would have an acreage limit of 1 acre whereas
a 15.1 acre parcel would have an acreage limit of 2 acres. In contrast,
an index based on the percentage of parcel size or project area would
result in a small increase in the acreage limit with a small increase
in parcel size or project area.
Other commenters remarked that the indexing scheme proposed in the
July 1, 1998, Federal Register notice has acreage limits so low for
each size category that it is useless. If indexing is used to determine
the acreage limit, these commenters requested that the Corps base the
index on higher acreage limits. In contrast, some commenters stated
that the indexing should be based on lower acreage limits. One
commenter recommended an indexed acreage limit of \1/4\ acre for every
5 acres of parcel size.
In response to these comments, we have decided to utilize an
indexed acreage limit for this NWP. The
[[Page 39306]]
proposed index begins with a base acreage limit of \1/4\ acre and
increases as 2% of the project area, in acres. The maximum acreage
limit for this NWP is 3 acres of non-tidal waters of the United States,
excluding non-tidal wetlands adjacent to tidal waters. The acreage
limit for this NWP is calculated as follows:
Acreage limit = \1/4\ acre + 2% of the project area (in acres) For
example if the project area is 5 acres, the acreage limit would be 0.35
acres. If the project area is 80 acres, the acreage limit would be 1.85
acres. With this indexed acreage limit, the maximum limit of 3 acres is
reached at a project area of 137.5 acres. If the project area is
greater than 137.5 acres, the acreage limit is 3 acres.
Two commenters said that indexing should be based on the quality or
values of the aquatic resource lost due to the authorized work. They
stated that such a basis for indexing would ensure that only projects
with minimal adverse effects are authorized.
We believe that using functions and values of aquatic resources to
determine the maximum acreage limit for an NWP is impractical because
we do not currently have a standard method for measuring or assessing
aquatic resource functions and values.
One commenter stated that indexing duplicates requirements for
avoidance and minimization, including the statement required in
paragraph (f) of the proposed NWP A. Two commenters believe that
indexing is counter to the requirements for avoidance and minimization
and provides incentives for developers to build larger projects.
We disagree with these comments, because the purpose of using an
indexed acreage limit for this NWP is to have a proportionally smaller
acreage limit for smaller projects, which reduces the potential for
losses of waters of the United States. An indexed acreage limit
encourages avoidance and minimization because it imposes smaller
acreage limits on smaller projects rather than a single larger acreage
limit. With an indexed acreage limit, NWP applicants are still required
to avoid and minimize impacts to waters of the United States on-site to
the maximum extent practicable (see General Condition 19).
Another commenter asserted that project proponents will attempt to
get around indexing requirements by artificially defining the parcel as
larger than it really is to avoid going through the individual permit
process. Two commenters remarked that developers may phase projects so
that they can build projects with higher impact acreage limits using
the indexing scheme proposed in the July 1, 1998, Federal Register
notice. In this case, the Corps would have to determine if phasing
meets the criteria for a single and complete project. They believe that
the use of a sliding scale will encourage piecemealing of projects. One
commenter recommended that the term ``parcel size'' used in the
proposed indexing scheme should be replaced with the term ``single and
complete project,'' as defined by subdivision criteria.
We are proposing to base the indexed acreage limit on a percentage
of project area, not parcel size, to ensure that the NWP authorizes
only single and complete projects. Basing the indexed acreage limit on
project area will result in an acreage limit that reflects the actual
size of the proposed activity, which cannot be artificially inflated in
an attempt to get a higher acreage limit. Using the project area to
determine the acreage limit, a particular parcel could have separate
projects built upon it, with acreage limits based on the size of each
project, as long as each separate project has independent utility. If
the separate projects do not have independent utility, then the acreage
limit would be determined by the sum of the project areas for each
dependent component of the entire single and complete project.
Two commenters said that the proposed acreage limit will allow long
segments of streams to be impacted. Some commenters recommended limits
for the amount of linear feet of stream bed that may be filled or
excavated under this NWP. Commenters recommended limits of 50, 100, or
150 linear feet of stream bed.
It should be noted that the proposed NWP has a PCN requirement for
any loss of open waters, including streams. By reviewing the PCN,
district engineers will be able to determine if the loss of stream bed
will result in more than minimal adverse effects. If the stream bed
impacts are more than minimal, discretionary authority will be
exercised by the District Engineer, and the applicant will have to
apply for authorization through another permit process or modify the
project to comply with the NWP. Therefore, we do not believe that it is
necessary to impose a limit on the quantity of stream bed that can be
filled or excavated under this NWP.
Preconstruction Notification: We received a variety of comments
concerning the notification requirements for this NWP. A couple of
commenters supported the proposed PCN threshold of \1/3\ acre. Several
commenters stated that the PCN threshold should be \1/4\ acre. Two
commenters recommended a \1/2\ acre PCN threshold. Two commenters
believe that the PCN threshold should be 1 acre and a few commenters
stated that a PCN should be required for all activities authorized by
this NWP.
We believe that the PCN threshold should be \1/4\ acre, to be
consistent with the other new NWPs.
For this NWP, we also proposed to require notification for all
activities that involve filling or excavating open waters, such as
perennial or intermittent streams and lakes. One commenter stated that
this PCN requirement is excessive and would mean that a PCN will be
required for virtually all projects. This commenter also stated that
this PCN requirement implies that open waters are more important than
special aquatic sites and is contrary to the Section 404(b)(1)
guidelines. The commenter recommended that the Corps establish other
PCN thresholds for open water impacts instead, such as a 500 linear
foot PCN threshold for intermittent stream impacts, and require a PCN
for all perennial stream impacts. Another commenter recommended using
the size of the drainage area to determine when a PCN is required for
open water impacts. This commenter recommended requiring a PCN when the
drainage area is 1 square mile or greater. Another commenter believes
that the PCN requirement for open waters demonstrates a lack of
understanding that not all significant wetlands have open waters and
that this PCN requirement redefines wetlands.
We disagree with the assertion that this PCN requirement is
excessive and would result in PCNs for nearly all projects authorized
by this NWP. Many development projects authorized by this NWP would
only impact wetlands and would require notification only for those
activities that result in the loss of greater than \1/4\ acre of
wetlands. In addition, most residential, commercial, or institutional
development projects can be designed to avoid impacts to open waters.
Road crossings of streams that are constructed with culverts would
require submittal of a PCN. The purpose of this PCN requirement is to
allow district engineers to review residential, commercial, and
institutional development activities that result in a loss of open
waters, such as streams, and ensure that activities in these waters
will result only in minimal adverse effects on the aquatic environment.
We are proposing to add Note 2 to the text of this NWP to help the
regulated public identify those areas that require submission of a PCN
for discharges into open waters.
[[Page 39307]]
We are proposing to add the PCN requirement for discharges into
open waters to provide district engineers with the opportunity to
review activities in open waters and ensure that the authorized work
results in minimal adverse effects on the aquatic environment. One
intent of the proposed new and modified NWPs is to provide equal
consideration for open and flowing waters and wetlands. The proposed
NWPs focus on the aquatic environment as a whole, not just wetlands.
Streams and other open waters are extremely important components of the
overall aquatic environment. The proposed PCN requirement does not
redefine wetlands; it merely places additional emphasis on other types
of waters of the United States, such as lakes and streams. High value
wetlands and other waters will receive additional protection through
regional conditions and the use of discretionary authority where
discharges into high value waters may result in more than minimal
adverse effects on the aquatic environment.
Several commenters stated that the PCN process for this NWP does
not provide the Federal and State resource agencies the opportunity to
comment on projects that adversely affect less than 1 acre of waters of
the United States. These commenters believe that these agencies should
be allowed the opportunity to comment on these projects. One commenter
supported Corps-only review of projects that adversely affect between
\1/3\ acre and 1 acre of waters of the United States. One commenter
recommended agency coordination for activities resulting in the loss of
greater than \1/2\ acre of waters of the United States.
We are proposing to modify General Condition 13 to require agency
coordination for NWP 39 activities that result in the loss of greater
than 1 acre of waters of the United States. PCNs for activities that
result in the loss of \1/4\ acre to 1 acre of waters of the United
States will be reviewed solely by the Corps. Agency coordination for
smaller projects is costly to the Corps and provides little value added
in determining whether or not the work will result in minimal adverse
effects on the aquatic environment. Corps district personnel are highly
experienced in reviewing PCNs to assess the environmental effects of
the proposed work and recommending special conditions or requiring
compensatory mitigation to ensure that the adverse effects on the
aquatic environment are minimal. If the District Engineer determines
that the adverse effects are more than minimal, discretionary authority
will be exercised and the applicant will be notified that another form
of Corps authorization, such as an individual permit, is required for
the proposed work.
A few commenters stated that the PCN should include detailed plans
and schedules for compensatory mitigation. Another commenter
recommended that the PCN should include baseline data for stream flows
and a detailed analysis of stormwater standards to ensure compliance
with paragraph (g) (formerly paragraph (i) of NWP A) of the proposed
NWP.
We believe that it is unnecessary to require detailed plans and
schedules for compensatory mitigation with the PCN to ensure that the
adverse effects of the authorized work on the aquatic environment are
minimal. Requiring the submission of detailed compensatory mitigation
plans with the PCN will increase the amount of time required to review
the PCN. For the PCN, the applicant need only provide a conceptual
proposal for compensatory mitigation that will offset the loss of
aquatic resource functions and values. However, a detailed mitigation
plan may be submitted with the PCN if the applicant chooses to submit
such a plan. The District Engineer will evaluate the compensatory
mitigation proposal to determine if it is adequate to ensure that the
adverse environmental effects of the proposed work are minimal.
Detailed plans for project-specific compensatory mitigation projects
are usually required as special conditions of the NWP authorization. If
the proposed compensatory mitigation is provided through payment to an
approved mitigation bank or in lieu fee program, detailed plans are not
required because the Corps may have previously reviewed the plans for
the mitigation bank or in lieu fee site. It should be noted that Corps
must finish its review of the PCN within 45 days of receipt of a
complete PCN; such a time limit makes it difficult to thoroughly review
and approve detailed compensatory mitigation plans and schedules.
District engineers will determine compliance with paragraph (g) of
NWP 39 through qualitative methods or defer to State or local
regulatory agencies, who may require quantitative analyses to ensure
that the project does not result in more than minimal adverse effects
to water quality or surface water flows.
Statement of Avoidance: Paragraph (f) of the proposed NWP requires
the applicant to submit a statement with the PCN which demonstrates
that discharges into waters of the United States were avoided and
minimized to the maximum extent practicable and that additional
avoidance and minimization cannot be achieved. One commenter favored
this requirement, but a few commenters remarked that the requirement is
unnecessary and recommended that it be removed. One commenter stated
that the NWP regulations already require on-site avoidance and
minimization and that this requirement increases the burden on the
landowner and provides no environmental benefit. This commenter went on
to say that the Federal Register notice does not provide any guidance
as to what information is necessary to fulfill this requirement.
Another commenter stated that this requirement will be impossible to
implement. Several commenters stated that this requirement is
insufficient, and that projects should be subject to more comprehensive
alternatives analysis.
This requirement (now in paragraph (e) of NWP 39) is similar to the
requirements of General Condition 19, Mitigation. It merely requires
that the applicant provide a statement explaining how he or she is
complying with this general condition. We disagree that it will create
an additional burden on the project proponent because it will provide
the Corps with the relevant avoidance and minimization details early in
the PCN review process. In fact, submission of such a statement with
the PCN is likely to benefit project proponents because the Corps
personnel evaluating the PCN will not have to ask during the PCN review
period if additional avoidance and minimization can be achieved. We
believe that this requirement will save time and make the PCN process
more effective. This requirement will also encourage project proponents
to think more carefully about how to further avoid and minimize adverse
effects to waters of the United States on the project site.
To require a more comprehensive alternatives analysis is contrary
to the NWPs. NWPs authorize activities with minimal adverse effects on
the aquatic environment, and if the proposed work meets the terms and
limits of the NWP, the applicant cannot be required to consider off-
site alternatives. If the adverse effects of a particular project are
more than minimal the District Engineer will exercise discretionary
authority and require an individual permit for the proposed work. The
individual permit process requires a full alternatives analysis,
including the consideration of off-site alternatives.
Since the avoidance and minimization requirement and the
compensatory mitigation requirement of the NWP are related, we have
combined paragraphs (f) and (g) of proposed NWP
[[Page 39308]]
A into paragraph (e) of NWP 39. Compensatory mitigation requirements
for this NWP are discussed below.
Compensatory Mitigation: Paragraph (g) of the proposed NWP A stated
that the permittee must submit a mitigation proposal to offset the loss
of waters of the United States for activities that require
notification. One commenter recommended changing this requirement to
specify that the losses of wetland functions and values should be
offset, not just the acreage loss. This commenter stated that the
proposed wording is unclear and subject to various interpretations and
should be consistent with the mitigation memorandum of agreement (MOA)
signed in 1990.
This requirement has been incorporated into paragraph (e) of NWP
39. The purpose of compensatory mitigation is to offset losses of
functions and values of waters of the United States and ensure that the
net adverse effects on the aquatic environment are minimal. However, it
is important to allow district engineers the flexibility to require
compensatory mitigation that provides more benefits to the aquatic
environment. Out-of-kind compensatory mitigation, such as the
establishment and maintenance of vegetated buffers adjacent to streams,
may provide more benefits to the local aquatic environment than
replacing the wetland filled by the authorized work. It is also
important to note that compensatory mitigation may be required for
losses of other types of waters of the United States, not only
wetlands. District engineers can require a greater acreage of
compensatory mitigation to replace the aquatic resource functions and
values lost due the authorized work if the compensatory mitigation
cannot readily replace the lost functions and values. On the other
hand, if the waters of the United States lost as a result of the
authorized work are low value, providing few functions and values, a
smaller acreage of compensatory mitigation may be appropriate to offset
the lost functions and values of that area.
The mitigation process, as defined in the Council on Environmental
Quality's regulations at 40 CFR Part 1508.20, includes avoidance,
minimization, and compensation. Therefore, we are providing further
clarification for this requirement by inserting the word
``compensatory'' in front of the word ``mitigation'' to state that the
type of mitigation required by the District Engineer is compensation to
replace losses of functions and values of waters of the United States.
Two commenters support the requirement for compensatory mitigation
for losses that require a PCN. Several commenters objected to this NWP
because this condition does not specifically require compensatory
mitigation for losses of less than \1/3\ acre, which they believe will
result in substantial cumulative adverse effects on the aquatic
environment. Another commenter suggested that compensatory mitigation
should be required for impacts to perennial streams. One commenter
stated that mitigation proposals should be subject to agency review. A
commenter recommended modifying this paragraph to allow the permittee
the opportunity to justify why compensatory mitigation should not be
required for a particular project.
It should be noted that paragraph (e) only requires the submission
of a compensatory mitigation proposal to the District Engineer with the
notification, and is not a requirement for compensatory mitigation. The
prospective permittee may submit either a conceptual or detailed
compensatory mitigation proposal. District engineers will determine on
a case-by-case basis if compensatory mitigation is necessary to ensure
that the proposed activity will result in minimal adverse effects on
the aquatic environment, individually or cumulatively. However, in most
cases, compensatory mitigation will be required for activities that
require notification to ensure that those activities result only in
minimal adverse effects on the aquatic environment. In paragraph (e),
we have stated that compensatory mitigation will normally be required
to offset losses of waters of the United States, but if the applicant
believes that the adverse effects of the project on the aquatic
environment are minimal without compensatory mitigation, then the
applicant can provide justification with the PCN for the District
Engineer's consideration.
Compensatory mitigation is not required for activities that do not
require preconstruction notification, because the adverse effects on
the aquatic environment caused by those activities are minimal. In
watersheds where small losses of waters of the United States have
greater potential for more than minimal adverse effects, division
engineers can regionally condition the NWP to lower the notification
threshold, which will allow district engineers to require compensatory
mitigation for losses of less than 1/4 acre of waters of the United
States. For activities that require Corps-only review of the PCN,
agency review is not required to review the compensatory mitigation
proposal because the District Engineer will determine whether or not
the proposed mitigation is appropriate. For PCNs subject to agency
coordination, Federal and State resource agencies will have the
opportunity to review the compensatory mitigation proposal submitted
with the notification.
One commenter stated that buffers adjacent to any waters of the
United States, not just open water, should be part of any required
compensatory mitigation.
We concur with this comment and have stated elsewhere in this
notice that district engineers can consider the establishment and
maintenance of vegetated buffers adjacent to waters of the United
States, including wetlands, as compensatory mitigation for losses of
waters of the United States. Vegetated buffers adjacent to waters of
the United States, including open waters and wetlands, can be
considered as out-of-kind compensatory mitigation because vegetated
buffers are important components of the aquatic environment due to the
functions they provide, especially for maintaining water quality and
habitat for aquatic organisms. Vegetated buffers reduce adverse effects
to local water quality caused by adjacent land use. Forested riparian
buffers provide shade to streams, supporting cool water fisheries. When
determining the appropriate amount of compensatory mitigation required
for particular projects, district engineers should reduce the amount of
``replacement acreage'' required as compensatory mitigation by an
amount that recognizes the value of the vegetated buffer to the aquatic
environment.
One commenter recommended that on-site mitigation should be
considered before off-site mitigation and that off-site mitigation
should be accepted only if on-site mitigation is not environmentally
beneficial. Two commenters oppose the use of mitigation banks and in
lieu fee programs to provide compensatory mitigation for activities
authorized by this NWP. Another commenter recommended that where
compensatory mitigation is required, it should be done in a State-
sponsored mitigation bank within the same drainage basin.
The sequencing requirements for compensatory mitigation recommended
in the previous paragraph have limitations. Compensatory mitigation
projects, whether they are individual projects that restore, enhance,
or create aquatic areas or are payments to mitigation banks or in lieu
fee programs, should be selected on the basis of their chance for
success and their
[[Page 39309]]
effectiveness at offsetting authorized losses of waters of the United
States. In-kind and on-site requirements for compensatory mitigation
should be considered, but not to the exclusion of what is best for the
aquatic environment. If off-site compensatory mitigation will provide
more benefits to the local aquatic environment, then that form of
compensatory mitigation should be selected. On-site wetland creation
projects are often unsuccessful because of changes to local hydrology
caused by the authorized activity, which may prevent the development of
a functional replacement wetland. On-site restoration may have a better
chance of success, but success may not be achieved because of changes
in land use in the vicinity of the authorized work. It is often better
to utilize off-site wetland creation, restoration, and enhancement
projects, including mitigation banks and in lieu fee programs, if they
are appropriate and available. The use of mitigation banks to provide
compensatory mitigation for losses of waters of the United States
authorized by NWPs should not be limited to State-sponsored mitigation
banks. Permittees should be allowed to use any mitigation bank in the
area that replaces functions and values of waters of the United States,
including wetlands, lost due to the authorized work. When reviewing
compensatory mitigation proposals, district engineers will consider
what is best for the aquatic environment, including requiring vegetated
buffers to open and flowing waters and wetlands.
One commenter recommended that the NWP contain a provision
requiring all remaining wetlands on the parcel to be protected by a
conservation easement to prohibit any future development on the
property.
We disagree, because such a requirement can be considered a taking
of private property, unless the applicant agrees to preserve the
remaining wetlands on the property as compensatory mitigation for
authorized losses of waters of the United States. If there are any
streams or other open waters on the project site, the District Engineer
can require the permittee to establish and maintain vegetated buffers
adjacent to those waters as compensatory mitigation. The vegetated
buffers should be protected by a conservation easement, deed
restriction, or other legal means.
Use of This NWP With Other NWPs: Paragraph (h) of the proposed NWP
A addressed the use of this NWP with other NWPs. This paragraph has
been changed to paragraph (f), and only addresses the PCN threshold
when this NWP is used with other NWPs. The use of NWP 39 with other
NWPs is addressed in the proposed modification of General Condition 15.
Paragraph (f) has been modified to reflect the changes in the PCN
threshold discussed above.
One commenter supported this requirement of paragraph (h) of the
proposed NWP A. Another commenter stated that this NWP should not be
stacked with other NWPs because this NWP authorizes all activities
associated with the single and complete project. One commenter said
that this NWP should not be combined with other NWPs to authorize
permanent, above-grade fills. One commenter stated that this NWP should
not be combined with other NWPs.
Although the proposed NWP 39 authorizes the construction of
building pads, foundations, and attendant features for a single and
complete residential, commercial, or institutional development, there
may be circumstances where other NWPs are necessary to authorize
discharges of dredged or fill material into waters of the United States
for related activities that occur in types of waters not covered by
this NWP. It is important to consider these additional activities as
part of the single and complete project. For example, a community boat
ramp that can be authorized by NWP 36 may be constructed in tidal
waters for a new residential subdivision that is authorized by NWP 39.
In this situation, when NWP 39 is combined with NWP 36, the total loss
of waters of the United States cannot exceed the indexed acreage limit
for NWP 39. The use of more than one NWP to authorize a single and
complete project is addressed in the proposed modification of General
Condition 15.
One commenter stated that the stacking limitation assumes that
projects with greater than 3 acres of impact to waters of the United
States exceed the minimal adverse effects threshold and that it is
illogical for the Corps to assume that each NWP, if used alone, will
result in minimal impacts, but if used with other NWPs will result in
more than minimal adverse effects. This commenter asserted that the
Corps has no evidence to support its contention that NWP stacking in
excess of 3 acres will result in more than minimal impacts and
recommended that the Corps eliminate this condition of the NWP because
the PCN requirement is sufficient to ensure that the NWP authorizes
only those activities with minimal adverse effects. This commenter also
stated that the stacking restriction is contrary to 33 CFR Part
330.6(c).
For the NWPs, we establish acreage limits that will ensure that the
authorized activities will not result in more than minimal adverse
effects on the aquatic environment, individually or cumulatively. There
may be some circumstances (e.g., projects in low value waters of the
United States) where larger impacts result in minimal adverse effects.
If a particular district has a large number of these types of projects,
then that district can develop a regional general permit to authorize
those activities. When more than one NWP is used to authorize a single
and complete project, the District Engineer must consider the additive
adverse effects on the aquatic environment. Each NWP has an acreage
limit based on a minimal adverse effects determination made only for
that NWP. By combining NWPs, the sum of the acreage losses and the sum
of the adverse effects of those losses on the aquatic environment
increases the probability that the minimal adverse effects threshold
will be exceeded. Since the NWPs can authorize only those activities
that result in minimal adverse effects on the aquatic environment,
individually or cumulatively, a prohibition against stacking NWPs to
exceed a specified acreage limit is necessary. General Condition 15 is
not contrary to 33 CFR Part 330.6(c) because this regulation does not
eliminate the need to comply with Section 404(e) of the Clean Water Act
and 33 CFR Part 323.2(h).
Two commenters stated that any stacking that occurs with this NWP
should have an acreage limit equal to the lower acreage limit for any
of the NWPs involved. Another commenter suggested that any stacking
that occurs with this NWP should have an acreage limit equal to the
higher acreage limit for any of the NWPs involved. Two other commenters
stated that paragraph (h) of the proposed NWP A should be revised to
specify that total acreage cannot exceed 3 acres or the indexed acreage
limit of the NWP, whichever is less. One commenter recommended that
this NWP should not be stacked with NWP 29.
We disagree with the first comment in the previous paragraph
because it would render this NWP useless in most situations. For
example, NWP 36 limits the construction of boat ramps to a maximum
width of 20 feet and a maximum discharge of 50 cubic yards. By
requiring a combination of this NWP and NWP 36 to be subject to the
lesser acreage limit of NWP 36, NWP 39 would essentially authorize no
residential, commercial, or institutional development activities when
combined with NWP 36. We are proposing to
[[Page 39310]]
modify General Condition 15 to allow the use of more than one NWP to
authorize a single and complete project, as long as the acreage loss
does not exceed the highest specified acreage limit of the NWPs used to
authorize that activity. The statement in paragraph (f) regarding the
PCN threshold has been changed to include the PCN threshold of \1/4\
acre.
We believe that prohibiting the use of NWP 29 with NWP 39 is
unnecessary and have not added it to the NWP. NWPs 29 and 39 are used
by different groups of landowners. NWP 29 can be used only by the
present or future occupants of the single family residence. NWP 39, on
the other hand, can be used by others, such as contract builders and
developers, to construct single family residences. Paragraph (d) states
that only single and complete projects can be authorized by NWP 39. If
the District Engineer establishes an exemption to the subdivision
provision of this NWP, NWP 29 may be used by an owner of a subdivided
parcel to construct a single family residence. If the construction of
another single family residence on the property has independent utility
and is not part of the previously authorized single and complete
project, then either NWP 29 or NWP 39 may be used to authorize that
single family residence, provided the authorized work results in
minimal adverse effects on the aquatic environment.
Other comments: A few commenters recommended that the Corps add a
definition of the term ``single and complete project'' to the NWP.
The Corps has defined the term ``single and complete project'' in
the regulations governing the NWP program (see 33 CFR 330.2(i)). This
definition applies to all of the NWPs, including the new NWPs proposed
today. This definition is repeated in the ``Definitions'' section of
the NWPs. For NWP 39, the acreage limit is based on the size of the
single and complete project (i.e., the footprint or areal extent of the
project). For the purposes of this NWP, a definition of ``project
area'' is included in the ``Definitions'' section. The concepts of
``single and complete project'' and ``project area'' must also be
considered in the context of the subdivision provision of this NWP. In
the July 1, 1998, Federal Register notice, we proposed General
Condition 16, entitled ``Subdivisions.'' The purpose of proposed
General Condition 16 was to define, for proposed NWPs A and B, the
single and complete project in terms of land parcels. Since proposed
NWP B was withdrawn, we have determined that a separate general
condition addressing subdivision of land is unnecessary since it would
only apply to NWP 39. Therefore, we have incorporated the text of
proposed General Condition 16 into the text of NWP 39, with some minor
changes. The term ``parcel'' is used in the subdivision provision of
NWP 39 to determine the aggregate total loss authorized by the NWP and
the appropriate NWP acreage limit. The project area may be the same as
the size of the parcel, but more than one single and complete project
may be built on a single parcel.
Multi-phase projects may be considered as separate single and
complete projects depending on whether or not one phase has independent
utility from another phase. If a phase of a multi-phase project has
independent utility from the other phases, then that independent phase
can be considered as a separate single and complete project and may be
eligible for the maximum acreage limit as determined by the project
area. Each phase of a project can be authorized with the maximum
acreage, provided each phase has independent utility from the other
phases and the work results only in minimal adverse effects on the
aquatic environment. Multiple parcels can also be combined for a larger
single project. The acreage limit for a combined larger project is
based on the indexed acreage limit for the project area.
Two commenters suggested that authorizing the expansion of projects
with this NWP is contradictory since this NWP is applicable only for
single and complete projects.
We disagree, since a project proponent can expand an existing
single and complete project provided the terms and limits of the NWP
are not exceeded and the adverse effects on the aquatic environment are
minimal. When evaluating such requests for NWP authorization, we add
the previously authorized impacts to the proposed impacts to determine
if the proposed expansion exceeds the acreage limit. If the PCN
threshold is exceeded, the applicant is required to notify the District
Engineer. The District Engineer reviews the PCN and determines if the
proposed work is authorized by NWP.
One commenter expressed concern that a subdivision developer could
construct the project, sell the lots, and the new owners would be
eligible for NWP authorization to do further work on their lots.
Another commenter stated that after a project is authorized by this
NWP, further development on the property should be prohibited.
We are proposing to add a subdivision provision to this NWP to
prevent piecemealing of projects that exceed the acreage limit. For
real estate subdivisions created or subdivided after October 5, 1984,
the aggregate loss of waters of the United States authorized by this
NWP cannot exceed the acreage limit based on the index in paragraph
(a). If the owners of the property want to do additional work that
would exceed the indexed acreage limit under paragraph (a), then they
must obtain another type of Corps permit, such as an individual permit
or a regional general permit, unless the additional work has
independent utility. We cannot prohibit additional activities on the
project site unless it is in the public interest to do so.
Three commenters believe that this NWP would authorize considerable
impacts to floodplains and riparian zones and should not authorize
activities in these areas, or should be limited to those activities
with unavoidable impacts that provide essential public services. One
commenter stated that a net gain in wetlands cannot be achieved if
residential, commercial, and institutional development activities are
authorized in wetlands.
In the October 14, 1998, Federal Register notice we requested
comments on limiting the use of the NWPs to authorize activities in the
100-year floodplain as mapped by the Federal Emergency Management
Agency (FEMA) on its Flood Insurance Rate Maps. In response to the
October 14, 1998, Federal Register notice, proposed General Condition
27 has been added to the NWPs. General Condition 27 prohibits the use
of NWP 39 to authorize permanent, above-grade fills in waters of the
United States within the 100-year floodplain.
Property owners are entitled to reasonable use of their property,
the Corps cannot prohibit all of these activities in wetlands. However,
NWP applicants are required to avoid and minimize adverse effects to
waters of the United States on-site to the maximum extent practicable
(see General Condition 19). For those unavoidable impacts, we can
require compensatory mitigation to ensure that the adverse effects on
the aquatic environment are minimal. In the July 1, 1998, Federal
Register notice, we cited data from the past use of NWP 26, which
demonstrates that during the period of May 1, 1997, through December
31, 1997, more than 3 acres of compensatory mitigation was required for
every acre of wetland lost as a result of residential, commercial, and
institutional development activities.
[[Page 39311]]
One commenter stated that the term ``measurably degrade'' in
paragraph (i) of the proposed NWP A needs to be defined. Another
commenter said that this term is unnecessary because any measurable
degradation of water quality would occur after the work is completed.
This commenter went on to say that this condition implies that if the
degradation is not measurable, then it is authorized by the NWP.
We have rewritten this condition (now in paragraph (g)) to replace
the term ``measurably degrade'' with language that is more consistent
with General Condition 9. The intent of this condition is to ensure
that the authorized work does not result in more than minimal
degradation of local water quality. Vegetated buffers adjacent to open
or flowing waters and wetlands and adequate stormwater management
facilities can minimize the adverse effects of the development on local
water quality.
One commenter stated that the preamble for this NWP in the July 1,
1998, Federal Register notice contains several conditions that are not
included in the text of the NWP and that these conditions should be
consistent with the final NWP.
In the preamble discussion of the proposed NWP, we did not include
conditions that were not incorporated into the text of the NWP itself.
In the preamble for the NWP, we reiterated some of the terms and
conditions of this NWP, with discussions of the intent and meaning of
those conditions.
A commenter stated that the eight months of data presented by the
Corps in the July 1, 1998, Federal Register notice is inadequate to
assess the adverse effects that may result from the use of this NWP.
The commenter recommended that at least one and a half years of data
should be used.
We have collected additional data since the July 1, 1998, Federal
Register notice for the use of NWP 26 for activities that could be
authorized by this NWP. We have collected this data for over a year and
will consider this data in our Environmental Assessment for NWP 39.
This data will be used to estimate the potential losses of waters of
the United States that will result from the use of this NWP. This data
will include the losses of waters of the United States authorized by
NWP 26, as well as the gains provided by compensatory mitigation.
One commenter requested that this NWP require the establishment and
maintenance of vegetated buffers adjacent to open waters and streams,
and that these vegetated buffers should be protected by deed
restrictions, conservation easements, or other legal means.
We concur with this comment, and have added a new paragraph (i) to
NWP 39 to require, to the maximum extent practicable, the establishment
and maintenance of vegetated buffers adjacent to open waters and
streams, if those types of waters of the United States are present on
the project site. Paragraph (i) also requires the protection of these
vegetated buffers by deed restrictions, conservation easements, or
other legal methods. For activities requiring notification, the
composition of the vegetated buffer, in terms of plant species, and the
appropriate width of the vegetated buffer, are determined by the
District Engineer. For activities authorized by this NWP that do not
require notification, the permittee should establish and maintain
vegetated buffers that are wide enough to protect water quality and are
comprised of native plant species. Division engineers can also
regionally condition this NWP to prescribe vegetated buffer
requirements for activities that do not require notification.
One commenter stated that this NWP would be overly burdensome to
builders. Another commenter believes that authorizing residential,
commercial, and institutional development activities in all non-tidal
waters of the United States will result in too much workload for Corps
districts.
The purpose of the proposed NWP is to efficiently authorize
residential, commercial, and institutional development activities that
result in minimal adverse effects on the aquatic environment. NWP 26
authorized many of these same activities in isolated waters and
headwaters. The proposed NWP authorizes these activities in all non-
tidal waters of the United States, excluding non-tidal wetlands
adjacent to tidal waters. Proposed General Condition 27 prohibits the
use of NWP 39 to authorize permanent, above-grade fills in waters of
the United States within the 100-year floodplain, which will further
limit the use of NWP 39 in non-tidal waters. It is our experience that
many builders design their projects to comply with the NWPs, rather
than construct larger projects that require individual permits.
Although the proposed NWP has additional conditions that were not
previously included with NWP 26, these conditions are intended to
reduce adverse effects on the aquatic environment. Developers should be
able to design their projects to comply with these conditions and
qualify for NWP authorization. Another important point to consider is
that NWPs are optional permits. If the permittee does not want to
comply with all of the terms and conditions of an NWP, then he or she
may request authorization through the individual permit process or
apply for authorization by a regional general permit, if such a general
permit is available.
This NWP is subject to proposed General Conditions 25, 26, and 27,
which will substantially reduce its applicability. General Condition 25
prohibits the use of this NWP to authorize discharges into designated
critical resource waters and wetlands adjacent to those waters. General
Condition 26 prohibits the use of this NWP to authorize discharges
resulting in the loss of greater than 1 acre of impaired waters,
including adjacent wetlands. NWP 39 activities resulting in the loss of
1 acre or less of impaired waters, including adjacent wetlands, are
prohibited unless prospective permittee demonstrates to the District
Engineer that the activity will not result in further impairment of the
waterbody. Notification to the District Engineer is required for all
discharges into impaired waters and their adjacent wetlands. General
Condition 27 prohibits the use of NWP 39 to authorize permanent, above-
grade fills in waters of the United States within the 100-year
floodplain.
We believe that the terms and conditions of the proposed new and
modified NWPs, especially the requirements of the three new NWP general
conditions, will result in a substantial increase in the number of
individual permits processed by our district offices. Districts will
use the proposed new and modified NWPs, with regional conditions, to
prioritize their workload in non-tidal waters. In response to a PCN,
district engineers can require special conditions on a case-by-case
basis to ensure that the adverse effects on the aquatic environment are
minimal or exercise discretionary authority to require an individual
permit for the work. The issuance of this NWP, as with any NWP,
provides for the use of discretionary authority when valuable or unique
aquatic areas may be affected by these activities. Proposed NWP A is
designated as NWP 39, with the modifications discussed above.
40. Agricultural Activities
In the July 1, 1998, Federal Register notice, we proposed to modify
this NWP, which originally authorized only the construction of
foundations or building pads for farm buildings in farmed wetlands, to
authorize discharges into non-tidal wetlands for the purposes of
increasing agricultural
[[Page 39312]]
production. As a result of the comments we received concerning this
NWP, we have substantially changed the proposed modification of NWP 40
to authorize the following activities: (1) Discharges into non-tidal
wetlands, excluding other waters of the United States (e.g., open or
flowing waters) and non-tidal wetlands adjacent to tidal waters,
conducted by participants in
U.S. Department of Agriculture (USDA) programs to increase agricultural
production, (2) discharges into non-tidal wetlands, excluding other
waters of the United States (e.g., open or flowing waters) and non-
tidal wetlands adjacent to tidal waters, conducted by agricultural
producers that are not participants in USDA programs to increase
agricultural production; (3) discharges into farmed wetlands for the
construction of building pads for farm buildings, and (4) the
relocation of existing serviceable drainage ditches constructed in non-
tidal streams. For activities authorized by paragraph (a) of this NWP,
the Natural Resources Conservation Service (NRCS) will determine if the
proposed work meets the terms and conditions of NWP 40, unless the
permittee also proposes to construct building pads for farm buildings
or relocate greater than 500 linear feet of existing serviceable
drainage ditches constructed in non-tidal streams. For discharges
resulting in the loss of greater than \1/4\ acre of non-tidal wetlands
by non-participants in USDA programs to increase agricultural
production, the construction of building pads for farm buildings, and/
or the relocation of greater than 500 linear feet of existing
serviceable drainage ditches constructed in non-tidal streams, the
Corps will determine if the proposed work is authorized by NWP 40.
Division engineers will not regionally condition paragraph (a) of this
NWP, to ensure that this NWP is consistently applied by NRCS and
agricultural producers across the country. These proposed changes are
discussed in more detail below.
General Comments: Many commenters objected to the proposed
modification and only a few supported the proposed modification of NWP
40. Of those who objected to the proposed modification, the reasons for
their objections include: (1) The NWP would authorize substantial
cumulative losses of wetlands, especially in the prairie pothole
region; (2) the use of the NWP would result in substantial degradation
of water quality; (3) the NWP does not comply with Section 404(e) of
the Clean Water Act; (4) the NWP delegates some of the Corps
responsibilities to NRCS, which lacks the resources to implement the
statutory requirements of the Clean Water Act; (5) the NWP is contrary
to Swampbuster; and (6) the proposed modification is contrary to the
goals of programs that restore and enhance wetlands, such as the
Conservation Reserve Program (CRP) and the Wetlands Reserve Program
(WRP).
This NWP complies with the requirements of Section 404(e) of the
Clean Water Act because it authorizes activities that are similar in
nature and will result in minimal adverse effects on the aquatic
environment. As with all other NWPs, district engineers will monitor
the use of NWP 40 on a watershed basis to determine if the use of NWP
40 and other NWPs results in more than minimal cumulative adverse
effects on the aquatic environment, including degradation of local
water quality. States, Tribes, and EPA will also make local
determinations for compliance with Section 401 of the Clean Water Act
and determine if activities authorized by NWP 40 will violate local or
State water quality standards. If the cumulative adverse effects within
a particular watershed are more than minimal, then the District
Engineer will suspend or revoke the use of the NWPs in accordance with
33 CFR Part 330.5. For activities in non-tidal wetlands by USDA program
participants to increase agricultural production, NRCS will review the
proposed work and determine if it is authorized by NWP 40. In these
cases, each landowner must submit a report to the District Engineer so
that the use of NWP 40, the losses of waters of the United States, and
compensatory mitigation can be monitored. For activities that require
notification to the District Engineer (i.e., discharges resulting in
the loss of greater than \1/4\ acre of non-tidal wetlands by non-
participants in USDA programs to increase agricultural production,
discharges into farmed wetlands for the construction of pads for farm
buildings, or the relocation of greater than 500 linear feet of
drainage ditches constructed in non-tidal streams), the District
Engineer will review the PCN and determine if the adverse effects on
the aquatic environment resulting from the proposed work will be
minimal. If the proposed work involves both activities in non-tidal
wetlands to increase agricultural production and either the relocation
of greater than 500 linear feet of drainage ditches constructed in non-
tidal streams or the construction of pads for farm buildings, the
landowner must submit a PCN to the Corps, and the District Engineer
will determine if the proposed work is authorized by NWP 40. For those
activities that require notification, the District Engineer will
determine if the proposed work will result in minimal adverse effects
on the aquatic environment. If the proposed work will result in more
than minimal adverse effects on the aquatic environment, discretionary
authority will be exercised and an individual permit will be required.
One of the goals of the proposed modification of this NWP is to
reduce duplication between the Corps and NRCS, reduce confusion, and
provide some regulatory relief to agricultural producers. This is one
of the goals of the Administration's wetlands plan, which is to make
the wetlands regulatory program fair, flexible, and effective. This NWP
does not delegate the Corps responsibilities under Section 404 of the
Clean Water Act to NRCS, but allows activities with minimal adverse
effects on the aquatic environment to proceed without duplicate review
by two Federal agencies. This NWP does not require NRCS to implement
the Clean Water Act. It merely addresses certain situations where the
Clean Water Act and Swampbuster have duplicate requirements. District
engineers will monitor the use of NWP 40 to assess the cumulative
adverse effects on the aquatic environment, through reports submitted
by landowners and those activities reviewed by the Corps on a case-by-
case basis.
This proposed modification of NWP 40 is not contrary to the CRP and
the WRP, which are voluntary programs. Participation in these programs
by agricultural producers is not mandatory. Although the CRP and WRP
are important conservation programs, it is important to note that
agricultural producers may need to alter their land to increase
production and remain competitive with other agricultural producers.
NWP 40 authorizes activities in non-tidal waters of the United States,
excluding non-tidal wetlands adjacent to tidal waters, to allow
agricultural producers to increase production, as long as those
activities have minimal adverse effects on the aquatic environment,
individually or cumulatively. Both the Corps and NRCS can require
compensatory mitigation to offset losses of waters of the United States
authorized by this NWP to ensure that the adverse effects on the
aquatic environment are minimal. It is important to note that draining
and filling wetlands to increase agricultural production is often
reversible. Agricultural lands that were previously wetlands are often
the easiest to restore because they require less effort and expense to
restore than wetlands that
[[Page 39313]]
were filled to create residential subdivisions or commercial
facilities. Although this NWP may be used to fill a particular area to
increase agricultural production, that area may be restored at a later
time.
A commenter stated that the proposed modification is too
restrictive and should be equitable with other NWPs, because
agricultural activities and other more potentially destructive
activities, such as the construction of residential, commercial, and
institutional developments, should be held to the same standard. One
commenter requested that the preamble to the NWP state that the use of
the NWP will help achieve the goal of the Clean Water Action Plan of
``no net loss'' and ensure consistency with the Federal Agriculture
Improvement and Reform Act of 1996, which exempts wetland conversions
from the Swampbuster provisions of the Food Security Act as long as
wetland functions, values, and acreage are fully offset. One commenter
recommended modifying the NWP to be consistent with the limits
associated with the minimal effects criteria regionally established
under the Farm Bill. A number of commenters believe that the proposed
modification of NWP 40 is unnecessary because ongoing farm operations
in farmed wetlands are exempt under Section 404(f) of the Clean Water
Act.
We agree that the modifications to NWP 40 proposed in the July 1,
1998, Federal Register notice placed greater restrictions on
agricultural producers than proposed NWP A (now designated as NWP 39)
did on residential, commercial, and institutional developers. We have
attempted to make NWPs 39 and 40 more equitable in terms of applicable
waters and determining what constitutes a single and complete project
for these NWPs. Both NWPs 39 and 40 authorize activities in non-tidal
waters of the United States, excluding non-tidal wetlands adjacent to
tidal waters. We have retained the separate provisions for playas,
prairie potholes, and vernal pools from NWP 40, with an indexed acreage
limit and a maximum limit of 1 acre, which is achieved for farm tracts
90 acres or greater in size. For proposed NWP 39, the single and
complete project will be based on project area. For the proposed
modification of NWP 40, a single and complete project will be based on
farm tract size. Farm tracts will be identified by the Farm Service
Agency. The definition of the term ``farm'' based on reporting to the
Internal Revenue Service has been removed. In the ``Definitions''
section of the NWPs, the term ``farm'' has been replaced with ``farm
tract.'' The definition of the term ``farm tract'' has been taken from
the Farm Service Agency regulations at 7 CFR Part 718.2.
In accordance with the provisions of the Food Security Act,
compensatory mitigation will be required for activities authorized by
paragraph (a) of this NWP to fully offset losses of non-tidal wetlands.
District engineers will determine on a case-by-case basis if
compensatory mitigation is necessary to offset losses of waters of the
United States resulting from activities authorized by paragraphs (b),
(c), and (d) of this NWP to ensure that those activities result in
minimal adverse effects on the aquatic environment. NRCS and the Corps,
in cooperation with EPA, FWS, and NMFS, will develop joint compensatory
mitigation guidance to provide consistency in compensatory mitigation
requirements necessary for the implementation of NWP 40. Since the
proposed modification of NWP 40 is intended to have national
applicability, it is impractical to modify the NWP to be consistent
with local minimal effects criteria established regionally under the
Farm Bill. This NWP is applicable in all non-tidal wetlands, not just
farmed wetlands. The conversion of waters of the United States to
another use is not exempt under Section 404(f) of the Clean Water Act,
which makes these modifications to NWP 40 necessary to satisfy the
requirements of Section 404.
Activities Authorized by NWP 40: One commenter supported the intent
of the proposed modification, but stated that the additional activities
should be authorized by another NWP, not by modifying the existing NWP
40. Another commenter stated that a separate NWP should be issued to
authorize the installation of drainage tiles and drainage ditches, and
that the structure of this new NWP should be more like the proposed NWP
for residential, commercial, and institutional activities. A commenter
suggested that NWP 39 should be used instead of NWP 40 to authorize
discharges in waters of the United States to increase agricultural
production. One commenter recommended limiting the NWP to maintaining
farm acreage, not expanding productive farm area. Two commenters
requested the removal of mechanized landclearing from the list of
activities authorized by the NWP, stating that only activities in
cropland should be authorized by the NWP. Two commenters stated that
mechanized landclearing should be considered exempt under Section
404(f)(1) of the Clean Water Act and not included in the NWP. One
commenter stated that the proposed modification to NWP 40 illegally
brings two Farm Bill exemptions into the Federal wetlands program,
namely ``categorical minimal effects'' and ``minimal effects
mitigation.''
We disagree that there should be a separate NWP for activities that
increase agricultural production. We believe that it is more
appropriate to modify NWP 40, which previously authorized only the
construction of building pads and foundations for farm buildings in
farmed wetlands. The purpose of the proposed modification of NWP 40 is
to authorize all activities for increasing agricultural production and
constructing farm buildings. By including all of these activities in a
single NWP, there will be less confusion for the regulated public and
district engineers will be better able to assess the adverse effects on
the aquatic environment for single and complete projects. We are
proposing to make the modifications to NWP 40 similar to the proposed
NWP 39 by utilizing indexed acreage limits and by making both NWPs
applicable to non-tidal wetlands, excluding non-tidal wetlands adjacent
to tidal waters. The indexed acreage limit for NWP is applicable only
for discharges resulting in the loss of playas, prairie potholes, and
vernal pools, with a maximum acreage limit of 1 acre. We are proposing
to utilize a simple 2 acre limit for discharges into other types of
non-tidal wetlands to increase agricultural production. The proposed
modification of NWP 40 has a smaller maximum acreage limit (i.e., 2
acres) than NWP 39 (i.e., 3 acres). The lower maximum acreage limit for
NWP 40 is necessary to ensure that the NWP authorizes only activities
with minimal adverse effects on the aquatic environment, because
district engineers will not receive notifications for many activities
authorized by this NWP. Division and district engineers cannot impose
regional or case-specific conditions on paragraph (a) of this NWP, so
that NRCS can implement this part of NWP 40 consistently throughout the
country. In addition, district engineers cannot revoke authorizations
for activities authorized by paragraph (a) of NWP 40 on a case-by-case
basis, but division engineers can revoke the provisions of paragraph
(a) of NWP 40 within a state, geographic region, or a particular
waterbody. However, regional conditions can be added to paragraphs (b),
(c), and (d) of NWP 40, since the Corps is responsible for reviewing
these activities. We have changed the applicable waters for the
proposed modification of NWP 40 to be consistent
[[Page 39314]]
with most of the new NWPs. Proposed NWP 39 cannot be used to increase
agricultural production instead of NWP 40, because NWP 39 specifically
authorizes only building pads and attendant features for residential,
commercial, and institutional developments. Activities that increase
agricultural production are not included in NWP 39, although the
construction of a farm house used as a residence on a farm may be
authorized by NWP 39.
Mechanized landclearing may result in a discharge of dredged or
fill material into waters of the United States and require a Section
404 permit. We disagree that the NWP should be limited to areas
currently used as cropland. It would be inequitable to agricultural
producers to limit use of the NWP only to those areas currently used
for agricultural production. Mechanized landclearing is not exempt
under Section 404(f)(1) if it converts a water of the United States
into a use to which it was not previously subject, such as the
mechanized landclearing of a forested wetland to convert it into
cropland (see Section 404(f)(2) of the Clean Water Act).
Categorical minimal effect determinations and minimal effects
mitigation are provisions of the 1996 Farm Bill and 1985 Food Security
Act. The categorical minimal effects determination is not an exemption
from the permit requirements of Section 404 of the Clean Water Act. It
merely allows the landowner to maintain USDA farm program eligibility
for activities that convert a wetland to increase agricultural
production, provided the activity has minimal effects on the
hydrological and biological functions of the wetlands in the vicinity.
One commenter requested clarification of the NWP to state that it
authorizes activities for the purposes of improving production on
existing agricultural land, because the commenter believes that the
proposed wording of the NWP allows conversion of land not previously
used for agricultural purposes. Another commenter recommended that, in
addition to activities regulated under the National Food Security Act
Manual (NFSAM), those activities considered exempt under NFSAM (i.e.,
where the land is not currently in agricultural production) such as the
construction of grassed waterways, storage facilities, and impoundments
should be authorized by the NWP. One commenter recommended that the NWP
authorize the construction of farm ponds, when they are subject to the
recapture provision of Section 404(f)(2) and are not exempt from the
Clean Water Act.
The proposed modification of NWP 40 authorizes discharges of
dredged or fill material into non-tidal waters of the United States,
excluding non-tidal wetlands adjacent to tidal waters, for the purpose
of increasing agricultural production, including areas not currently
used for agricultural production. This NWP authorizes the construction
of grassed waterways, storage facilities, and impoundments in non-tidal
wetlands, provided their purpose is to increase agricultural
production. In certain circumstances, the construction of farm ponds is
exempt from Section 404 permit requirements. The proposed modification
of this NWP authorizes the construction or expansion of farm ponds used
for agricultural purposes (e.g., irrigation ponds) that are not
eligible for the Section 404(f) exemption, if the farm ponds are
constructed in non-tidal wetlands, excluding non-tidal wetlands
adjacent to tidal waters, and do not involve discharges of dredged or
fill material into stream beds or other open waters. The only activity
authorized by this NWP in open waters is the relocation of non-tidal
streams that have been channelized as drainage ditches. The
construction of farm ponds in stream beds or the construction of ponds
for purposes other than increasing agricultural production may be
authorized by other NWPs, a regional general permit, or an individual
permit.
Scope of the NWP: A number of commenters recommended limiting the
NWP only to wetlands that are currently frequently cropped. Two
commenters suggested that the NWP should authorize discharges only in
isolated wetlands and should not authorize draining of wetlands.
Several commenters stated that agricultural activities in naturally
vegetated playas, prairie potholes, and vernal pools should not be
included in the NWP.
Limiting the scope of applicable waters of the proposed
modification of this NWP only to frequently cropped or farmed wetlands
would be inequitable to farmers, when compared to the applicable waters
for NWP 39. District engineers will monitor the use of this NWP to
ensure that it authorizes only those agricultural activities in non-
tidal waters of the United States, excluding non-tidal wetlands
adjacent to tidal waters, that result in minimal cumulative adverse
effects on the aquatic environment. District engineers will receive
notification for discharges into non-tidal wetlands by non-participants
in USDA programs if the discharge results in the loss of greater than
1/4 acre of non-tidal wetlands, the construction of building pads for
farm buildings, and/or the relocation of greater than 500 linear feet
of existing serviceable drainage ditches constructed in non-tidal
streams. These notifications will be reviewed by District Engineers to
ensure that the proposed work will result in minimal adverse effects on
the aquatic environment. We have not removed the specific provisions
relating to playas, prairie potholes, and vernal pools to ensure that
discharges into those types of non-tidal wetlands do not result in more
than minimal adverse effects on the aquatic environment. To ensure that
the provisions for playas, prairie potholes, and vernal pools are
implemented accurately for those wetland types, we are proposing
definitions for these terms in the ``Definitions'' section of the NWPs.
The proposed definitions are based on geographic, hydrological, and
vegetation characteristics. The proposed definitions were derived from
information from technical sources on identifying and delineating
wetlands. We are proposing to modify the applicable scope of waters for
NWP 40 from all non-tidal waters of the United States, as proposed in
the July 1, 1998, Federal Register notice, to non-tidal waters,
excluding non-tidal wetlands adjacent to tidal waters, to make it
consistent with most of the new NWPs.
Acreage limits: Comments on acreage limits for the proposed
modification of this NWP are divided into two categories. One category
addresses the basis for determining acreage limits for a single and
complete project (i.e., whether NWP 40 should apply to one entire farm
or to a single farm tract). The other category of comments addresses
the maximum acreage loss authorized by this NWP.
Two commenters favored the use of the term ``farm'' to define the
single and complete project for the NWP. One commenter objected to the
use of ``farm'' in the NWP, stating that a person who owns more than
one farm could use the NWP at each farm for the maximum acreage limit.
One commenter stated that the proposed definition of ``farm'' is
confusing and would unfairly restrict the use of NWP 40. A few
commenters stated that acreage limits should not be linked to farm
size. One of these commenters objected to basing the acreage limit on
the Internal Revenue Service's definition of a ``farm'' because NRCS
personnel would have to review copies of the landowner's tax returns to
verify the number of tracts with the farm. This commenter recommended
that the Corps determine single and complete projects for NWP 40 based
on ``farm tracts'' as identified by the Farm Service Agency. Other
commenters
[[Page 39315]]
suggested applying the acreage limit to the individual USDA field
number or the individual parcel. One commenter requested that the
aggregate acreage limit apply only to the property, not the farmer. One
commenter advocated the use of ``farm tracts'' for this NWP because the
farm tract, not the farm, is the basic unit of land ownership. This
commenter stated that many farms consist of different tracts
geographically separated from each other. Farm tracts remain constant
in size and configuration, but may be sold, leased, or traded between
farms. A couple of commenters opposed the use of ``farm tracts'' to
determine the acreage limit of NWP 40. One of these commenters reasoned
that the use of farm tracts would result in substantial losses of
wetlands because of multiple use of the NWP by a large farm operation
that owns many farm tracts. One commenter stated that impacts to waters
of the United States are not dependent on farm size.
One of the objectives of the Administration is to make the Federal
wetlands programs fair, flexible, and effective. Basing the single and
complete project on Internal Revenue Service reporting of farms for the
proposed modification of NWP 40 results in unfair restrictions on
agricultural producers compared to residential, commercial, and
institutional developers. Developers often own more than one parcel of
land and may have several development projects occurring at the same
time. The Corps considers each development a single and complete
project, as long as each development has independent utility. Each
development can qualify for separate NWP authorization even though the
land may be owned by the same developer, if the proposed work meets the
terms and conditions of the NWP and if the individual or cumulative
adverse effects on the aquatic environment are minimal. We are
proposing to base the single and complete project and indexed acreage
limit of NWP 40 on farm tract size, instead of farms. The use of farm
tracts for NWP 40 provides equitable treatment to agricultural
producers, and each farm tract would be considered a single and
complete project for the purposes of the NWPs.
Several commenters stated that the proposed acreage limits are too
high. Suggested acreage limits were 1, \1/3\, \1/4\, and \1/10\ acre. A
few commenters suggested higher acreage limits. Several commenters
stated that the proposed 3 acre limit is adequate. In the July 1, 1998,
Federal Register notice, we requested comments on the use of a simple
acreage limit versus a sliding scale for this NWP. Most commenters
opposed the use of a sliding scale or indexing to determine the acreage
limit for this NWP. One of these commenters stated that the indexing
scheme proposed in the July 1, 1998, Federal Register notice is too
burdensome, confusing, and without ecological justification. Two
commenters favored the use of a sliding scale, but recommended basing
the sliding scale on a percentage, either as 5% of the wetlands on a
farm regardless of farm size or 2% of the project size, if the project
is greater than 5 acres in size.
A number of commenters stated that the acreage limit for NWP 40
should be the same as for the NWP for residential, commercial, and
institutional development activities (i.e., NWP 39). One of these
commenters stated that the acreage limits proposed in the July 1, 1998,
Federal Register notice are inequitable compared to the acreage limits
developers are subject to in NWP 39, particularly to farmers who own
smaller farms. This commenter also said that using acreage limits and
farm size as a substitute to determine minimal adverse effects has not
been applied in a consistent manner between similar activities, such as
development or agricultural projects.
Based on our review of comments received in response to the July 1,
1998, Federal Register notice, and to provide agricultural producers
and residential, commercial, and institutional developers with
equitable NWPs, we are proposing to utilize a simple 2-acre limit for
discharges into non-tidal wetlands and an indexed acreage limit for
discharges into playas, prairie potholes, and vernal pools that are
authorized by paragraphs (a) (for USDA program participants) or (b)
(for non-participants in USDA programs) of NWP 40. The indexed acreage
limit for playas, prairie potholes, and vernal pools has a maximum
limit of 1 acre per farm tract. A lower maximum acreage limit (i.e., 2
acres per farm tract) was selected to ensure that the NWP authorizes
activities only with minimal adverse effects on the aquatic environment
because preconstruction notification to the District Engineer is not
required for activities authorized by paragraph (a) of this NWP (unless
the project proponent is also requesting authorization for the
construction of foundations for farm buildings or the relocation of
greater than 500 linear feet of drainage ditches constructed in non-
tidal streams). We are proposing a 2-acre limit for discharges into
non-tidal wetlands (except for playas, prairie potholes, and vernal
pools) to increase production. For the proposed modification of NWP 40,
the indexed acreage limit for discharges into playas, prairie potholes,
and vernal pools is based upon 1% percent of the farm tract size, with
a base limit of \1/10\ acre. The maximum acreage limit of 1 acre is
achieved for farm tracts 90 acres or greater in size. We believe that
the formula for the indexed acreage limit will be easy to use. An
indexed acreage limit helps encourage avoidance and minimization of
losses of waters of the United States.
One commenter opposed the use of an aggregate acreage limit for NWP
40, stating that the requirement for mitigation replaces the need for
an acreage limit for activities authorized by the NWP. A couple of
commenters said that the Corps cannot enforce the acreage limits of
this NWP because land is reapportioned among farm tracts on an annual
basis and the Corps does not have access to the farm tract history
necessary to ensure compliance with the acreage limits.
The acreage limit for NWP 40, as for all other NWPs, is based on a
national determination that the NWP will authorize most activities that
have minimal adverse effects on the aquatic environment, individually
or cumulatively. For certain activities, preconstruction notification
is required to allow district engineers to review these activities on a
case-by-case basis and determine if they will result in minimal adverse
effects on the aquatic environment, individually or cumulatively.
Compensatory mitigation cannot be used to increase the acreage limit
for an NWP, but discharges of dredged or fill material into waters of
the United States to construct compensatory mitigation are not included
in the calculation of acreage loss of waters of the United States to
determine if the single and complete project exceeds the acreage limit
of NWP 40. It is our understanding that farm tract designations change
only when the land is subject to a real estate transaction, such as
when a farmer subdivides a farm tract to sell a part of that farm tract
to another person.
Paragraph (a) of the proposed NWP 40 modification published in the
July 1, 1998, Federal Register notice authorized activities that
qualify for a minimal effects exemption under the Food Security Act and
National Food Security Act Manual, provided the discharge does not
cause the loss of greater than 1 acre of non-tidal wetlands or greater
than \1/3\ acre of playas, prairie potholes, and vernal pools. One
commenter supported the inclusion of minimal effects determinations in
NWP 40. Two commenters opposed this
[[Page 39316]]
provision of the NWP. One commenter stated that the farm owner should
not have to obtain an authorization from both the Corps and NRCS for
work in wetlands. This commenter believes that the Corps should make
the minimal effects determination and that USDA program participants
should get an NWP authorization before they can get a minimal effects
determination. Another commenter requested that the minimal effects
determination should include non-participants in USDA programs. One
commenter stated that it is inappropriate for the Corps to apply
acreage limits under this part of the NWP to activities that receive
minimal effects determinations. Another commenter recommended that this
portion of the NWP should be removed and replaced with regional
conditions. One commenter believes that NRCS does not currently monitor
the indirect or cumulative adverse effects of projects that are
eligible for minimal effects determinations, and that this is contrary
to the Clean Water Act's general permit criteria. This commenter stated
that the minimal effects determination does not assess the value for a
watershed. Three commenters recommended that NRCS should receive
concurrence from the FWS and/or NMFS prior to issuing a minimal effects
determination.
We are proposing to modify this NWP to authorize discharges in non-
tidal wetlands, excluding non-tidal wetlands adjacent to tidal waters,
by USDA program participants and non-participants in USDA programs to
increase agricultural production on a farm tract. For USDA program
participants, the permittee must obtain an exemption or minimal effects
with mitigation determination from NRCS and implement an NRCS-approved
compensatory mitigation plan that fully offsets wetland losses. For
non-participants in USDA programs, notification to the District
Engineer is required for discharges resulting in the loss of greater
than \1/4\ acre of non-tidal wetlands to increase agricultural
production. The District Engineer will determine on a case-by-case
basis if the activities authorized by paragraph (b) will result in
minimal adverse effects on the aquatic environment. Compensatory
mitigation will normally be required for activities that require
notification to ensure that they result in minimal adverse effects on
the aquatic environment. The 2 acre limit for discharges into non-tidal
wetlands and the indexed acreage limit for discharges into playas,
prairie potholes, and vernal pools will ensure that the NWP authorizes
only activities with minimal adverse effects on the aquatic
environment. District engineers will monitor the use of this NWP
through postconstruction reports and preconstruction notifications
submitted to the District Engineer. If the activities authorized by NWP
40 result in more than minimal cumulative adverse effects on the
aquatic environment, division engineers can suspend the use of this NWP
in the watershed or Corps district.
Paragraph (b) of the proposed modification of NWP 40 published in
the July 1, 1998, Federal Register authorized activities in non-tidal
wetlands, except for naturally vegetated playas, prairie potholes, and
vernal pools for the purposes of increasing agricultural production.
Two commenters recommended using a simple acreage limit, but two other
commenters favored using a sliding scale. Two commenters opposed the
proposed 3 acre limit, because they believe it is too high. One
commenter stated that the proposed indexed acreage limit was too low,
especially if mitigation is required. One commenter recommended a 1
acre limit and another commenter recommended a \1/3\ acre limit. One
commenter recommended basing the acreage limit on a sliding scale of 2%
of the entire property, with a maximum of 3 acres. One commenter stated
that this part of the NWP should apply to all non-tidal wetlands, with
no exclusions for playas, prairie potholes, and vernal pools.
We are proposing to modify NWP 40 to authorize agricultural
activities in all non-tidal wetlands, excluding non-tidal wetlands
adjacent to tidal waters. For discharges into non-tidal wetlands to
increase production, we are proposing a simple acreage limit of 2 acres
and an indexed acreage limit for discharges into playas, prairie
potholes, and vernal pools. The indexed acreage limit for discharges
into playas, prairie potholes, and vernal pools will have a maximum
acreage limit of 1 acre. The acreage limit for the proposed
modification of this NWP will be based on farm tracts.
Paragraph (c) of the proposed modification of NWP 40 published in
the July 1, 1998, Federal Register authorized activities in naturally
vegetated playas, prairie potholes, and vernal pools for the purposes
of increasing agricultural production. Two commenters concurred with
the proposed acreage limit of 1 acre. One commenter objected to the
lower acreage limit for activities in playas, prairie potholes, and
vernal pools. One commenter stated that this portion of the NWP should
apply only to frequently cropped playas, prairie potholes, and vernal
pools and that naturally-vegetated wetlands should not be included in
the NWP. Another commenter recommended including pocosins in this
paragraph of the NWP. A commenter stated that the proposed 1 acre limit
is too high. One commenter believes that a higher acreage limit should
be used because the permittee is required to provide mitigation. Two
commenters recommended using a simple acreage limit instead of a
sliding scale acreage limit.
As previously discussed, we are proposing to modify NWP 40 to
include playas, prairie potholes, and vernal pools with an indexed
acreage limit.
Construction of Farm Buildings: Paragraph (d) of the proposed
modification of NWP 40 contained the original provisions of NWP 40 and
authorized discharges into wetlands, excluding playas, prairie
potholes, and vernal pools, that were in agricultural production prior
to December 23, 1985, for the construction of building pads for farm
buildings, with an acreage limit of 1 acre.
One commenter recommended increasing the acreage limit to 2 acres.
Another commenter recommended an acreage limit of 1/4 acre, to be
consistent with the acreage limit proposed for NWP 29 in the July 1,
1998, Federal Register notice. One commenter stated that non-
agricultural buildings such as houses should not be authorized by this
NWP. Three commenters stated that the December 23, 1985, date should be
removed from this part of the NWP, based on the rationale that any area
under agricultural production prior to that date should not be
considered a jurisdictional wetland and subject to the limitations of
the NWP.
We are proposing to remove the exclusion for playas, prairie
potholes, and vernal pools from this part of NWP 40. This provision is
now in paragraph (c) of the proposed modification of this NWP, with a
requirement that the permittee notify the District Engineer in
accordance with General Condition 13. We are proposing to maintain the
1 acre limit for this activity. One acre is adequate for the
construction of most farm buildings. This acreage limit need not be
consistent with the acreage limit of NWP 29, since farm buildings are
constructed for the operation of the farm, not for residences. Farm
buildings, such as barns, usually must be larger than houses to fulfill
their purposes. In addition, this paragraph of NWP 40 encompasses a
much smaller geographic scope than the other provisions of NWP 40,
since it is limited to farmed wetlands. Paragraph (c) of NWP 40
authorizes discharges only in farmed
[[Page 39317]]
wetlands for the construction of building pads for farm buildings,
whereas NWP 29 authorizes discharges of dredged or fill material into
all non-tidal wetlands. This NWP does not authorize the construction of
non-agricultural buildings, such as residences. We do not agree that
the December 23, 1985, date should be removed from the NWP because
there are jurisdictional wetlands that have been used for agricultural
production since that date. Although they are considered farmed
wetlands, they are still waters of the United States and subject to
Clean Water Act Section 404 permit requirements.
Drainage Ditch Relocations: Paragraph (e) of the proposed NWP 40
modification published in the July 1, 1998, Federal Register notice
authorized the relocation of existing serviceable drainage ditches and
previously substantially manipulated intermittent and small perennial
streams. Two commenters supported the proposed provision of the NWP.
Several commenters opposed this provision. Two commenters stated that
the relocation of streams or drainage ditches may result in substantial
adverse effects on the aquatic environment. One commenter recommended
modification of this provision to limit the work only to the relocation
of currently serviceable drainage ditches or manipulated streams that
are not so degraded as to require reconstruction. Another commenter
stated that it is unclear which other waters of the United States are
included in this paragraph of the NWP. Two commenters suggested that
this condition should not apply to perennial streams. Two commenters
requested that the Corps define the term ``substantially manipulated
stream.''
The purpose of this provision of the proposed modification of NWP
40 is to authorize relocation of drainage ditches constructed in waters
of the United States to increase agricultural production. Based on
comments received in response to our proposed definition of the term
``drainage ditch,'' and in an effort to clarify this provision of NWP
40, we are changing the language of this paragraph and designating it
paragraph (d). Paragraph (d) of the proposed modification of NWP 40
authorizes discharges of dredged or fill material to relocate existing
serviceable drainage ditches constructed in non-tidal streams. The
relocation of existing serviceable drainage ditches constructed in non-
tidal wetlands can be authorized by paragraphs (a) or (b) of this NWP.
Notification to the District Engineer is required for the relocation of
greater than 500 linear feet of drainage ditches constructed in non-
tidal streams. Since drainage ditches can be constructed in wetlands or
by channelizing perennial, intermittent, or ephemeral stream beds to
improve drainage, we have removed the phrase ``* * * and previously
substantially manipulated intermittent and perennial streams'' and
replaced it with ``* * * constructed in non-tidal streams'' to reflect
the fact that drainage ditches may have been constructed in streams. As
a result of this change, it is unnecessary to provide a definition for
the term ``substantially manipulated stream.'' Relocation of drainage
ditches constructed in uplands does not require a Section 404 permit
because these ditches are not waters of the United States, except in
certain circumstances.
We do not believe that the relocation of existing serviceable
drainage ditches constructed in waters of the United States will result
in more than minimal adverse effects on the aquatic environment. The
term ``existing serviceable drainage ditches'' adequately describes the
limitation of paragraph (d) to only those drainage ditches that do not
require reconstruction due to abandonment and neglect.
One commenter asked why this provision was included in the NWP,
since ditch maintenance is exempt under Section 404(f) of the Clean
Water Act. One commenter stated that other NWPs should be used to
authorize work in rivers and streams on agricultural lands. One
commenter said that a provision should be added to this paragraph
requiring the land to remain in agricultural use if the ditches are
maintained. Another commenter recommended adding a 500 linear foot
limit to this part of the NWP.
The Section 404(f) exemption for drainage ditch maintenance does
not apply to the relocation of drainage ditches. To qualify for the
exemption, the landowner cannot change the location of the drainage
ditch or modify it beyond the original design dimensions and
configuration. Since the relocation of drainage ditches constructed in
non-tidal streams can increase agricultural production, it would be
inappropriate to require the use of other NWPs to authorize this
activity. Other activities in waters of the United States on
agricultural lands, such as bank stabilization, may be authorized by
other NWPs, regional general permits, or individual permits. We cannot
add a provision to paragraph (d) requiring the landowner to keep the
land in agricultural use if the ditches are relocated because such a
provision is beyond the Corps regulatory authority and unenforceable.
We do not believe that is necessary to impose a 500 linear foot limit
on relocating drainage ditches constructed in waters of the United
States because district engineers will receive a PCN for the relocation
of greater than 500 linear feet of drainage ditches constructed in non-
tidal streams to determine if the proposed work will result in minimal
adverse effects on the aquatic environment and can qualify for
authorization under this NWP.
Notification: We proposed requiring notification for activities
that cause the loss of greater than \1/3\ acre of non-tidal wetlands or
the relocation of greater than 500 linear feet of drainage ditches and
previously substantially manipulated intermittent and small perennial
streams. One commenter recommended a 1 acre PCN threshold. Another
commenter recommended a \1/4\ acre PCN threshold, with agency
coordination. One commenter requested that PCNs should be required for
all activities authorized by this NWP. Another commenter stated that
the PCN requirements for NWP 40 should be the same as for NWP 39. For
ditch and stream relocations, recommended PCN thresholds included 150,
200, and 3,000 linear feet. One commenter requested agency coordination
for all wetland losses of greater than \1/3\ acre and all ditch and
stream relocations.
Notification to the District Engineer is required for discharges by
non-participants in USDA programs to increase agricultural production
that result in the loss of greater than \1/4\ acre of non-tidal
wetlands, the construction of building pads for farm buildings, and for
the relocation of greater than 500 linear feet of drainage ditches
constructed in non-tidal streams. For USDA program participants,
notification to the District Engineer is required if the proposed work
involves activities in non-tidal wetlands and the relocation of greater
than 500 linear feet of drainage ditches constructed in non-tidal
streams or the construction of building pads for farm buildings, agency
coordination will be conducted for activities requiring notification to
the District Engineer if the proposed work results in the loss of
greater than 1 acre of waters of the United States.
Mitigation: Paragraphs (b) and (c) of the proposed modification of
NWP 40 published in the July 1, 1998, Federal Register notice required
submission of a mitigation plan to fully offset wetland losses. One
commenter stated that the Corps should not require avoidance and
minimization for potential losses of frequently cropped, previously
altered farmed wetlands, because mitigation sequencing is not required
under the
[[Page 39318]]
Farm Bill. In other words, the 404(b)(1) guidelines are not applicable
to farmed wetland conversions and compensatory mitigation will be
required by NRCS. A few commenters recommended that both the Corps and
NRCS approve the required compensatory mitigation. Two commenters
stated that the required compensatory mitigation should be reviewed by
all agencies, not just NRCS. One commenter requested that any
compensatory mitigation requirements for this NWP be the same as for
all Corps permits.
Although mitigation sequencing may not be required under the 1996
Farm Bill, discharges of dredged or fill material into waters of the
United States, including farmed wetlands, require a Section 404 permit,
which may be authorized by NWPs. General Condition 19 of the NWPs
requires the permittee to avoid and minimize impacts to waters of the
United States on-site to the maximum extent practicable. Compensatory
mitigation is required for all activities authorized by paragraph (a)
of this NWP. For activities requiring notification to the District
Engineer, compensatory mitigation may be required to ensure that
activities authorized by this NWP result in minimal adverse effects on
the aquatic environment. For the purposes of this NWP, compensatory
mitigation used to satisfy the requirements of NRCS will be accepted by
the Corps. To provide consistency for compensatory mitigation
requirements and reduce confusion, NRCS and the Corps will develop, in
cooperation with EPA, FWS and NMFS, joint mitigation guidance for this
NWP.
One commenter expressed concern that compensatory mitigation
requirements will decrease the available amount of farm land and
requested that the Corps annually report the amount of farm land used
as compensatory mitigation. Two commenters supported the requirement to
fully offset losses of waters, but stated that the NWP should require a
minimum 1:1 replacement ratio. Another commenter said that compensatory
mitigation should be limited to the enhancement, restoration, and
creation of aquatic resources and exclude preservation, because the
Farm Bill does not authorize preservation and NRCS policy does not
allow preservation for Swampbuster purposes.
We do not believe that the compensatory mitigation requirements of
this NWP will substantially decrease the amount of available farm land
because landowners have the option of avoiding impacts to waters of the
United States, which would decrease the amount of land needed for
wetland restoration and creation. In addition, compensatory mitigation
is often conducted on farm land with marginal productivity, due to soil
characteristics or wetness, that has the highest potential for wetland
restoration. We disagree that preservation should be prohibited as a
means of providing compensatory mitigation for activities that require
notification to the Corps. Preservation is an extremely important
method for protecting rare and high value waters of the United States
from future losses.
Use of NWP 40 with Other NWPs: One commenter stated that the
portion of the preamble to the proposed modification of NWP 40
published in the July 1, 1998, Federal Register that prohibits the
future use of NWP A (i.e., NWP 39) if the farm is developed by the
farmer or sold, should be included in the text of NWP 40. However, this
commenter questions the Corps ability to monitor compliance with this
provision. Another commenter suggested that NWP 40 should not be used
with NWPs 39 or 44. One commenter recommended a 3 acre stacking limit.
Another commenter suggested that any use of this NWP with other NWPs
should be subject to the lowest acreage limit allowed for any of the
NWPs.
We have incorporated into NWPs 39 and 40 the provision addressing
the future use of NWP 39 on the farm if that farm or portions of the
farm are converted to residential, commercial, or institutional
developments by the farmer or sold to a developer. The indexed acreage
limit of paragraph (a) of NWP 39 cannot be exceeded, based on the
project area and the subdivision provision of NWP 39. The Corps will
rely on its records to track the use of NWPs 39 and 40 for a particular
parcel of land. The use of more than one NWP for a single and complete
project is addressed in the proposed modification of General Condition
15.
Other Comments: A number of commenters objected to allowing the use
of NWP 40 on a farm every 5 years, because it would result in
substantial cumulative losses of waters. One commenter recommended that
the NWP should be used only once per project and if the land is no
longer used for agricultural production the fill should be removed and
the new use repermitted. Several commenters believe that NWP 40 should
be subject to the same conditions as the NWP for residential,
commercial, and institutional development activities and the NWP for
mining activities. One commenter recommended including a reference to
the Memorandum of Agreement between the Corps and NRCS concerning
wetland delineations. One commenter objected to this NWP, stating that
it does not address indirect impacts to waters caused by converting
wetlands to agricultural use and cited water quality problems that can
be caused by ditching activities. Another commenter recommended that
the NWP include a requirement for vegetated buffers around streams on
farm land, to filter out pollutants and nutrients and prevent erosion.
We have removed the provision allowing the use of NWP 40 on a farm
every five years, to make it more consistent with other NWPs.
Restricting the use of NWP 40 to a single and complete farm operation
will avoid substantial losses that could occur due to repeated use of
this NWP every 5 years. We disagree with the recommendation that land
no longer in agricultural use should be restored and any new uses
repermitted. Such a requirement is impractical, places unnecessary
burdens on the regulated public and the Corps, and provides no benefits
to the aquatic environment. Former wetlands on agricultural lands may
be used for aquatic habitat restoration, including mitigation banks and
in lieu fee programs.
We have attempted to provide consistency between proposed NWPs 39,
40, and 44, but due to the differences in the types of activities
authorized by these NWPs and their potential adverse effects on the
aquatic environment, it is impractical to make the conditions for these
NWPs identical. We do not believe that it is necessary to cite the
Memorandum of Agreement between the Corps and NRCS concerning wetland
delineations in this NWP, partly because it is currently undergoing
revisions and it is not essential to the implementation of NWP 40. In
accordance with the proposed modification of General Condition 9,
district engineers can require a water quality management plan for
activities authorized by this NWP, if the 401 certification does not
require such a plan or address potential adverse effects to water
quality. Both the water quality management plan and General Condition
19 allow the District Engineer to require, as compensatory mitigation,
the establishment and maintenance of vegetated buffers adjacent to
streams.
This NWP is subject to proposed General Conditions 25, 26, and 27,
which will reduce its applicability. General Condition 25 prohibits the
use of this NWP to authorize discharges into designated critical
resource waters and wetlands adjacent to those waters. General
Condition 26 prohibits the use of this NWP to authorize discharges
resulting in the loss of greater than 1
[[Page 39319]]
acre of impaired waters, including adjacent wetlands. NWP 40 activities
resulting in the loss of 1 acre or less of impaired waters, including
adjacent wetlands, are prohibited unless prospective permittee
demonstrates that the activity will not result in further impairment of
the waterbody. General Condition 27 prohibits the use of NWP 40 to
authorize permanent, above-grade fills in waters of the United States
within the 100-year floodplain.
In response to a PCN, district engineers can require special
conditions on a case-by-case basis to ensure that the adverse effects
on the aquatic environment are minimal or exercise discretionary
authority to require an individual permit for the work. To allow NRCS
to implement paragraph (a) of this NWP consistently throughout the
country, division engineers cannot add regional conditions to paragraph
(a) of NWP 40. However, division engineers can add regional conditions
to paragraphs (b), (c), and (d) of NWP 40, since the Corps is
responsible for reviewing these activities.
41. Reshaping Existing Drainage Ditches
In the July 1, 1998, Federal Register notice, we proposed a new NWP
(designated as NWP F) to authorize discharges of dredged or fill
material into non-Section 10 waters of the United States for reshaping
existing drainage ditches constructed in waters of the United States by
altering the cross-section of the ditch to benefit the aquatic
environment.
Comments both in support and in opposition of this NWP were
received, but most commenters recommended conditions to minimize
potential impacts. Those in support of the NWP believe that it would be
acceptable with regional conditions or Section 401 water quality
certification conditions and that it will provide oversight or
enforcement in order to reduce abuse in rural areas. Comments opposing
the NWP ranged from no permit should be required at all, as this is an
activity which is exempt from Section 404 regulation, to all activities
in all ditch types should be prohibited in order to prevent degradation
of aquatic resources. One commenter stated that Corps regulation of wet
weather conveyances would be a huge paperwork burden contributing
little to environmental quality. Several commenters stated that it is
not always in the overall best interest of the aquatic resource to
attempt to achieve improvements in water quality by simply reshaping
the banks of the drainage ditch. Many commenters who expressed
opposition to the proposed new and modified NWPs in general stated that
this NWP was an exception because it would meet the minimal effect
requirement.
Many comments regarding jurisdiction were received. One commenter
requested a discussion on jurisdiction as some Corps personnel take
jurisdiction over upland ditches based on wetland parameters. Some
commenters requested the Corps further clarify the distinction between
maintenance work and work that would be authorized by this permit. Some
commenters recommending modifying the text of the NWP to exclude ditch
maintenance projects while others recommended the new NWP include all
ditches that are man-made, regardless of whether or not maintenance has
been performed. One commenter suggested that permits should never be
required for minor drainage activities on agricultural land and for the
maintenance of drainage ditches. Several commenters stated that
roadside ditches are not waters of the United States even if they
contain wetland vegetation. Many believe this permit authorizes work
that is actually exempt from regulation. Other commenters proposed that
the NWP should be applicable in Section 10, including tidal waters, as
well. One commenter suggested that all natural perennial streams,
channelized perennial streams, and/or rechannelized perennial streams
should be excluded from this permit. Some commenters said that the
permit should authorize the reconversion of abandoned ditches, while
others stated that the Corps should stress that abandoned ditches may
not be reconverted. Several commenters stated that this permit should
provide authorization for reshaping obstructed channels. One commenter
said that the permit should be rewritten to clarify that open drainage
ditches, including channelized streams, cannot be considered abandoned
as long as the maintenance authority exists and as long as all cropland
draining to the ditch has not been abandoned. Another stated that this
permit should not be used for streams that are called ``ditches'' or in
channelized portions of streams that convey surface runoff and/or
groundwater.
Several commenters believe the NWP should be more inclusive and
should allow some realignment of the waterway if it is beneficial to
the aquatic environment. One group recommended that ditch relocation
should be allowed because when shopping centers are renovated or
expanded, because the relocation of ditches is often the only activity
regulated by the Corps. Several commenters recommended the permit
should allow for a change in centerline location when the activity
pertains to roadside ditches where transportation agencies are
flattening the side slopes for safety purposes. Additionally, minor
relocation of the ditch could have as much or more of a benefit on
improving water quality and should be allowed under this permit. Some
commenters requested that deepening of ditches should be included
because some ditches were originally dug without enough grade to keep
them from accumulating excess sediment. Other commenters stated that
deepening of drainage ditches should not be allowed beyond the original
configurations due to the resultant additional wetland drainage. One
commenter suggested that this permit should not be used to authorize
diversion or drainage of wetlands or the expansion of the drainage
ditch size. And lastly, one commenter recommended that this permit be
broadened to include all reshaping that might not be exempt as
maintenance.
Discharges associated with the maintenance of drainage ditches
constructed in waters of the United States are exempt from regulation
under Section 404, provided the drainage ditch is returned to its
original dimensions and configuration (see 33 CFR Part 323.4(a)(3)).
However, the modification or new construction of drainage ditches in
waters of the United States requires a Section 404 permit. Since the
maintenance of drainage ditches to their original dimensions and
configurations is exempt from Section 404 permit requirements, the
purpose of the proposed NWP is to encourage reshaping of ditches in a
manner that provides benefits to the aquatic environment. This NWP is
limited to reshaping currently serviceable drainage ditches constructed
in non-tidal waters of the United States, excluding non-tidal wetlands
adjacent to tidal waters, provided the activity does not change the
capacity or location of the drainage ditch. We have changed the
applicable waters for this NWP to make it more consistent with most of
the proposed NWPs. The centerline of the reshaped drainage ditch must
be in essentially the same location as the centerline of the existing
ditch. The proposed NWP does not authorize reconstruction of drainage
ditches that have become ineffective through abandonment or lack of
regular maintenance. This NWP authorizes discharges to grade the banks
of ditches at a gentler slope than they were originally constructed for
the purpose of reducing erosion and decreasing sediment transport down
the ditch by
[[Page 39320]]
trapping sediments. Shallower slopes may increase the amount of
vegetation along the bank of the ditch, which can decrease erosion,
increase nutrient and pollutant uptake by plants, and increase the
amount of habitat for wildlife. We believe that the deepening and/or
widening of a ditch, allowing the centerline to be relocated, and
allowing abandoned ditches to be reconverted could result in more than
minimal adverse effects on the aquatic environment.
Several commenters suggested this permit should be removed from
consideration until questions concerning the Tulloch Rule are resolved,
because a landowner does not know if he or she is required to obtain a
permit for excavation activities or reshaping existing ditches in
wetlands that involve only ``incidental fallback.'' The intent of this
NWP is to authorize a certain activity that does not qualify for the
maintenance exemption and is not for the purpose of increasing drainage
capacity. We believe that this NWP should not be made more inclusive.
The intent of this NWP is to authorize those ditch reshaping activities
that involve more than ``incidental fallback.''
The proposed NWP may not be used to relocate drainage ditches or to
modify drainage ditches to increase the area drained by the ditch
(e.g., by widening or deepening the ditch beyond its original design
dimensions or configuration) or to construct new drainage ditches if
the previous drainage ditches have been neglected long enough to
require reconstruction. This NWP does not authorize the channelization
or relocation of streams to improve capacity of the streams to convey
water. An individual permit, another NWP, or a regional general permit
may authorize the construction of new drainage ditches or the
reconstruction of drainage ditches. The proposed NWP does not authorize
the maintenance or reshaping of drainage ditches constructed in
navigable waters of the United States (non-tidal wetlands that are
adjacent to tidal waters are also excluded). A Section 10 permit is
required for the maintenance or modification of drainage ditches
constructed in navigable waters of the United States. We believe that
modifying this permit to authorize work in Section 10 waters could
result in the authorization of activities that have more than minimal
adverse effects on the aquatic environment.
One commenter recommended that NWP 27 should be expanded to include
this activity while another suggested that it should be authorized
under NWP 3. We do not agree that this activity is similar enough to
the activities authorized by NWP 27 to warrant its inclusion in NWP 27.
The purpose of NWP 27 is to restore, enhance, and create wetland and
riparian areas and restore and enhance non-tidal streams and open
waters. The purpose of proposed NWP 41 is to improve water quality. NWP
3 does not currently authorize reshaping of drainage ditches
constructed in waters of the United States because this activity is not
maintenance or repair. NWP 3 authorizes only maintenance activities
with minor deviations from the previously authorized configuration;
reshaping drainage ditches typically involves more than minor
deviations in ditch cross sectional shape.
Many commenters believe that this NWP will result in the
destruction of riparian habitat, specifically adjacent plant
communities, and degrade water quality through the sidecasting of
excavated material into wetlands. One commenter stated that the permit
would prevent the natural process that increases wetland acreage
through natural deposition of detritus and sediment in natural cycles
that create wetlands. Other commenters believe that this NWP would
cause the degradation of salmon and other fisheries habitat through the
removal of woody debris and that this permit would authorize activities
that reduce the geomorphic ``complexity'' of a stream causing it to
become more uniform and adversely affect some fisheries. One commenter
said that activities authorized by this NWP will have a detrimental
effect on water quality due to a decrease in the velocity of the stream
and it is possible that the stability of the stream could be
compromised due to an unbalanced width/depth ratio. Several commenters
stated that the permit would result in more rapidly draining farm files
in the Midwest, which would increase scouring of banks and waterways
and degrade water quality. One commenter said that the permit should be
modified to state that channel reshaping cannot change the discharge
rate or volume of the ditch.
To address concerns for vegetation adjacent to drainage ditches
that may be removed as a result of the authorized activity, we have
added a second notification requirement to the proposed NWP. The
prospective permittee must notify the District Engineer if more than
500 linear feet of drainage ditch is to be reshaped. District engineers
can review the proposed work and determine if the clearing of adjacent
vegetation will result in more than minimal adverse effects on the
aquatic environment. We do not agree that the activities authorized by
this NWP will disrupt the natural creation of wetlands or result in
substantial degradation of aquatic habitat in streams. It is important
to note that drainage ditch maintenance is exempt under Section 404(f).
If a stream was channelized to improve drainage, the maintenance of the
drainage ditch constructed in the stream is an exempt activity. The
purpose of this NWP is to encourage landowners to maintain the drainage
ditches constructed in waters of the United States in a manner that
benefits the aquatic environment in most cases. Reshaping the drainage
ditch with flatter side slopes will improve water quality and decrease
the velocity of water flowing through the ditch. This NWP does not
authorize modifications to the configuration of the drainage ditch to
increase the area drained by the ditch. We believe that the proposed
NWP adequately states this requirement. For those activities that
require notification, district engineers can impose special conditions
on the NWP authorization to ensure that the work results in minimal
adverse effects or exercise discretionary authority and require an
individual permit.
Some commenters noted that over time, through natural processes,
the side slopes of ditches often become flatter than they wee
originally. In those cases, they say, it would not make sense to
require a permit to maintain existing slopes, even if they are not the
original slopes. This NWP does not require the landowner to maintain
existing slopes, if they have eroded naturally.
Many commenters stated that this NWP contains vague language and
that many terms require clear definition in the context of this permit,
especially ``maintenance,'' ``modification,'' ``reconstruction,''
``regular maintenance,'' ``abandonment,'' and ``loss of
serviceability.'' One commenter stated the phrase ``reshaping to
benefit the aquatic environment'' means significantly different things
in different parts of the country.
We do not agree that definitions of the terms ``maintenance,''
``modification,'' ``reconstruction,'' and ``regular maintenance,'' need
to be provided with the proposed NWP. For the purposes of this NWP, the
definitions of these terms are the same as the definitions in common
usage today. District engineers will determine which ditch reshaping
activities constitute maintenance and which activities constitute
reconstruction. District engineers will determine when a particular
drainage ditch is considered abandoned. Loss of
[[Page 39321]]
serviceability is considered to be the point at which a ditch no longer
functions as a drainage ditch, and reconstruction is needed.
Several commenters asked how the original ditch conditions would be
determined and how the Corps would distinguish between
``reconstruction'' and ``maintenance to original dimensions.'' Some
asked on what basis it would be determined that the proposed project
would improve water quality and how the area of wetland drained by the
original ditch would be determined. Also, some commenters questioned
how one would determine that the proposed channel shape would not
change discharge rate or volume. These commenters also asked who would
be responsible for making these determinations.
District engineers will determine which activities constitute
maintenance, reshaping, or reconstruction. They will use any available
information to make these determinations, including field evidence. In
general, changing the configuration of the drainage ditch to slow water
flow and increase vegetation in the ditch will help improve water
quality because the plants and microbes in the ditch will have more
contact with the water and remove more nutrients and other compounds
from the water. Slower water flow rates will also decrease the sediment
load of the water. The area drained by the ditch can be determined by
using available models, which consider factors such as soil type, ditch
depth, ditch width, etc. The permittee may be required by the District
Engineer to demonstrate that the proposed ditch reshaping activity will
not increase the area drained by the ditch.
Another subject that generated many comments is the definition of a
drainage ditch. One commenter stated that while some drainage ditches
were clearly excavated, either though uplands or wetlands, for the
purpose of creating a drainage channel where one did not exist
previously, in many other cases, natural streams or drainageways were
excavated to increase drainage capacity. In many instances, this took
place decades ago and the waterway has been considered a ``ditch'' by
adjacent landowners since that time. Some commenters believe that
channelized streams should not be considered ditches and that this NWP
should apply only to ditches constructed in uplands and wetlands.
Others, however, noted that in some parts of the country, most
functioning ditches were once natural waterways.
Understanding the differences in definitions of a ditch across the
county, we have included a definition of the term ``drainage ditch'' in
the ``Definitions'' section of the NWPs. This definition recognizes
that drainage ditches may be constructed in uplands or waters of the
United States, including wetlands and streams. A stream which has been
channelized to improve surface drainage is considered a drainage ditch,
for the purposes of the NWP program. District engineers will use
judgement to determine whether a stream is a drainage ditch and
eligible for the Section 404(f) exemption.
Some commenters stated that, to meet minimal adverse effect
criteria, this NWP should have acreage and/or stream length limits. The
recommended acreage limits ranged from \1/10\ to 1 acre. Stream length
limits ranged from zero to one mile. There were recommendations for
compensatory mitigation requirements, such as requiring compensatory
mitigation for impacts greater than 1 acre. Some commenters suggested
PCN thresholds. Some commenters cautioned that when a PCN is not
required, conditions are often ignored and that a PCN should always be
required for work in drainage ditches. Other commenters stated that the
NWP should not authorize discharges of excavated material into waters
of the United States. One commenter believes the NWP should be
conditioned to allow its use only once per watershed and should not be
used in any area identified as having water quality problems or in any
outstanding resource waters. At least one commenter stated that public
review should be required for all work on public storm drain systems
because they directly affect the public and are paid for with public
funds.
We have determined that no acreage limit is necessary for the
proposed NWP, because the authorized work is intended to benefit the
aquatic environment, by changing the shape of the drainage ditch to
improve water quality and other aspects of the aquatic environment.
Notification will be required when excavated material is sidecast into
waters of the United States or greater than 500 linear feet of drainage
ditch is reshaped. The latter PCN requirement was added to address
concerns for adverse effects to riparian areas adjacent to ditches
constructed in waters of the United States. District engineers will
review the PCNs to determine if the proposed work will result in
minimal adverse effects on the aquatic environment. Prohibiting the
sidecasting of excavated material into waters of the United States
would discourage ditch reshaping activities because the Section 404(f)
exemption for ditch maintenance allows sidecasting. Such a prohibition
would cause many landowners to maintain the ditch at its originally
designed configuration to qualify for the exemption. Since the purpose
of the proposed NWP is to encourage ditch maintenance activities that
improve the aquatic environment, it would be counterproductive to limit
its use to only once per watershed or require public review.
Some commenters recommended that compensatory mitigation be
required for all activities authorized by this NWP. Other commenters
asked for clarification that compensatory mitigation is not required.
One commenter believes that the applicants should be required to
provide documentation regarding the scope and effect of the existing
drainage ditch before and after the reshaping activity. Another
commenter stated that the applicant should be required to obtain a
minimal effect determination and certification from NRCS stating that
best management practices have been employed. One commenter suggested
that the Corps should require the submittal and review of an erosion
and sediment control plan prior to authorizing use of this NWP because
these conditions are generally ignored when placed on the permit
itself. Another commenter suggested that a minimum riparian buffer
should be established or maintained as part of the authorization.
Several commenters believe that revegetation of ditch banks with tree
or shrub species should be required after construction to minimize loss
of riparian habitat and reduce the potential for increasing water
temperatures within the ditch. Another commenter recommended: (1)
Conditioning the NWP to prohibit alteration or replacement of one type
of stream substrate with another type; (2) the NWP should not authorize
more than minimal adverse effects to riparian corridors during
construction activities; (3) the NWP should require the replacement of
riparian corridors when they are destroyed during construction; and (4)
the NWP should not authorize the sidecasting of material in such a
manner that the material would block or impede overland surface flows
into any jurisdiction water of the United States, including wetlands.
We have determined that compensatory mitigation will normally not
be required for the work authorized by this NWP because the purpose of
the proposed NWP is to authorize ditch reshaping activities that
improve water quality and aquatic habitat. If the project proponent did
the work to qualify for the Section 404(f) exemption,
[[Page 39322]]
compensatory mitigation would not be required since the activity is
exempt. Requiring compensatory mitigation for modifying the cross-
sectional configuration of the ditch may encourage maintenance to the
original dimensions and configuration and discourage reshaping the
ditch to benefit the aquatic environment. We do not agree that
permittees should be required to provide a statement discussing the
effects of ditch reshaping or that they should be required to obtain a
certification from NRCS. Compliance with any required sediment and
erosion control plan is the responsibility of the permittee. Permittees
are encouraged to maintain a vegetated buffer along one side of the
ditch, but regular maintenance activities will prevent the development
of a woody vegetated buffer along the side of the ditch used by
equipment to perform the excavation.
Several commenters presented a variety of potential problems and
concerns about this NWP. Some commenters believe that this permit will
be very difficult to implement and will require substantial
coordination with the Corps that previously was not required and will
delay implementation of projects. Many commenters requested assurance
that it would be used strictly and successfully for water quality
improvement. They believe the existing drainage ditch exemption is
often abused, resulting in the reditching of long-abandoned ditches,
the excavation of natural streams, and the expansion of ditches beyond
their original dimensions. They envision abuse of this NWP by
applicants stating a water quality improvement purpose, but really
intending to remove woody vegetation from the stream bank or increase
channel capacity to drain a new area. This group of commenters was
concerned that adverse effects on the aquatic environment resulting
from activities authorized by this NWP would be more than minimal and
could result in loss of important riparian habitat bordering
naturalized drainage ditches. They were also concerned about filling
and permanent loss of wetlands as a result of sidecasting. Several of
these commenters pointed out that many of the conditions of this NWP
are very difficult to measure, such as determining if the drainage area
has been increased and determining the changes in ditch configuration
without altering capacity. They caution that some channel reshaping
projects might not be beneficial or would involve a complex trade-off
between various environmental values including habitat, flood control,
and water quality. One commenter said the permit should have language
which encourages retaining the structure and functions of the wetland
and stream habitats.
In response to the comments in the previous paragraph, we must
reiterate that the proposed NWP is intended to encourage ditch
maintenance activities that benefit the aquatic environment. This NWP
authorizes activities that are exempt from Section 404 permit
requirements if those activities were done strictly as maintenance to
the original ditch design configuration. Although the ditch may be a
channelized stream, excavation activities to maintain the drainage
ditch do not require a Section 404 permit. We believe that a drainage
ditch can be reconfigured to provide water quality benefits without
increasing the area drained by the ditch. The removal of riparian
vegetation from uplands adjacent to a channelized stream is not
regulated by the Corps under Section 404. Sidecasting of excavated
material into waters of the United States is exempt from Section 404
permit requirements if the activity is associated with ditch
maintenance. We believe that conditioning this NWP to prohibit the
sidecasting of excavated material into waters of the United States
would severely limit the use of this NWP and encourage exempt
maintenance activities. Likewise, conditioning this NWP to require the
permittee to maintain the wetlands and stream habitat in the project
area would encourage exempt maintenance activities that have more
adverse effects on the aquatic environment.
This NWP is subject to proposed General Condition 26, which will
reduce its applicability. General Condition 26 prohibits the use of
this NWP to authorize discharges resulting in the loss of greater than
1 acre of impaired waters, including adjacent wetlands. NWP 41
activities resulting in the loss of 1 acre or less of impaired waters,
including adjacent wetlands, are prohibited unless prospective
permittee demonstrates to the District Engineer that the activity will
not result in further impairment of the waterbody. Notification to the
District Engineer is required for all activities authorized by this NWP
in impaired waters and wetlands adjacent to those impaired waters.
Division engineers can regionally condition this NWP to exclude
certain waterbodies or require notification when waters or unique areas
that provide significant social or ecological functions and values may
be adversely affected by the work. Activities authorized by this NWP
will have minimal adverse effects on the aquatic environment, since it
is limited to existing drainage ditches and activities that improve
water quality. District engineers can exercise discretionary authority
when very sensitive or unique areas, such as salmonid habitat mentioned
by several commenters, may be adversely affected by these activities.
The PCN requirement allows Corps districts, on a case-by-case basis, to
add appropriate special conditions to ensure that the adverse effects
are minimal. The District Engineer can also assert discretionary
authority to require an individual permit for any activity that may
have more than minimal adverse effects. Proposed NWP F is designated as
NWP 41, with the proposed modifications discussed above.
42. Recreational Facilities
In the July 1, 1998, Federal Register notice, we proposed an NWP to
authorize discharges of dredged or fill material into non-tidal waters
of the United States, excluding non-tidal wetlands contiguous to tidal
waters, for the construction or expansion of passive recreational
facilities.
Several commenters were concerned about the title of this NWP. Some
commenters expressed confusion at the definition of passive
recreational facilities. Other commenters were interested in exactly
what activities were authorized. One commenter suggested that the Corps
clarify what is meant by the term ``open space'' and when a
recreational facility is considered to have a substantial amount of
buildings and other impervious surfaces. Several commenters suggested
defining the wording ``substantially'' when considering the amount of
grading necessary for a particular activity.
To help reduce confusion, we have eliminated the word ``passive''
from this NWP and changed the title of the proposed NWP to
``Recreational Facilities.'' The definition of the term ``recreational
facilities,'' as used for this NWP, and the types of activities
authorized by this NWP have not been modified. For the purposes of this
NWP, recreational facilities are defined as low-impact recreational
facilities that are constructed so that they do not substantially
change preconstruction grades or deviate from natural landscape
contours. Low-impact recreational facilities include, but are not
limited to, bike paths, hiking trails, campgrounds, and running paths.
The construction of golf courses or the expansion of golf courses and
ski areas, can be authorized by this NWP, provided these facilities are
integrated into the existing landscape, do not require substantial
[[Page 39323]]
amounts of grading or filling, and adverse effects to wetlands and
riparian areas are minimized to the extent practicable.
The term ``open space'' refers to areas not disturbed by the
construction or expansion of the recreational facility, such as
forests, fields, riparian areas, etc. Open spaces do not contain any
buildings. District engineers will determine when a proposed activity
involves a substantial amount of buildings, concrete, asphalt, or other
impervious surfaces. The land area for the recreational facility
authorized by the proposed NWP should consist only of a small
proportion of impervious surface. District engineers will also
determine when the amount of grading is substantial.
One commenter stated that facilities for walking, biking, and
running require substantial filling and grading if they are located in
hydric soils. One commenter suggested that gravel paths are pervious
and should qualify for authorization under this NWP. A couple of
commenters suggested that roads are not pervious features and should be
excluded from authorization by this permit. Several commenters
recommended expanding this permit to include other activities that are
beneficial to the community, such as playgrounds, pools, and ball
fields, suggesting that these activities are no more harmful to the
environment than ski areas or golf courses. Many commenters objected to
the inclusion of golf courses, campgrounds, and ski areas in this NWP,
stating that these activities are not consistent with the concept of
passive recreational facilities and do not have low impacts on aquatic
resources.
Walking, running, and biking trails do not necessarily require
substantial grading or filling of hydric soils. These trails can be
constructed by placing a layer of gravel or crushed stone on the trail
or placing a thin layer of asphalt on the soil surface. In some
situations, a footer may be excavated to construct a base for the
gravel or asphalt trail. District engineers will determine when the
construction of a trail involves substantial grading or filling. Timber
decks and walkways should be used where possible to minimize losses of
waters of the United States. Gravel paths and roads are considered
pervious. The proposed NWP can authorize the construction of roads to
provide access to the recreational facility, including support
buildings. However, the roads must be constructed at grade with
pervious materials. Other types of roads to provide access to the
recreational facility can be authorized by other NWPs, such as NWP 14,
as long as the permittee complies with General Condition 15. The
construction of substantial amounts of roads within the recreational
facility is not authorized, since this NWP does not authorize
recreational facilities for use by motor vehicles.
Pools, playing fields, and arenas are not authorized by this NWP.
These activities typically involve substantial grading and filling and
the use of impervious materials for construction. Recreational
facilities can be either public or private and will not have a
substantial amount of buildings and other impervious surfaces, such as
concrete or asphalt. The proposed NWP also authorizes the construction
or expansion of small support facilities such as office buildings,
maintenance buildings, storage sheds, and stables, but does not
authorize the construction of associated hotels or restaurants. The
construction or expansion of campgrounds can be authorized by this NWP,
provided they are integrated into the existing landscape. These
campgrounds should have few impervious surfaces (e.g., concrete or
asphalt) and should consist of small cleared areas for tents and picnic
tables connected by dirt or gravel trails or roads.
The proposed NWP does not authorize the construction or expansion
of campgrounds for mobile homes, trailers, or recreational vehicles.
This NWP does not authorize the construction of playing fields,
basketball or tennis courts, racetracks, stadiums, or arenas.
Recreational facilities not authorized by this NWP may be authorized by
another NWP, a regional general permit, or an individual permit.
Playing fields, playgrounds, and other golf courses may be authorized
by NWP 39 if they are attendant features of residential, commercial, or
institutional developments. For example, NWP 39 can authorize the
construction of a golf course, provided the golf course is an attendant
feature of a residential subdivision. The construction of hotels and
conference centers that are sometimes associated with recreational
facilities are not authorized by this NWP, but may be authorized by NWP
39, a regional general permit, or an individual permit.
Many commenters objected to the inclusion of support facilities or
buildings in this permit. Several commenters wanted clarification on
how much and what type of support buildings are authorized.
This NWP authorizes only small support facilities that are
essential to the operation of the recreational facility. District
engineers will determine what constitutes a ``small'' support facility.
Support facilities typically include maintenance buildings, storage
buildings, and stables, but may also include buildings that store
equipment (e.g., bicycles and canoes) that can be rented by users of
the recreational facilities, and small offices. We anticipate that
these structures will be small and typically have minimal adverse
effects on the aquatic environment. Therefore, it is appropriate to
include these structures in the NWP. We have modified the text of this
NWP to specify that the NWP only authorizes small support facilities.
The fact that these buildings must be directly related to the
recreational activity, along with the acreage limit and PCN thresholds,
will ensure that such support facilities are carefully considered and
will have only minimal adverse effects on the aquatic environment.
A couple of commenters objected to the inclusion of golf courses
and ski areas in this NWP because these facilities also require
intensive maintenance activities, including the application of
fertilizers and pesticides, as well as utility and road maintenance.
Additionally, some ski areas may hydrologically alter certain areas as
artificial snow is created, affecting water flow and adversely
impacting trout streams. One commenter suggested that this permit
should only allow limited size play throughs, and filling of only small
isolated wetlands. This commenter and others further stated that this
permit should focus on preserving natural systems and landscape
features, and incorporating them into the design for the course.
Several commenters objected to the authorization of these types of
activities due to their impacts on the environment, suggesting that
such activities do not have to be located in wetlands.
The proposed NWP authorizes the construction and expansion of golf
courses and the expansion of ski areas, provided they are integrated
into the existing landscape. The construction of new ski areas is not
authorized by this NWP. These facilities may also require some support
buildings with some minor grading and filling for building pads and
foundations. Golf courses may require the placement of crushed stone or
gravel for cart paths or some minor fill for greens and associated
construction activities. We believe it is appropriate to include these
activities in this NWP.
Golf courses and expanded ski areas authorized by this NWP should
be
[[Page 39324]]
subject to careful environmental design and planning. For example,
features to control surface runoff, buffers established and maintained
adjacent to open waters, integrated pest management, and careful
fertilizer and pesticide application, are examples of maintenance and
operation activities which reduce the impacts of these facilities on
the aquatic environment. These types of features and practices may be
part of the water quality management plan required by the proposed
modification of General Condition 9. A well-designed golf course
authorized by this NWP will have avoided most of the wetlands on the
site, incorporated stormwater management facilities into the course to
protect local water quality, and established and maintained vegetated
buffers adjacent to open or flowing waters.
One commenter asked why a project proponent would request
authorization under this NWP when a larger golf course could be
authorized by NWP 39. Another commenter questioned the statement in the
proposed NWP suggesting that commercial recreational facilities may be
authorized by NWP 39. Several commenters stated that the Corps will
subject golf courses to more restrictions and that those restrictions
should be stated in the NWP.
Proposed NWP 39 authorizes the construction of building pads,
foundations, and attendant features for residential, commercial, and
institutional developments. NWP 39 does not authorize the construction
of golf courses on its own, unless those golf courses are attendant
features of developments. However, NWP 39 can be used to authorize
support buildings for a golf course, such as equipment storage
buildings and clubhouses. Other recreational facilities can be
authorized by NWP 39, such as playgrounds or playing fields associated
with schools, provided those recreational facilities are attendant
features of the school buildings. We have adequately discussed the
restrictions on golf courses in the text of NWP 42. Division engineers
can regionally condition this NWP to impose additional restrictions on
this NWP and ensure that it authorizes only activities with minimal
adverse effects on the aquatic environment. District engineers can
exercise discretionary authority if the proposed work may result in
more than minimal adverse effects or place case-specific special
conditions on an NWP authorization to ensure that the authorized work
results in minimal adverse effects on the aquatic environment.
Several commenters supported the proposed 1 acre limit for this
NWP. One commenter suggested that the NWP should authorize the loss of
no more than \1/4\ acre of waters of the United States or 20 linear
feet of stream. Another commenter suggested that the NWP should have an
acreage limit of 1 acre or 20 percent of the total wetland area on the
site, with a prohibition against filling fens, seeps, springs, sand
ponds, or bogs. One commenter suggested that this permit should not
authorize activities within 200 feet of streams or rivers that contain
habitat for salmon. One commenter requested that this permit authorize
only up to \1/3\ of an acre of impacts for linear impact recreational
facilities such as hiking, and biking trails. One commenter recommended
that stream bed impacts should not be authorized by this permit since a
passive recreational facility ``does not substantially change
preconstruction grades or deviate from natural landscape contours.''
We believe that a 1 acre limit for recreational facilities is
appropriate. This limit, with the notification requirements, will
ensure that only activities with minimal adverse effects on the aquatic
environment are authorized by this NWP. With regard to limiting the use
of the proposed NWP in certain aquatic habitat types, we believe that
these issues are more appropriately addressed at the regional level
where division engineers can impose regional conditions to restrict the
use of this NWP in high value waters, or prohibit its use in certain
waterbodies. To make this NWP consistent with most of the other
proposed NWPs, we are proposing to change the applicable waters for
this NWP to ``non-tidal waters, excluding non-tidal wetlands adjacent
to tidal waters.'' We disagree that the NWP should not include impacts
to stream beds. The recreational facility may require crossings over
streams or bank stabilization activities.
One commenter suggested significantly reducing the proposed PCN
thresholds of \1/3\ acre and 500 linear feet of stream bed. A couple of
commenters suggested that a PCN should be required for all activities
authorized by this NWP, because passive recreational facilities are
usually built in areas that are recognized as environmentally
sensitive. One commenter requested that Federal agencies should be
provided the authority to reject an activity for consideration under
this permit.
To make the PCN thresholds of the proposed NWP consistent with the
PCN thresholds of the other new NWPs, we have reduced the PCN threshold
to \1/4\ acre. The PCN requirement for activities causing the loss of
greater than 500 linear feet of perennial and intermittent stream bed
will be retained. These PCN requirements will help ensure that the
activities authorized by this NWP result in minimal adverse effects on
the aquatic environment. Since this NWP has a 1 acre limit, there will
be no agency coordination for PCNs. In addition, we do not believe that
agency coordination is necessary, since this NWP authorizes only those
recreational facilities that are integrated into the natural landscape
and consist primarily of open space.
A commenter suggested that trails resulting in the loss of less
than one acre of non-tidal waters of the United States should be exempt
from the requirements of General Condition 9, especially the
requirement for a water quality management plan.
The District Engineer will determine if the proposed recreational
facility requires a water quality management plan to comply with
General Condition 9. Small trails may not require such a plan. However,
where there are water quality concerns due to the construction and use
of the facility, vegetated buffers may be required. Stormwater
management facilities may also be required.
One commenter said that features such as roads, buildings, and golf
courses result in significant indirect and cumulative impacts in
watersheds by inducing growth in surrounding areas and increasing
runoff and hydrologic modifications. This commenter further suggested
that regionally significant resources should be excluded from this NWP
or impacts to such resources limited. Many commenters focused on the
requirement that this permit should preserve natural systems and that
the authorized facilities must be integrated into the natural
landscape. One commenter stated that this permit is not consistent with
sound watershed management. One commenter stated that the NWP
encourages the removal of trees and other vegetation adjacent to waters
of the United States, which would increase stream bank erosion, and
that the Corps should establish explicit general conditions which
prohibit activities that result in removal of stream bank vegetation
within riparian areas.
The potential for activities authorized by this NWP to induce
growth in surrounding areas is outside of the Corps scope of analysis,
unless the induced growth involves activities regulated by the Corps.
These low-impact recreational facilities may also be constructed in
areas already subject
[[Page 39325]]
to increasing populations. The recreational facilities authorized by
the proposed NWP are low-impact, and will not cause significant
hydrological modifications because the facilities authorized by this
NWP consist mostly of open space, with a small proportion of impervious
surface. The requirements of General Conditions 9 and 21 will also
ensure that the authorized activities do not cause substantial
hydrological modifications. The recreational facilities authorized by
this NWP will help preserve open space if they are constructed in the
vicinity of urbanizing areas. The construction of low-impact
recreational facilities is consistent with sound watershed management
practices. The NWP does not encourage the removal of riparian
vegetation. This NWP, like the other new NWPs, require the
establishment and maintenance of vegetated buffers adjacent to waters
of the United States to the maximum extent practicable (see General
Condition 9).
Many commenters requested that mitigation should be required for
activities authorized by this NWP. One commenter opposed the use of in
lieu fee or mitigation banking programs to serve as mitigation for
losses of waters of the United States authorized by this permit.
Another commenter recommended that mitigation should be required for
losses of less than \1/3\ acre, either through mitigation banks or in
lieu fee programs. One commenter stated that preservation of adjacent
green space is not acceptable as mitigation. This commenter further
stated that the NWP indicates that buffer zones may be required, but
there is not an explicit requirement for vegetated buffers and the
benefit of such buffers is questionable. One commenter said that the
remaining wetlands on the site should be protected from further
development through deed restrictions. Another commenter requested that
the Corps require monitoring and evaluation standards for mitigation
plans.
District engineers may require compensatory mitigation for
activities authorized by this NWP to ensure that the net adverse
effects to the aquatic environment are minimal. Mitigation banks and in
lieu fee programs can be appropriate methods to provide compensatory
mitigation for activities authorized by this NWP. The preservation of
wetlands or vegetated buffers on the site can satisfy compensatory
mitigation requirements, especially if there are high value waters on
the project site that should be protected. The establishment and
maintenance of vegetated buffers adjacent to waters of the United
States can be an important part of the compensatory mitigation required
by district engineers. We cannot require the permittee to preserve the
remaining waters on the site, unless the preservation satisfies a
compensatory mitigation requirement. Otherwise, such a preservation
requirement could be considered a taking of private property. Through
special conditions, district engineers can require compensatory
mitigation, including monitoring plans and evaluation standards.
Several commenters were concerned with the use of this NWP with
other NWPs to authorize activities with larger impacts to the aquatic
environment.
We are proposing to modify General Condition 15 to address the use
of more than one NWP to authorize a single and complete project. In
accordance with the proposed modification of General Condition 15, this
NWP can be used with other NWPs to authorize a single and complete
project, as long as the activity does not cause the loss of waters of
the United States in excess of the highest specified acreage limit of
the NWPs used to authorize that project. Although this NWP is intended
to authorize all activities associated with a single and complete
recreational facility, there may be some related activities, such as
bank stabilization in tidal waters, that cannot be authorized by NWP 42
but can be authorized by other NWPs.
This NWP is subject to proposed General Conditions 25, 26, and 27,
which will reduce its applicability. General Condition 25 prohibits the
use of this NWP to authorize discharges into designated critical
resource waters and wetlands adjacent to those waters. In accordance
with General Condition 26, recreational activities resulting in the
loss of 1 acre or less of impaired waters, including adjacent wetlands,
cannot be authorized by NWP 42 unless prospective permittee
demonstrates to the District Engineer that the activity will not result
in further impairment of the waterbody. General Condition 27 prohibits
the use of NWP 42 to authorize permanent, above-grade fills in waters
of the United States within the 100-year floodplain.
In response to a PCN, district engineers can require special
conditions on a case-by-case basis to ensure that the adverse effects
on the aquatic environment are minimal or exercise discretionary
authority to require an individual permit for the work. The issuance of
this NWP, as with any NWP, provides for the use of discretionary
authority when valuable or unique aquatic areas may be affected by
these activities. Proposed NWP D is designated as NWP 42, with the
proposed modifications discussed above.
43. Stormwater Management Facilities
This NWP was proposed in the July 1, 1998, Federal Register as NWP
C to authorize the discharges of dredged or fill material into non-
Section 10 waters of the United States, including wetlands, for the
construction and maintenance of stormwater management (SWM) facilities.
A large number of comments were received in response to the
proposed NWP, many commenters supporting the NWP and other commenters
opposing the issuance of this NWP. Those commenters supporting the NWP
stated that it would greatly enhance low-value wetland areas and
attenuate the effects of flood waters. Some commenters requested the
withdrawal of this NWP. Commenters opposing the issuance of this NWP
stated that its use will result in more than minimal adverse effects on
the aquatic environment. A number of commenters stated that the NWP
would be difficult for the Corps to implement. One commenter said that
there is no need for this NWP, because SWM facilities can be authorized
by NWP 39 as a part of the residential, commercial, and institutional
development. Several commenters were concerned about the possible use
of this NWP with other NWPs, if SWM facilities are required as part of
the development. One commenter stated that the NWP will reduce
incentives to locate SWM facilities in uplands. Many of those opposing
this NWP believe that the permit only benefits developers who want to
develop the entire upland parcel and locate the SWM facility in
wetlands and that mitigation sequencing (i.e., avoidance, minimization,
and compensatory mitigation) would not take place.
The proposed NWP and the NWP general conditions contain provisions
to help ensure that the NWP does not authorize activities in waters of
the United States with more than minimal adverse effects on the aquatic
environment, individually or cumulatively. The notification
requirements will allow district engineers to review certain stormwater
management activities on a case-by-case basis and exercise
discretionary authority in those cases where the adverse effects on the
aquatic environment are more than minimal. Division and district
engineers can add regional or case-specific conditions to this NWP to
ensure that the NWP authorizes only activities with minimal
[[Page 39326]]
adverse effects on the aquatic environment. An important provision of
the proposed NWP is that it does not authorize the construction of new
SWM facilities in perennial streams, which will protect habitat for
fish and other aquatic organisms.
Although an SWM facility can be authorized by NWP 39 as an
attendant feature of a single and complete development project, there
are circumstances that warrant a separate NWP for SWM facilities. For
example, some SWM facilities may be constructed by a local government
as part of a watershed plan, not for a particular development. SWM
facilities may also be required for transportation projects or upland
development activities. This NWP will not reduce incentives to locate
SWM facilities in uplands, because the permittee is still required to
comply with General Condition 19 and provide with the notification, a
written statement to the District Engineer explaining why the SWM
facility must be constructed in waters of the United States and why
additional minimization cannot be achieved (see paragraph (d) of the
proposed NWP). General condition 19 requires that the permittee avoid
and minimize work in waters of the United States on-site to the maximum
extent practicable.
A number of commenters stated that SWM facilities should not be
constructed in waters of the United States. One commenter said that SWM
facilities should not be constructed in waters of the United States
adjacent to perennial streams. Many commenters indicated that
stormwater should be treated in uplands before it is discharged into
waters of the United States. One commenter stated that SWM facilities
can only increase wetland functions and values when they are
constructed in non-wetland areas. A commenter recommended modifying the
NWP to allow the use of wetland systems for passive treatment of
stormwater runoff. Many state agencies said that they do not allow the
treatment of stormwater in wetlands. One commenter stated that the use
of the NWP in waters of the United States should be limited only to
receiving stormwater runoff, which will not permanently change the
waters of the United States, and proposed a \1/3\-acre limit for
structures, such as outfalls. Another commenter stated that the NWP
should not authorize SWM facilities in waters of the United States,
unless the project results in enlargement and enhancement of existing
wetlands. One commenter stated that an NWP authorizing SWM facilities
in wetlands is contrary to EPA's 1990 guidance on wetlands and non-
point source pollution control programs and requested clarification
regarding what constitutes ``in certain circumstances,'' as cited in
the preamble discussion concerning the placement of SWM facilities in
waters of the United States in the July 1, 1998, Federal Register
notice. This commenter also objected to the proposed NWP because it
authorizes SWM facilities in streams and said that these activities
will result in the destruction of stream morphology and destabilize the
stream bed, reducing water and habitat quality. One commenter stated
that stormwater management ponds constructed in wetlands actually
encourage a slower decomposition of toxins, and locating an SWM
facility in wetlands creates greater potential for toxic pollution if
the pond containment structure or fill fails or the pond is overfilled.
A commenter recommended prohibiting the construction of stormwater
detention facilities in waters of the United States within 150 feet of
the ordinary high water mark.
The construction of SWM facilities in waters of the United States
is often necessary, and may provide more protection to the aquatic
environment. SWM facilities located in waters of the United States are
often more effective than SWM facilities constructed in uplands,
because storm runoff flows to streams and wetlands, making these areas
better able to trap sediments and pollutants than upland areas. The
local aquatic environment benefits from more efficient SWM facilities.
Low value wetlands and low value ephemeral and intermittent streams may
be the best places to locate SWM facilities, to reduce adverse effects
to higher value waters by attenuating storm flows and preventing
pollutants from further degrading those areas. The proposed NWP
authorizes the construction of SWM facilities in waters of the United
States, particularly low value waters, provided that adverse effects on
the aquatic environment are minimal. Division engineers can regionally
condition this NWP to prohibit its use in high value waters. For those
activities that require notification, discretionary authority will be
exercised by district engineers on a case-by-case basis where the
adverse effects on the aquatic environment are more than minimal. We do
not agree that the NWP should be limited only to those projects that
enlarge or enhance existing wetlands. In addition, we do not agree that
the construction of stormwater management facilities should be
prohibited in waters of the United States within 150 feet of the
ordinary high water mark because this requirement would prevent
district engineers from using this NWP to authorize many effective SWM
facilities with minimal adverse effects on the aquatic environment.
Through the notification process, district engineers will determine
which SWM facilities can be authorized by this NWP. Locating SWM
facilities in ephemeral and intermittent streams will help reduce
degradation of perennial stream morphology by reducing the velocity of
surface water flows during storm events. Adequately designed stormwater
detention and retention ponds, particularly those ponds constructed in
locations where they most effectively capture runoff (i.e., in
ephemeral and intermittent stream beds), will help prevent stormwater
flows from entering perennial streams with velocities high enough to
erode the stream banks and downcut the stream bed. These ponds will
also trap sediments, which will help maintain the substrate of the
stream bed and reduce water quality degradation. Permittees are
required to maintain authorized SWM facilities to prevent the entry of
pollutants in the waterway if the pond fills with sediment or the pond
containment structure deteriorates. Paragraph (c)(1) of the proposed
NWP requires prospective permittees to submit a maintenance plan, if
required, with the PCN. The maintenance plan will ensure that the SWM
facility will retain its effectiveness at trapping sediments and
pollutants and attenuating flood waters.
Many commenters expressed concern for adverse effects to wetlands
that may result from changing from one wetland type to another or from
adverse effects caused by secondary impacts due to flooding,
excavation, or drainage. One commenter stated that this NWP allows the
replacement of a natural SWM facility with a concrete facility, thereby
increasing the possibility of downstream flooding. A commenter
advocated the preservation of natural landscapes for flood control
purposes by promoting the use of non-structural alternatives for SWM.
Some commenters said that this NWP should not authorize stream
relocation or the construction of ponds in wetlands and that the Corps
should not encourage other changes to natural drainage systems or
diversions of watercourses.
The proposed NWP authorizes the construction of SWM facilities,
which may result in wetland conversion and the flooding, excavation, or
draining of wetlands. Some relocation of intermittent or ephemeral
streams may be necessary to construct the SWM
[[Page 39327]]
facility. For those activities that require notification, district
engineers will review the proposed work to determine if the proposed
work will result in more than minimal adverse effects on the aquatic
environment. Division engineers can regionally condition this NWP lower
the notification thresholds or restrict the use of the NWP to ensure
that it authorizes only those SWM activities with minimal adverse
effects on the aquatic environment. Although we encourage the use of
non-structural methods for SWM, structural practices are often the only
practicable methods, and should be authorized by NWP if they result
only in minimal adverse effects on the aquatic environment.
Many of the commenters supporting the proposed NWP requested that
the Corps expand the scope of the NWP to include perennial streams and
Section 10 waters, including tidal waters. One commenter requested that
the NWP authorize sediment basins in perennial streams if sedimentation
is a problem in the area. One commenter stated that outfall structures
may need to be constructed in Section 10 waters, especially rivers.
Another commenter requested that the Corps clarify whether the NWP
authorizes discharges into wetlands adjacent to perennial streams. One
commenter stated that design criteria should be included in the NWP.
In the July 1, 1998, Federal Register notice, we proposed to limit
this NWP to non-Section 10 waters, including wetlands. To simplify the
scope of applicable waters for the proposed NWPs, we are proposing to
limit this NWP to activities in non-tidal wetlands, excluding non-tidal
wetlands adjacent to tidal waters. However, this NWP is still limited
to Section 404 waters and does not authorize SWM activities in non-
tidal Section 10 waters. The construction of new SWM facilities in
perennial streams is not authorized by this NWP. We believe that
expanding the scope of applicable waters for this NWP to tidal waters
and perennial streams would be contrary to the minimal adverse effects
requirement of the NWPs, because such an expansion of scope would
substantially increase the potential for more than minimal adverse
effects on the aquatic environment, individually or cumulatively.
Project proponents who need to construct SWM facilities in perennial
streams, tidal waters, or Section 10 waters can request authorization
through the individual permit process or utilize regional general
permits, if available. This NWP authorizes discharges into wetlands
adjacent to perennial streams, but does not authorize discharges into
the perennial stream bed. Outfall structures associated with an SWM
facility that must be constructed in Section 10 waters may be
authorized by NWP 7, provided the single and complete project complies
with General Condition 15. We do not agree that design criteria should
be included in the NWP. Specific design criteria vary across the
country and are more appropriately evaluated by district engineers on a
case-by-case basis. Regional conditions can prohibit certain stormwater
management activities from authorization by this NWP.
Several commenters addressed jurisdictional issues related to this
NWP. One commenter said that no permit is required for these
activities. Several commenters stated that all references to excavation
and other activities that do not result in a discharge of material into
waters of the United States in accordance with the Tulloch Rule
decision should be deleted from the NWP. A few commenters emphasized
the need to clearly identify the Corps jurisdiction as it relates to
stormwater retention and detention facilities. Other commenters
questioned the need for a permit to maintain SWM facilities which were
constructed entirely in uplands.
The construction and maintenance of SWM facilities require a
Section 404 permit if the activity results in a discharge of dredged or
fill material into waters of the United States. SWM facilities require
a Section 10 permit if they involve any work in navigable waters of the
United States. Excavation activities in waters of the United States
require a Section 404 permit, if those excavation activities result in
more than incidental fallback of excavated material. District engineers
will determine, on a case-by-case basis, if a specific SWM facility
contains waters of the United States. If the SWM facility was
constructed entirely in uplands, and does not expand the reach of
waters of the United States, then that SWM facility is not a water of
the United States (see 33 CFR Part 328.5). Maintenance of SWM
facilities constructed entirely in uplands does not require a Section
404 permit, provided the construction of that SWM facility did not
expand the reach of waters of the United States.
Proposed NWP C had a 2 acre limit for the construction of new SWM
facilities, but no acreage limit for maintenance activities. In
response to the July 1, 1998, Federal Register notice, commenters
recommended acreage limits for the construction of new SWM facilities,
which ranged from 1 to 5 acres. Several commenters supported no acreage
limit for the maintenance of existing SWM facilities. Commenters
recommended acreage limits of \1/3\ acre and 1 acre for maintenance
activities. One commenter stated that the proposed 2 acre limit for
construction was too high. One commenter asked the Corps to clarify
whether the 2 acre limit applies to each individual facility, or
whether it applies to the watershed. A number of commenters recommended
limits for impacts to stream beds, ranging from no impacts to stream
beds to a 500 linear foot limit. One commenter supported the PCN
threshold for stream bed impacts, rather than a linear foot limitation.
A couple of commenters stated that the 2 acre limit is too low and the
acreage limit should be based site-specific criteria, such as the
quality of affected waters. Another commenter recommended basing the
acreage limit on regional conditions, with a national PCN threshold of
\1/3\ acre. One commenter suggested that temporary impacts could result
in adverse effects, depending on the duration of flooding, and that
impacts due to flooding should be considered in the acreage limit of
the NWP.
Based on our review of these comments, we are proposing to retain
the 2 acre limit for the construction of new SWM facilities, with no
limit on maintenance activities provided the maintenance activity is
conducted in accordance with an approved maintenance plan. The 2 acre
limit applies to each single and complete project, not the watershed.
We believe that the proposed NWP should not have a limit for activities
resulting in the loss of intermittent stream bed; the PCN threshold of
500 linear feet is adequate to allow district engineers to determine if
the proposed work will result in more than minimal adverse effects on
the aquatic environment. For activities resulting in the loss of
ephemeral stream bed, there is no PCN threshold. Division engineers can
regionally condition this NWP to establish limits for stream bed
impacts or lower PCN thresholds. Division engineers can also regionally
condition this NWP to add PCN thresholds for activities resulting in
the loss of ephemeral stream bed.
A simple 2 acre limit is much easier to implement than an acreage
limit based on the quality of affected waters. A simple acreage limit
is less confusing to the regulated public, because there are no
standard, widely accepted methods available to establish acreage limits
for stormwater management facilities based on the quality of affected
waters. In areas where the 2 acre limit is too low, the Corps district
can
[[Page 39328]]
develop regional general permits to authorize these activities.
District engineers will determine when adverse effects due to flooding
result in permanent, not temporary, losses of waters of the United
States and should be counted toward the 2 acre limit for this NWP.
Numerous comments were received regarding the PCN thresholds for
the proposed NWP. Some commenters believe that PCNs should not be
required for any activity authorized by this NWP. Other commenters
recommended requiring PCNs for all activities authorized by this NWP
because SWM facilities are public facilities built with public funds.
Suggested PCN thresholds included \1/4\, \1/3\, and \1/2\ acre. One
commenter recommended requiring agency coordination for all activities
authorized by this NWP to provide an opportunity to assist in the
planning of the facility. Recommended PCN thresholds for stream bed
impacts ranged from 150 to 1,000 linear feet.
The notification process is necessary to ensure that the proposed
NWP authorizes only those activities that result in minimal adverse
effects on the aquatic environment, individually or cumulatively. It is
unnecessary to require PCNs for all activities authorized by this NWP,
unless the division engineer has specific concerns for the aquatic
environment in a particular geographic area and regionally conditions
the NWP to lower the notification thresholds. Stormwater management
activities resulting in the loss of less than \1/4\ acre of non-tidal
waters of the United States, the loss of less than 500 linear feet of
intermittent stream bed, or the loss of ephemeral stream bed are
unlikely to result in more than minimal adverse effects on the aquatic
environment. To be consistent in the PCN thresholds for the other
proposed NWPs, we have lowered the PCN threshold from \1/3\ acre to \1/
4\ acre. Agency notification will be conducted for activities that
result in the loss of greater than 1 acre of waters of the United
States.
We received many comments regarding maintenance requirements and
maintenance limits for the proposed NWP. Some commenters stated that a
permit should not be required for maintenance as long as there are no
impacts beyond the originally approved facility. Other commenters said
that this NWP is unnecessary because the maintenance can be authorized
by NWP 3. Some commenters stated that maintenance is poorly defined and
should not be authorized by this NWP. They state that maintenance
activities can be just as destructive of wetlands as the initial
construction of the facility. Several commenters requested a limit on
the maintenance of SWM facilities, while some commenters recommended no
limit to ensure that the design capacity is maintained. One commenter
stated that a second review for maintenance of the facility is
unnecessary because wetland impacts at the time of the original
construction have already been considered.
Some commenters were concerned with the requirement for submitting
a maintenance plan as part of the notification package. A number of
commenters asked how a prospective permittee would comply with this
requirement for the maintenance of an SWM facility that does not have a
maintenance plan. Other commenters asked who would approve the
maintenance plan if State and local entities did not require such a
plan. Many commenters requested guidance as to what information would
be required for the maintenance plan.
We are proposing to adopt a tiered approach when assessing the need
for, and the amount of, maintenance at the facility. First, if a State
or locally approved plan currently exists, that plan must be submitted
as part of the notification package. If a plan does not exist, drawings
of the original design capacities and design configurations should be
submitted. Finally, if no plan and/or drawings exist, the best
professional judgment of the Corps, with input from the manager of the
facility, will be used to determine if the maintenance activity is
authorized by this NWP. As for the content of the maintenance plan, if
existing State or local requirements are in place regarding the
development of such a plan, their standards will normally be accepted.
If there are no such requirements, the plan should generally discuss
the frequency and amount of maintenance which is required to ensure the
facility functions as designed. If no plan currently exits, a new plan
should be submitted for any requests for maintenance under this NWP.
A number of commenters requested that the Corps add a condition to
this NWP requiring a statement from the applicant that explains how
losses of waters of the United States were avoided and minimized on-
site and why additional minimization cannot be achieved. Some
commenters stated that compensatory mitigation should be required for
all SWM facilities and some suggested that the mitigation proposal
should be part of the PCN. One commenter said that compensatory
mitigation should not be allowed in designated facility maintenance
areas. Several commenters urged the Corps to reiterate that no
compensatory mitigation is required for losses resulting only from
maintenance excavation. Other commenters stated that compensatory
mitigation should not be required for SWM facilities in areas that may
provide more environmentally sensitive planning and benefits to the
aquatic environment than placing those facilities in uplands. Other
commenters asked whether mitigation credits can be gained through the
use of bioengineering techniques and aquatic benches.
We have added a provision to the proposed NWP (paragraph (d)),
requiring the prospective permittee to submit a written statement
explaining how avoidance and minimization, to the maximum extent
practicable, was achieved on the project site. Paragraph (c)(3)
requires the prospective permittee to submit, with the notification, a
compensatory mitigation proposal to offset losses of waters of the
United States resulting from activities authorized by this NWP.
Maintenance activities typically do not result in losses of waters of
the United States if they are conducted in designated maintenance
areas. Therefore, compensatory mitigation for maintenance activities
within a currently serviceable SWM facility will not be required in
most circumstances. Compensatory mitigation areas within an SWM
facility should be designated as non-maintenance areas. If maintenance
is required in a designated non-maintenance area used for compensatory
mitigation, then the permittee may be required to provide compensatory
mitigation for that maintenance activity. District engineers will
determine if compensatory mitigation is necessary to ensure that the
authorized work results only in minimal adverse effects on the aquatic
environment. If the SWM facility is not currently serviceable and
requires reconstruction, compensatory mitigation may be required if the
District Engineer determines that it is necessary to ensure that the
adverse effects on the aquatic environment are minimal.
Compensatory mitigation can be located within an SWM facility,
provided it is not located in designated maintenance areas. It is at
the discretion of the District Engineer to determine if it is
appropriate to include compensatory mitigation (i.e., wetland
restoration, creation, or enhancement) within a particular SWM
facility. Designated maintenance areas include sediment forebays
designed to capture
[[Page 39329]]
the sediment in a specific area of the SWM facility. Where the SWM
facility provides substantial environmental benefits and/or improves
the aquatic environment, compensatory mitigation may not be required.
Any future maintenance of the SWM facility conducted in designated
maintenance areas identified in the maintenance plan will not require
additional compensatory mitigation. It is at the discretion of district
engineers whether to allow mitigation credits to become established at
a SWM facility constructed with bioengineering techniques and aquatic
benches. However, since SWM facilities must be regularly maintained to
retain their effectiveness, they should not be used to establish
mitigation credits for permanent losses of waters of the United States.
Many commenters recommended conditions to be added to the proposed
NWP. One commenter suggested prohibiting discharges into fish habitat
and requiring riparian buffers. Another commenter recommended
prohibiting use of the NWP within 200 feet of streams or rivers that
contain habitat for salmon. One commenter stated that intermittent
streams provide valuable salmon habitat and should receive the same
protection as perennial streams. One commenter requested that the NWP
contain a condition prohibiting construction and maintenance during the
spring and summer nesting periods of birds protected under the
Migratory Bird Treaty Act and prohibiting work in streams during
anadromous fish migration periods. A commenter requested a condition to
require maintenance of base flows of streams during low flow periods to
protect aquatic species. One commenter recommended adding a condition
requiring the project proponent to demonstrate that environmental
enhancement throughout the life of the project will result from the SWM
project.
Conditions for specific fisheries and migratory bird concerns are
best addressed through the regional and case-specific special
conditions. This NWP can be regionally conditioned to prohibit the
construction of SWM facilities in intermittent streams that support
important fisheries. General Condition 21 requires the permittee to
maintain, to the maximum extent practicable, preconstruction downstream
flow rates, including stream base flows. It is unnecessary to require
the permittee to demonstrate that the SWM facility will enhance the
aquatic environment throughout the life of the project. The purpose of
SWM is to prevent or reduce further degradation of the aquatic
environment, especially water quality. District engineers will review
PCNs for certain SWM activities to determine if the proposed work will
result in minimal adverse effects on the aquatic environment. If the
adverse effects are more than minimal, discretionary authority will be
exercised and an individual permit will be required.
One commenter stated that the NWP should specifically authorize
sediment control structures. Another commenter requested clarification
as to whether or not this NWP authorizes in-stream sediment retention
and detention basins. One commenter suggested prohibiting construction
of concrete or rip rap-lined channels. A commenter asked for a
definition for water control structures and emergency spillways and to
delete the word ``emergency'' in the introductory paragraph of the NWP.
One commenter recommended requiring best management practices to
prevent downstream impacts of stormwater ponds, including retention
facilities, such as holding and treating ``first flush'' from
impervious surfaces.
The proposed NWP does not authorize sediment control structures
(e.g., silt fences and check dams) unless they are a part of an SWM
facility. The intent of the opening paragraph of this NWP is to provide
examples of authorized activities, not an inclusive list. For
activities that require notification, district engineers will determine
which SWM facilities are authorized under this NWP. Water control
structures control the flow of water and may impound a certain volume
of water. It is unnecessary to delete the word ``emergency'' as a
modifier of the word ``spillways,'' because the purpose of emergency
spillways is to provide an outlet for larger volumes of water and
prevent an emergency situation from developing due to a large amount of
water placing pressure on the dam, which may cause the dam to fail.
Best management practices to prevent downstream adverse water quality
effects of SWM ponds are best addressed through the 401 water quality
certification.
A few commenters requested that the Corps expand the NWP to
authorize the construction of flood control facilities. One commenter
requested that the NWP authorize the construction of drainage
conveyances such as culverts, canals, and ditches, as well as dam and/
or weir construction. One commenter stated that the Corps needs to
distinguish between SWM facilities authorized by this NWP and the flood
control facilities authorized by NWP 31.
SWM facilities are constructed to control stormwater quantity and
quality. SWM facilities provide some flood control for certain storm
events. NWP 43 can authorize the construction of certain SWM facilities
that also control flooding during small storm events, but larger flood
control facilities constructed in waters of the United States must be
authorized by other NWPs, regional general permits, or individual
permits. Drainage facilities are not authorized by this NWP, unless
they are part of an SWM facility. NWP 31 authorizes the maintenance of
flood control facilities, not the construction of new flood control
facilities.
This NWP is subject to proposed General Conditions 25, 26, and 27,
which will substantially reduce its applicability. General Condition 25
prohibits the use of this NWP to authorize discharges into designated
critical resource waters and wetlands adjacent to those waters. General
Condition 26 prohibits the use of this NWP to authorize discharges
resulting in the loss of greater than 1 acre of impaired waters,
including adjacent wetlands. NWP 43 activities resulting in the loss of
1 acre or less of impaired waters, including adjacent wetlands, are
prohibited unless prospective permittee demonstrates to the District
Engineer that the activity will not result in further impairment of the
waterbody. Notification to the District Engineer is required for all
discharges into impaired waters and their adjacent wetlands. General
Condition 27 prohibits the use of NWP 43 to authorize permanent, above-
grade fills in waters of the United States within the 100-year
floodplain.
In response to a PCN, district engineers can require special
conditions on a case-by-case basis to ensure that the adverse effects
on the aquatic environment are minimal or exercise discretionary
authority to require an individual permit for the work. The issuance of
this NWP, as with any NWP, provides for the use of discretionary
authority when valuable or unique aquatic areas may be affected by
these activities. This NWP, proposed as NWP C in the July 1, 1998,
Federal Register notice, is designated as NWP 43, with the proposed
modifications discussed above.
44. Mining Activities
During the 1996 NWP reissuance process, we proposed an NWP for
Mining Operations. Based upon comments and information gathered during
this process, we decided to encourage the development of regional
general permits, rather than develop specific limits to meet the
minimal
[[Page 39330]]
adverse effects requirement of Section 404(e). As a part of the
initiative to replace NWP 26, the aggregate and hard rock/mineral
mining industries provided information and proposed draft NWPs that
they believed would satisfy the minimal adverse effect criterion. We
evaluated that information and in the July 1, 1998, Federal Register
notice, proposed NWP E for aggregate and hard rock/mineral mining
activities. As a result of the comments we received in response to the
July 1, 1998, Federal Register notice, this NWP has been substantially
modified. Many commenters stated that the proposed NWP E was too
complex, difficult to understand, and too confusing. A number of
commenters expressed uncertainty about the applicable waters for the
NWP, the limits of work, and which activities could be conducted under
the NWP.
General Comments: Many commenters expressed opposition to the
proposed NWP. Numerous commenters objected to the proposed NWP because
they believe that it authorizes activities with more than minimal
adverse effects on the aquatic environment, especially water quality,
aquatic habitat, fish and shellfish populations, and hydrology, as well
as adjacent landowners. A large number of commenters stated that
aggregate and hard rock/mineral mining activities should be subject to
the individual permit process and public interest review. Other
commenters said that the NWP should not be issued because it authorizes
activities that are not similar in nature. Two commenters recommended
that regional general permits should be developed in each state instead
of an NWP. Several commenters objected to the proposed NWP because they
believe it is too complex. A commenter objected to the proposed NWP
because the commenter believes that the preamble fails to explain why a
mining NWP is needed. A number of commenters recommended that the Corps
issue a separate NWP for aggregate mining activities. One commenter
suggested that the Corps issue a separate NWP for crushed stone
operations.
We believe that certain aggregate and hard rock/mineral mining
activities can be authorized by NWP if that NWP is properly conditioned
to protect the aquatic environment. The scope of this NWP has been
reduced from the proposed NWP E published in the July 1, 1998, Federal
Register. We have also substantially restructured the proposed NWP to
make it easier to understand. The activities authorized by this NWP are
similar in nature, and focus on the mining activity and support
activities. This NWP may be suspended or revoked in certain areas,
particularly those areas inhabited by economically important fish, such
as salmonids. Division engineers can regionally condition this NWP to
protect locally important aquatic resources. It is unnecessary and
impractical to withdraw this NWP and direct our districts to develop
regional general permits. A large number of regional general permits
for mining activities would create confusion for the regulated public,
especially for those companies that have mining operations across the
country. This NWP is necessary because aggregate mining and hard rock/
mineral mining have been authorized by NWP 26 in the past. We do not
believe it is necessary to develop separate NWPs for aggregate mining
and crushed stone mining activities.
Scope of waters: In the July 1, 1998, Federal Register notice, we
structured the proposed NWP E based on the types of waters impacted by
either aggregate or hard rock/mineral mining activities. There were
several categories of waters in the proposed NWP. Those categories of
waters included: lower perennial riverine systems, intermittent and
ephemeral streams, intermittent and small perennial stream relocations,
isolated wetlands, wetlands above the ordinary high water mark in non-
Section 10 waters, and dry washes and arroyos. Many commenters
supported the expanded scope of waters, compared to the applicable
waters for NWP 26. Two commenters objected to this NWP because it was
applicable to all non-tidal waters, instead of only headwaters and
isolated waters. One commenter stated that the July 1, 1998, Federal
Register notice did not clearly explain why sand and gravel mining,
crushed and broken stone mining, and hard rock/mineral mining were
authorized in different types of waters. One commenter recommended that
this NWP authorize mining activities only in large river systems to
protect small streams and creeks. One commenter suggested that all of
the types of applicable waters for NWP E should be based on a standard
classification system, such as the Cowardin classification system, so
that there will be more consistent implementation of the NWP. One
commenter stated that this NWP should not authorize work in streams,
especially those streams that support fish spawning areas.
As a result of our review of the comments received in response to
the July 1, 1998, Federal Register notice, we have reduced the
applicable waters for the proposed NWP by excluding certain waters from
this NWP. The reduced scope of waters will help ensure that the
authorized activities will result in minimal adverse effects on the
aquatic environment and simplify the NWP to make it easier to
understand. We have limited the types of waters where mining activities
can occur under this NWP to: lower perennial streams (i.e., lower
perennial riverine subsystems as defined by the Cowardin classification
system for wetlands and deep water habitats), isolated waters, streams
where the average annual flow is 1 cubic foot per second or less, and
non-tidal wetlands adjacent to headwater streams. Aggregate mining is
not authorized in waters of the United States within 100 feet of the
ordinary high water mark of streams where the average annual flow is
greater than 1 cubic foot per second. This NWP does not authorize hard
rock/mineral mining activities in streams, or in waters of the United
States within 100 feet of the ordinary high water mark of headwater
streams. Aggregate and hard rock/mineral mining are not authorized in
non-tidal wetlands adjacent to streams where the average annual flow is
greater than 5 cubic feet per second.
There are different applicable waters for different types of mining
activities because not all types of materials are found in the same
waters. For example, the substrate of lower perennial riverine
subsystems, by definition, contains mostly mud and sand. To obtain
larger aggregates, the mining operation must go upstream to upper
perennial streams, as well as intermittent and ephemeral streams. We do
not believe that it is practical or necessary to restrict the proposed
NWP only to large riverine systems. We have reduced the applicability
of this NWP in smaller streams to ensure that the adverse effects of
these mining activities will be minimal. Notification is required for
all activities authorized by this NWP. If a district engineer reviews a
PCN and determines that the proposed work will result in more than
minimal adverse effects on the aquatic environment, then discretionary
authority will be exercised and an individual permit will be required.
We are not aware of a classification system that will allow district
engineers to better control adverse effects on the aquatic environment
and make the NWP easier to implement. For example, the Cowardin
classification system is based on a scale that is too large for the
purposes of this NWP. The scale of the upper perennial riverine
subsystem is too broad to provide district engineers with the type of
control that is necessary for this NWP. We believe that our approach is
better because the smaller
[[Page 39331]]
scale allows us to better control impacts to the aquatic environment.
We have reduced the applicability of the proposed NWP in streams,
to better protect those streams that support fish spawning areas. The
proposed NWP E authorized discharges into intermittent and ephemeral
streams, and authorized the relocation or diversion of intermittent and
small perennial streams. In the proposed NWP 44, aggregate mining
activities can occur in lower perennial streams or streams where the
average annual flow is 1 cubic foot per second or less. Intermittent
streams with average annual flows of greater than 1 cubic foot per
second cannot be mined for aggregates under this NWP. Hard rock/mineral
mining is not authorized in streams.
One commenter stated that the NWP should authorize hard rock mining
activities in other waters of the United States, in addition to dry
washes and arroyos. Three commenters requested that definitions of the
terms ``dry washes'' and ``arroyos'' should be included in the NWPs.
One commenter said that ephemeral streams, dry washes, and arroyos
should not be included in the NWP because of the recent United States
v. James J. Wilson, 133 F. 3d 251 (4th Cir. 1997) decision.
We do not agree that hard rock/mineral mining activities should be
authorized in streams because the potential for more than minimal
adverse effects on the aquatic environment is too great. To further
protect streams from the adverse effects of hard rock/mineral mining
activities, we are proposing to add a condition to this NWP requiring
that beneficiation and mineral processing cannot occur within 200 feet
of the ordinary high water mark of any open waterbody. Since we have
removed the terms ``dry washes'' and ``arroyos'' from the NWP, we do
not need to include definitions of these terms. It is important to note
that the United States v. James J. Wilson decision applies only to the
states in the 4th Circuit (i.e., Maryland, West Virginia, Virginia,
North Carolina, and South Carolina). Other areas of the country are not
subject to this decision.
Authorized Activities: One commenter stated that several paragraphs
of NWP E appear to duplicate each other and should be combined to
simplify the NWP. Another commenter said that the types of mining
authorized by this NWP generally result in similar impacts and do not
need to be distinguished between each other in the NWP. A large number
of commenters stated that the term ``filling'' should be used where
appropriate when describing the authorized activities and the acreage
limits for those activities. One commenter recommended that the NWP
clearly define what types of activities are considered to be mining
activities, because many mining sites are managed for multiple land
uses. This commenter stated that the NWP should not allow use of this
NWP for the mining activity and another NWP for another activity on
that parcel of land. One commenter recommended that the NWP include a
condition addressing mechanized landclearing when that activity results
in a deepening of waters of the United States instead of replacing
those areas with dry land. One commenter stated that this NWP should be
limited to authorizing access corridors for mining drag lines and
prospecting activities, not the actual mining activity.
We have removed the duplication within the proposed NWP to make it
simpler and easier to understand. In this NWP, we use the term
``discharges of dredged or fill material'' instead of ``filling''
because it is the standard terminology for the Section 404 program.
``Filling'' is not the only activity that can result in a discharge
into waters of the United States. In certain circumstances, excavating,
draining, or flooding waters of the United States can be considered as
discharges regulated under Section 404 of the Clean Water Act. On a
case-by-case basis, district engineers will determine what constitutes
``mining'' for the purposes of this NWP. If a tract of land is managed
for multiple uses, district engineers must determine if each land use
constitutes a separate single and complete project (i.e., each activity
has independent utility from the other activities on the parcel). If an
activity on the land tract has independent utility and constitutes a
separate single and complete project, another NWP can be used to
authorize that activity, if it meets the terms and conditions of that
NWP. Mechanized landclearing that changes the use of a water of the
United States must be calculated in the acreage loss for the mining
activity, but we do not believe that it is necessary to add a condition
to this NWP to address this specific situation. Limiting this NWP to
the construction of access corridors for mining draglines and
prospecting activities rather than the mining activity is illogical,
because Section 404 authorization is still likely to be required for
the mining activity itself. If an individual permit is required for the
mining activity, that permit would authorize the construction of the
access corridor, if it is constructed in waters of the United States.
One commenter suggested that aggregate mining activities authorized
by this NWP should include the mining of fill dirt, shell, and clay,
including Fuller's earth and kaolin. Another commenter recommended that
NWP E should be modified to authorize the mining of fill material for
levee and embankment construction, reconstruction, and repair.
We do not agree that clay mining should be included in the NWP,
because it is a mining activity that is best addressed at a district
level through regional general permits. The excavation of fill dirt
from waters of the United States, particularly wetlands, is likely to
result in more than minimal adverse effects on the aquatic environment,
because fill dirt for construction, including the construction and
repair of levees, can be easily obtained from upland areas, and
authorizing the extraction of soil from wetlands to construct levees
and embankments by an NWP is unwarranted. If fill material cannot be
obtained from upland areas, then the removal of soil from waters of the
United States to provide fill material can be authorized by another
NWP, such as NWP 18, a regional general permit, or an individual
permit.
The mining of shell is also inappropriate for authorization by this
NWP, because the potential impacts of this type of mining activity may
be more than minimal, especially in estuarine waters where areas of
fossil shell provide valuable habitat for fish. Proponents of shell
mining can obtain authorization through the individual permit process
or other available general permits.
Two commenters objected to the exclusion of hard rock/mineral
mining from intermittent and ephemeral streams. Two commenters objected
to prohibiting hard rock/mineral mining activities in lower perennial
riverine systems. Another commenter requested clarification as to which
types of hard rock/mineral mining activities are authorized by this NWP
and the categories of waters in which those activities can take place.
One commenter suggested that the NWP prohibit beneficiation and mineral
processing in waters of the United States, to minimize potential spills
and releases of toxic substances.
Hard rock/mineral mining activities have greater potential for more
than minimal adverse effects on the aquatic environment than aggregate
mining activities. There are considerable differences in the impacts
associated with extracting and processing these
[[Page 39332]]
materials. Hard rock/mineral mining activities require processing that
may result in discharges of chemical compounds in the water column,
which can substantially alter water quality. Hard rock/mineral mining
activities often require a Section 402 National Pollution Discharge
Elimination System permit for effluent discharges associated with ore
processing techniques. Hard rock/mineral mining is authorized only in
isolated waters and non-tidal wetlands adjacent to headwater streams
(i.e., streams where the average annual flow is less than 5 cubic feet
per second). No hard rock/mineral mining is authorized in waters of the
United States within 100 feet of ordinary high water mark of streams.
The proposed NWP does not authorize hard rock/mineral mining, including
place mining, in any streams, including lower perennial riverine
systems. To protect streams and other open waters, we are proposing to
condition this NWP to prohibit beneficiation and mineral processing
within 200 feet of the ordinary high water mark of any open waterbody.
One commenter stated that the NWP should not authorize discharges
of fill material into waters of the United States for support features
such as haul roads, crushers or other ore processors, and berms. Two
commenters requested clarification concerning which stormwater
management facilities can be authorized as mining support activities
and which stormwater management facilities can be authorized under the
new NWP for stormwater management facilities.
Support facilities are essential components of a mining operation
and should be authorized as part of the single and complete mining
project. Support facilities authorized by this NWP include berms,
access and haul roads, rail lines, dikes, road crossings, settling
ponds and settling basins, ditches, stormwater and surface water
management facilities, head cut prevention, sediment and erosion
controls, and mechanized landclearing. District engineers will review
preconstruction notifications for mining activities authorized by this
NWP to determine if the mining activity, and any associated support
activities in waters of the United States, will result in more than
minimal adverse effects on the aquatic environment. Stormwater
management facilities that are required for a mining activity can be
authorized by this NWP as a support activity. District engineers will
determine on a case-by-case basis which types of stormwater management
facilities may be authorized by this NWP. Due to the proposed
modification of General Condition 15, this NWP usually would not be
combined with NWP 43 for stormwater management facilities, since the
maximum acreage loss cannot exceed the acreage limit of the NWP with
the highest specified acreage limit. Since NWP 44 has a limit of 1 acre
for support activities, including stormwater management facilities, NWP
43 cannot be used with NWP 44 to authorize a stormwater management
facility that results in the loss of greater than 1 acre of waters of
the United States.
Several commenters objected to the provision in this NWP that
requires measures to prevent adverse effects to groundwater resources,
stating that protection of groundwater is the responsibility of the
states. We agree with this comment, and have removed this provision
from the proposed NWP.
A large number of commenters stated that stream relocation and
diversion activities for aggregate mining activities should be
authorized in ephemeral and intermittent streams and small perennial
streams. One commenter requested that the Corps clarify whether the
phrase ``small perennial stream relocations'' refers to the size of the
stream to be relocated or the amount of stream to be relocated. One
commenter stated that channel relocation should not include decreasing
the length of the stream channel. Another commenter requested that the
Corps explain why other mining activities cannot be conducted in
intermittent and small perennial streams, other than relocation and
diversion. One commenter suggested that the Corps specify whether or
not the discharge of dredged or fill material into ephemeral or
intermittent streams is authorized by the stream relocation/diversion
provisions of the NWP. One commenter recommended prohibiting stream
relocation and diversion activities, as well as the construction of
berms, from this NWP.
Due to the potential for more than minimal adverse effects on the
aquatic environment, especially fish habitat, we have removed stream
relocation and diversion as a specific activity authorized by this NWP.
For the proposed NWP, in-stream aggregate mining activities are limited
to lower perennial streams (i.e., lower perennial riverine subsystems
described in the Cowardin classification system) and streams where the
average annual flow is 1 cubic foot per second or less. This NWP does
not authorize hard rock/mineral mining activities in streams, including
stream diversion or relocation. In stream segments where the average
annual flow is 1 cubic foot per second or less, the stream channel may
be excavated by the aggregate mining activity.
Acreage Limits: In the July 1, 1998, Federal Register notice, we
requested comments on the proposed acreage limit for this NWP. We
proposed 2 acre and 3 acre limits for the NWP. Two commenters supported
the 3 acre limit. Many commenters recommended the 2 acre limit. Several
commenters stated that a 3 acre limit is too high. Two commenters
suggested a limit of \1/4\ acre. Many commenters said that the 3 acre
limit is too low. One commenter suggested an acreage limit of 5 acres,
stating that mine operators are proficient at site reclamation and
wetland construction. Several commenters recommended a 10 acre limit
for this NWP. A large number of commenters advocated the use of a
sliding scale to determine the acreage limit for this NWP. Many
commenters recommended the use of a sliding scale similar to the one
proposed for NWP B for master planned development activities.
To ensure that this NWP authorizes only those mining activities
that result in minimal adverse effects on the aquatic environment, we
are proposing a 2 acre limit for a single and complete mining project.
We do not believe that it would be practical to utilize a sliding scale
to determine the acreage limit for this NWP, because a primary purpose
of a sliding scale is to encourage the prospective permittee to further
avoid and minimize losses of waters of the United States. For aggregate
and hard rock/mineral mining activities, on-site avoidance and
minimization is more difficult to accomplish because the miners need to
extract materials from specific areas (i.e., where sufficient
aggregates have accumulated or where the densest deposits of ore are
located) and in quantities sufficient to make the mining activity
economically feasible.
One commenter stated that different acreage limits for different
types of waters is too confusing and suggested a single acreage limit
for the NWP. One commenter recommended that impacts to lower perennial
riverine systems, isolated wetlands, and dry washes and arroyos should
be limited to 1 acre. Another commenter suggested an average 1 acre
limit for each type of water listed in the NWP. One commenter asked why
the acreage limits for losses of open waters and wetlands was 2 acres
but the loss of intermittent and ephemeral stream bed was limited to 1
acre. Several commenters supported a higher acreage limit for
activities in ephemeral streams. One commenter stated that the 1 acre
limit for support
[[Page 39333]]
activities is too low for the permit to be useful.
We are proposing a single acreage limit for this NWP (i.e., 2 acres
for a single and complete project, including a maximum of 1 acre for
support activities). We have also simplified the applicable waters for
the proposed NWP. The acreage limit applies to all of the activities
authorized by this NWP, for a single and complete project. We believe
that the 1 acre limit for support activities is adequate. If the
project proponent requires additional impacts for support activities,
the mining activity may be authorized by another NWP, a regional
general permit, or an individual permit.
A commenter stated that the NWP should have similar acreage limits
to the other new NWPs, because there is no justification for more
restrictive limits. A number of commenters suggested imposing linear
limits on stream impacts. One commenter recommended a 250 linear foot
limit whereas another commenter recommended a 500 linear foot limit. A
few commenters supported the lack of a linear limit for stream impacts.
We believe that an acreage limit is more appropriate for mining
activities because the proposed NWP substantially limits the amount of
in-stream mining that can be authorized by this NWP. For aggregate
mining activities in streams where the average annual flow is 1 cubic
foot per second or less, the adjacent land will usually be mined with
the stream bed. This is another reason to use an acreage limit instead
of a linear foot limit. In addition, the use of acres instead of linear
feet to determine the limit for this NWP allows consistent application
of the NWP limits across the different categories of applicable waters.
Aggregate mining activities in lower perennial streams are adequately
assessed on a acreage basis since lower perennial streams tend to have
large channels.
One commenter stated that acreage limit calculations should be
based solely on the direct effects of the dredging or filling
activities, not indirect effects. One commenter said that a relocated
stream channel which duplicates the functions and values of the
original stream channel should not be considered a loss and should not
be counted towards the acreage limit of the NWP.
The acreage loss of waters of the United States that results from
filling, excavating, draining, or flooding is used to determine whether
the proposed work exceeds the terms and limits of the NWP (see the
definition of ``loss of waters of the United States'' in the
``Definitions'' section of the NWPs). This is the standard definition
used in the NWP program. Although stream relocation and diversion
activities no longer constitute a specific part of the proposed NWP,
these activities may occur in aggregate mining operations in streams
where the average annual flow is 1 cubic foot per second or less,
because the adjacent land will usually be mined with the stream bed.
The stream channel may be reestablished in a different location after
the mining activity is completed. Stream relocation and diversion
activities that fill and excavate the stream bed cause the loss of
waters of the United States. It may take years before the relocated or
diverted stream channel achieves similar aquatic functions to the
original stream channel. Any stream relocation and diversion activities
are included in the acreage loss measurement for this NWP.
Notification Thresholds: In the proposed NWP, preconstruction
notification (PCN) was required for all authorized activities. One
commenter concurred with this notification threshold. Several
commenters recommended imposing notification thresholds similar to the
other proposed NWPs. Two commenters suggested that PCNs should be
required for activities impacting 150 linear feet or more of stream bed
or \1/3\ acre or greater of wetlands. One commenter proposed that PCNs
should be required only for activities impacting 1 acre or more of
waters of the United States. A number of commenters suggested that the
PCN threshold for activities in dry washes and arroyos should be higher
than for activities in other types of waters. One of these commenters
recommended a 5 acre PCN threshold for activities in ephemeral streams,
with agency coordination for the loss of 10 acres or greater of
ephemeral stream bed. One commenter suggested agency notification for
mining activities impacting greater than \1/3\ acre. Another commenter
suggested extending the agency coordination period to 30 days to allow
those agencies to conduct a more thorough review of potential water
quality impacts.
We are proposing to retain the original PCN threshold for this NWP,
which requires preconstruction notification for all activities
authorized by this NWP. District engineers will review proposed mining
activities, including measures to minimize or avoid adverse effects to
waters of the United States and reclamation plans. This PCN requirement
is necessary to ensure that the NWP authorizes only those activities
with minimal adverse effects on the aquatic environment, individually
or cumulatively. Agency coordination will be conducted for mining
activities resulting in the loss of greater than 1 acre of waters of
the United States. Compliance with General Condition 9, including the
proposed requirement for a water quality management plan, will help
ensure that the authorized work will not result in more than minimal
adverse effects on local water quality.
Notification Requirements: In the proposed NWP E, the notification
was required to include a description of all waters of the United
States impacted by the project, a discussion of measures taken to
minimize or prevent adverse effects to waters of the United States, a
description of measures taken to comply with the conditions of the NWP,
and a reclamation plan.
One commenter supported the requirement that the applicant must
submit a reclamation plan with the PCN. A couple of commenters
recommended that the applicant should submit a statement from the
agency approving the reclamation plan. One commenter requested that the
Corps define the term ``reclamation plan'' and several commenters asked
the Corps to specify what should be included in the plan. One commenter
asked if the requirement for a reclamation plan refers to the complete
plan for the entire mining site that may be required by law or a plan
for restoring affected waters of the United States and providing
compensatory mitigation for the losses authorized by the NWP. Several
commenters stated that the requirement for a reclamation plan should be
eliminated. A number of commenters said that the reclamation plan
requirement is redundant with other Federal and state laws and should
not be included in the NWP.
The requirement for submission of a reclamation plan with the PCN
is not intended to supersede other Federal or State requirements. The
District Engineer will not require reclamation per se, but will review
the reclamation plan to determine if compensatory mitigation is
required to offset losses of waters of the United States and ensure
that the individual or cumulative adverse effects of the mining
activity on the aquatic environment are minimal. The prospective
permittee may submit a statement from the Federal or State agency that
approves the reclamation plan, with a brief description of reclamation
plan, especially the type and quantity of aquatic habitats such as
wetlands and streams that will be restored, enhanced, created, and/or
[[Page 39334]]
preserved for the mined land reclamation. If there are no Federal or
State requirements for a reclamation plan for a particular mining
activity, the applicant should state that fact in the PCN. The District
Engineer may require compensatory mitigation for that project, to
ensure that the adverse effects on the aquatic environment are minimal.
If the reclamation plan required by Federal or State law adequately
addresses compensation for losses of waters of the United States, then
the District Engineer will not require additional compensatory
mitigation, unless there are additional concerns for the aquatic
environment.
A large number of commenters stated that the reclamation plan
requirement needs to be changed because some mining activities, such as
in-stream dredging, do not require reclamation. In addition, these
commenters were unsure if this requirement applies to mining activities
outside of the Corps jurisdiction. For land-based aggregate mining,
reclamation may be required at the end of the mining activity, but the
mining activity may occur for many years. These commenters expressed
concern that when a prospective permittee applies for authorization
under NWP E, reclamation for previously authorized mining activities
may not be completed. One commenter said that the NWP should contain
more specific reclamation requirements. This commenter believes that
the mining company should be required to submit a reclamation plan for
each phase of a large mining operation, as each phase proceeds. This
commenter also recommended that the mining site should be restored
within a year after operations cease, if possible. One commenter stated
that the Corps ability to deny NWP authorization based on failure to
complete reclamation for previously authorized activities exceeds the
Corps authority because it is not reasonably related to water quality
or the discharge of dredged or fill material. One commenter said that a
mining activity that may be eligible for authorization by NWP may not
have done any reclamation, but is still in compliance with its
reclamation plan. This commenter said that it is unreasonable to
require the submission of a separate reclamation plan because of the
regulatory oversight by other agencies.
For those mining activities that do not require reclamation, the
applicant should include a statement in the PCN that neither State nor
Federal regulations require reclamation for the proposed mining
activity. If there are portions of a mining activity outside of the
Corps jurisdiction (e.g., mining of upland areas), it is unnecessary
for the prospective permittee to submit a reclamation plan for those
activities. Long-term single and complete mining projects may be
authorized by this NWP, provided terms and conditions of the NWP are
met. The applicant can submit a conceptual reclamation plan with the
PCN or a statement describing the reclamation plan and intended
schedule, if the reclamation will not take place until after the long-
term mining activity. The Corps can deny NWP authorization if the
prospective permittee has not complied with the terms and conditions of
previous Corps permits, such as requirements to restore affected waters
of the United States.
Conditions of the NWP: One commenter stated that the measures to
minimize stream impacts are too vague and inadequate to protect stream
stability and integrity. A commenter objected to this NWP, stating that
the authorized work results in significant changes in stream morphology
and the NWP should require specific measures to prevent those
significant changes. Another commenter recommended modifying the
prohibition against excavating fish spawning areas or shellfish beds to
require avoidance of activities causing degradation of these habitats
through excavation, filling, sedimentation caused by upstream work, or
other harmful activities. One commenter recommended adding the phrase
``where practicable'' in the requirement for necessary measures to
prevent increases in stream gradient for mining activities in dry
washes and arroyos. Another commenter stated that the conditions of
this NWP are unenforceable, because field verification of spawning
areas must be done by agency personnel with expertise in that area. One
commenter stated that the use of NWP E would result in non-compliance
with Section 402 of the Clean Water Act.
The conditions of the proposed NWP that require measures to
minimize stream impacts will help ensure that the aggregate mining
activities authorized by this NWP will result in minimal adverse
effects on the aquatic environment. The size of streams in which this
NWP can be used has been substantially reduced, which will also protect
the stability and integrity of streams. For example, paragraph (e) of
the proposed NWP requires the permittee to implement measures to
prevent increases in stream gradient and water velocities to prevent
adverse effects to channel morphology. This requirement allows the
aggregate miner to remove only the upper surface of the stream bed to
extract the sand, gravel, and crushed and broken stone. Aggregate
mining is authorized only in lower perennial streams or those stream
segments where the average annual flow is 1 cubic foot per second or
less. In lower perennial streams, larger amounts of sand can be removed
without substantially altering stream gradient and water velocities
because these streams tend to occur on land with gentler slopes.
Paragraph (e) requires the permittee to conduct the mining activity so
that the authorized work does not have more than minimal adverse
effects on channel morphology downstream of the site of the in-stream
mining activity.
Paragraph (d) of the proposed NWP states that the authorized
activity must not substantially alter the sediment characteristics of
concentrated shellfish beds or fish spawning areas, either through
discharges of dredged or fill material or sediment that was suspended
in the water column by work upstream of the shellfish bed or fish
spawning area. We are proposing to modify General Condition 20,
Spawning Areas, to require that activities authorized by NWP cannot
physically destroy important spawning areas by smothering those areas
with suspended sediment generated upstream. In other words, an in-
stream mining activity authorized by this NWP must be conducted so that
it does not generate a cloud of suspended sediment that will move
downstream and smother important spawning areas.
District engineers will rely on local knowledge, including any
available documented locations of important spawning habitat and
concentrated shellfish beds to ensure compliance with paragraph (d) and
General Conditions 17 and 20. Federal and State natural resource
agencies may have maps of these areas that district engineers can use
during their review of PCNs for these activities. Division engineers
can also regionally condition this NWP to restrict or prohibit its use
in designated waterbodies that contain important fish spawning areas or
shellfish beds. Authorization of mining activities by this NWP does not
preclude the permittee from complying with the requirements of Section
402 of the Clean Water Act.
Use of this NWP with other NWPs: Many commenters supported the use
of this NWP with other NWPs because of the acreage limits of NWP 44.
One commenter recommended that the use of NWP E with other NWPs should
be allowed without imposing an acreage limit.
NWP 44 can be used with other NWPs, such as NWP 33, provided the
[[Page 39335]]
NWPs authorize a single and complete project and comply with the
proposed modification of General Condition 15, Use of Multiple
Nationwide Permits.
Mitigation Requirements: Some commenters said that the compensatory
mitigation requirements for this NWP were unclear in the July 1, 1998,
Federal Register notice. A number of commenters suggested the NWP
should require restoration when the mining activity is complete. A
couple of commenters said that on-site mitigation should be preferred
since the mining industry has demonstrated its ability to perform
successful mitigation. A few commenters stated that requiring
compensatory mitigation for these activities replicates State law and
exceeds the mitigation requirements for other activities. A couple of
commenters stated that the NWP should include a requirement that the
permittee avoid or minimize impacts. A commenter suggested that
mitigation plans should include monitoring and evaluation standards to
assist agencies in evaluating the effectiveness of the mitigation.
Three commenters stated that lands which were not previously waters of
the United States and which develop wetland characteristics as a result
of mining reclamation should be eligible for compensatory mitigation
credit.
The July 1, 1998, Federal Register notice contained a general
statement that compensatory mitigation would normally be required for
NWP activities that require notification to the District Engineer. For
this NWP, compensatory mitigation may be provided through the
reclamation of the mined site, if reclamation is required by other
Federal or State laws. If reclamation is not required, the District
Engineer can require compensatory mitigation to offset losses of waters
of the United States resulting from the authorized work and ensure that
the adverse effects on the aquatic environment are minimal.
Compensatory mitigation can be provided through the establishment and
maintenance of vegetated buffers adjacent to streams and other open
waters, especially in the 100-foot wide zone where no aggregate or hard
rock/mineral mining activities can occur (see paragraph (k) and the
last paragraph of proposed NWP 44).
We are proposing to add a condition to this NWP requiring the
permittee to avoid and minimize discharges into waters of the United
States to the maximum extent practicable and to include a statement
detailing compliance with this condition with the PCN (see paragraph
(c)). Compensatory mitigation requirements, including monitoring and
evaluation standards, are at the discretion of district engineers. Mine
operators that create wetlands in uplands as part of a reclamation plan
can use those created wetlands as compensatory mitigation for other
activities that result in the loss of wetlands, if those created
wetlands are self-sustaining and the land will not be reverted to
uplands in the future. However, it is at the discretion of the District
Engineer to determine, on a case-by-case basis, if those areas can be
used as compensatory mitigation.
A couple of commenters said that mitigation requirements for
activities in ephemeral streams should be less because these areas
provide minimal aquatic resources. Another commenter stated that
compensatory mitigation requirements should specify in-kind stream
replacement. One commenter said that compensatory mitigation in excess
of a 1:1 ratio is unfair. Another commenter stated that mitigation
requirements should be the same as for proposed NWPs A and B. One
commenter expressed concern that mining activities will result in
substantial cumulative impacts, and recommended that the Corps
encourage mining companies to create on-site mitigation banks to
compensate for losses of waters of the United States before they occur
as a result of the mining activity. A couple of commenters believe that
mine reclamation results in waters with higher value than the impacted
waters and that it is counterproductive to place restrictive conditions
on this NWP. Two commenters suggested that the creation of vegetated
littoral shelves should count towards satisfying mitigation
requirements.
Specific compensatory mitigation requirements will be determined on
a case-by-case basis by district engineers. We do not believe that it
is practical to require mining companies to create on-site mitigation
banks to compensate for losses of waters of the United States before
the mining activity is conducted. Mined land reclamation, if required,
can address compensation for losses of waters of the United States, if
the District Engineer determines that the reclamation adequately
offsets losses of waters of the United States.
Clarification of Jurisdiction: In the July 1, 1998, Federal
Register notice, we requested comments on a position intended to
clarify a long-standing jurisdictional debate as to what areas should
be considered waters of the United States as a result of mining,
processing, and reclamation activities. In the July 1, 1998, Federal
Register notice, we proposed the following position:
``Water-filled depressions and pits, ponds, etc., created in any
area not a ``water of the United States,'' as a result of mining,
processing, and reclamation activities, shall not be considered
``waters of the United States'' until one of the following occurs:
(1) All construction, mining, or excavation activities,
processing activities and reclamation activities have ceased and the
affected site has been fully reclaimed pursuant to an approved plan
of reclamation; or
(2) All construction, mining, or excavation activities,
processing activities and reclamation activities have ceased for a
period of fifteen (15) consecutive years or the property is no
longer zoned for mineral extraction, the same or successive
operators are not actively mining on contiguous properties, or
reclamation bonding, if required, is no longer in place; and the
resulting body of water and adjacent wetlands meet the definition of
``waters of the United States'' (33 CFR 328.3 (a)).''
We received many comments concerning the proposed position. Many
commenters supported the proposed position, including the 15-year term.
One commenter recommended incorporating that text into NWP E. Another
commenter supported the proposed position, but suggested that the text
include a provision stating that water-filled depressions will not be
considered waters of the United States as long as the area is actively
mined, including reclamation activities.
We do not believe it is necessary to incorporate the text of this
position into the text of NWP 44. The position clearly requires that
the mining activity must have stopped, and the reclamation completed,
before the area can be considered a water of the United States.
Several commenters opposed this clarification, because borrow pits
can be idle for many years before they are used again for mining
activities. One commenter objected to the proposed position, stating
that it is a constitutional taking of property, especially since the
Corps has taken the position that water-filled depressions on landfill
caps are not waters of the United States. One commenter believes that
the proposed position is too restrictive. Another commenter objected to
the proposed position, stating that these water-filled depressions
become valuable habitats and help compensate for mining damages. A
commenter opposed this position because it contradicts the national
goal of net wetland gains advocated in the Clean Water Action Plan. One
commenter stated that the Corps should assert jurisdiction over areas
subject to voluntary abandoned mine land
[[Page 39336]]
reclamation only when they are accepted by the Corps as compensatory
mitigation for unavoidable impacts and losses caused by mining
activities.
The purpose of imposing a specific time period in the text of this
position is to ensure that it is consistently applied throughout the
country and provide certainty for the regulated public. This position
is not contrary to the Clean Water Action Plan. It is intended to
comply with the Administration's wetlands plan by providing fairness to
the regulated public. By stating a specific time period, mining
companies can anticipate when the water-filled depressions they have
created can be considered waters of the United States, if the area
meets the definition of ``waters of the United States'' at 33 CFR Part
328. The development of water-filled depressions on landfill caps and
the creation of water-filled depressions as a result of mining
activities are completely different situations, and have substantially
different public interest and health implications. Water-filled
depressions on landfill caps are not waters of the United States, as
stated elsewhere in this Federal Register notice. The repair of the
landfill cap is necessary to reduce air and groundwater pollution. In
contrast, water-filled depressions created by mining activities can
develop into waters of the United States, and provide valuable
functions, such as waterfowl habitat. Activities that create aquatic
habitats from upland areas are not limited to compensatory mitigation
activities.
Two commenters said that the water-filled depressions should be
considered waters of the United States 2 years after the mining
operation ceases. A number of commenters recommended a 5 year period
before those areas are considered waters of the United States. Two of
these commenters said that a 5 year period is consistent with the
current regulatory interpretations of ``normal circumstances.'' One
commenter expressed concern that the 15 year period is too long, and
would set an inappropriate precedent for the rest of the regulatory
program. One commenter suggested that there should be no time limit.
For the purpose of consistency in the regulatory program, we are
proposing to change the time period from 15 years to 5 years. The 5-
year time period was chosen because a 5-year period is used by the
Natural Resources Conservation Service to determine if an area has been
abandoned for the purposes of making a wetland determination. If prior
converted cropland has not been maintained for a 5 year period and
wetland characteristics have developed, then that site is no longer
considered prior converted cropland. Therefore, for both agricultural
and mining activities, if the area has not been used for any of those
purposes for 5 years or longer, it can be considered abandoned, and if
the area has developed characteristics of waters of the United States,
including wetlands, during that period of abandonment, the area will be
subject to Section 404.
One commenter was uncertain whether the proposed position is
intended to be prospective, retroactive, or both. A commenter suggested
modifying the definition of ``waters of the United States'' to include
water-filled depressions created as a result of any extraction
activities. A commenter stated that the zoning of the land, the mine
operator, and reclamation bonding are irrelevant to the status of the
mining pits as waters of the United States. One commenter requested
that paragraph (1) contain the phrase ``* * * reclamation bond release
has been obtained, if such bond exists * * *'' after the phrase ``* * *
site has been fully reclaimed * * *.'' This commenter also recommended
adding a definition of the word ``cease'' to the text, because there
may be different interpretations as to when the 15-year period started.
This commenter also stated that not all property is zoned for mining
and this requirement may cause confusion if zoning is necessary to
determine if an area is a water of the United States. Another commenter
stated that paragraph (2) is difficult to understand and should be
rewritten to make it clearer. One commenter recommended that the 15-
year time period should apply to mining sites requiring reclamation as
well as those mining sites that do not require reclamation.
This proposed position will take effect on the effective date of
this NWP. If a jurisdictional determination is conducted on an area
that was previously mined, then this position will be used to help
determine if the area can be considered a water of the United States or
is part of an on-going mining operation and not a water of the United
States. This position is applicable only to mining activities, not
other types of extraction activities. The preamble to 33 CFR Part 328.3
in the November 13, 1986, Federal Register notice (51 FR 41206-41260)
adequately addresses water-filled depressions created by other
extraction activities. We do not believe it is necessary to add
language addressing the release of the bond, because the important
criterion is whether the site has been fully reclaimed. A definition of
the term ``cease'' is not needed, because it is the same definition in
common usage. The 5-year period will start when all construction,
mining, extraction, processing, and reclamation activities have
stopped. The zoning of the land is only one criterion that may be used
to determine if a site will continue to be mined. The zoning
classification is not necessary to determine if an area is a water of
the United States. If a tract of land was previously zoned for mining,
and that zoning classification was changed to residential, then the
District Engineer would use that information to determine that the
mining activity has ceased. This position applies to all mining sites,
whether or not reclamation is required.
One commenter stated that voluntary abandoned mined land
reclamation and remining can facilitate abandoned mined land
reclamation and result in water quality improvements in the watershed.
This commenter believes that if the Corps considers artificial waters
constructed for voluntary abandoned mined land reclamation and remining
to be waters of the United States, it would deter voluntary reclamation
and/or remining because of permit burdens and mitigation costs. Two
commenters suggested that the Corps assert jurisdiction over water-
filled depressions only when they have been accepted as compensatory
mitigation. One commenter recommended that NWP 21 contain this position
statement.
We do not believe that the proposed position will discourage
voluntary abandoned mined land reclamation, especially if such
reclamation can be used as a mitigation bank. NWP 27 can be used to
authorize wetland enhancement, restoration, and creation activities in
waters of the United States in areas that may have been previously
mined. We do not agree that only areas accepted as compensatory
mitigation should be considered waters of the United States. District
engineers can use this position to determine if an area is a water of
the United States in conjunction with mining activities authorized by
NWP 21.
Based on the comments discussed above, we are proposing to modify
the position to make it easier to read, as follows:
``Water-filled depressions (e.g., pits, ponds, etc.) created in
any area not previously considered a ``water of the United States,''
as a result of mining, processing, and reclamation activities, shall
not be considered ``water a of the United States'' until one of the
following situations occurs:
(1) All construction, mining, excavation, processing, and
reclamation activities have
[[Page 39337]]
ceased and the affected site has been fully reclaimed pursuant to an
approved reclamation plan; or
(2) The resulting body of water and adjacent wetlands meet the
definition of ``waters of the United States'' (see 33 CFR Part 328.3
(a)), and any one of the following criteria are met:
(a) all construction, mining, excavation, processing, and
reclamation activities have ceased for a period of five (5)
consecutive years; or
(b) the property is no longer zoned for mineral extraction; or
(c) the same or successive operators are not actively mining on
contiguous properties; or
(d) reclamation bonding, if required, is no longer in place.''
The only substantive change in the position is changing the time period
from 15 years to 5 years, as discussed above.
Recommended Additional Conditions: Several commenters suggested
additional conditions to incorporate into this NWP. Many of these
suggestions are best addressed through the regional conditioning
process, so we will only address those recommendations that have
national applicability in this section.
One commenter suggested that the NWP should not be used in
watersheds with substantial historic aquatic resource losses. Another
commenter recommended that the NWP should contain a condition
addressing the disposal of dredged or excavated material, wastes from
washing minerals, and resuspension of stream bed materials that may be
contaminated. One commenter suggested prohibiting the NWP in areas
inhabited by State-listed endangered or threatened species, species of
special concern, or wild trout. A commenter recommended that the NWP
contain a provision requiring zero pollutant runoff or groundwater
contamination from the site, as well as a bond to cover expenses
incurred by surrounding communities if the mine is abandoned. One
commenter recommended adding a condition to the NWP requiring that the
current mine site must be successfully reclaimed prior to receiving
another Section 404 permit for another mining activity in the same
stream reach, and limiting the losses within that stream reach to 2
acres.
Division and district engineers can condition this NWP to prohibit
or restrict its use in areas where the individual and cumulative
adverse effects of Section 404 activities on the aquatic environment
may be more than minimal. A Section 402 permit, if required, should
address discharges of wastes from washing materials and runoff from
processing areas. District engineers can exercise discretionary
authority to restrict or prohibit the use of this NWP to conduct mining
activities that will result in the suspension of contaminated sediments
in the water column. This issue can also be addressed in the water
quality management plan required for activities authorized by this NWP
(see General Condition 9). District engineers will review PCNs for
proposed mining activities to determine which mining activities
constitute separate single and complete projects with independent
utility.
Additional Issues: A number of commenters recommended removing all
references to excavation from the NWP. Another commenter stated that
the proposed NWP appears to violate the invalidation of the Tulloch
rule. One commenter suggested that the final NWP clarify that proposed
mining activities will be reviewed on a case-by-case basis to determine
if there is a discharge regulated under Section 404 of the Clean Water
Act.
Excavation activities can result in discharges of dredged or fill
material into waters of the United States. Many of these activities
were regulated under Section 404 of the Clean Water Act prior to the
implementation of the Tulloch rule in 1993. Therefore, we have not
removed references to excavation from this NWP. District engineers will
review PCNs to determine if the proposed mining activity requires a
Section 404 permit.
A number of commenters said that this NWP should contain a
provision requiring the prospective permittee to demonstrate that the
work complies with the National Historic Preservation Act. One of these
commenters objected to the proposed NWP, stating that mining activities
have resulted in the destruction of numerous archeological sites
eligible for listing in the National Register of Historic Places.
General Condition 12 already addresses this issue. This general
condition requires compliance with the requirements of the National
Historic Preservation Act prior to commencing the authorized activity.
A number of commenters stated that the NWP 26 data collected by the
Corps for mining activities is misleading because the data has been
collected for only a short time, the 500 linear foot limit for filling
or excavating stream beds in NWP 26 made many mining activities
ineligible for NWP 26 authorization, and the Tulloch decision and
enforcement policy has been inconsistently implemented.
Although data concerning mining activities authorized by NWP 26 has
been collected for only a short period of time, we believe that this
data can be used to provide estimates of the potential losses of waters
of the United States that may be authorized by this NWP, since the
scope of applicable waters is more restrictive than for NWP 26 (with
the exception of aggregate mining activities in lower perennial
streams). In our environmental assessment for this NWP, we will
consider additional sources of information to estimate future impacts.
One commenter recommended that this NWP should include a definition
of a single and complete project. Another commenter suggested that the
term ``mining'' should be clarified, since mining in Florida refers to
the excavated material leaving the mining site; under Florida's
definition the extraction of material for on-site grading and filling
would not be considered mining. One commenter recommended that the
Corps develop a separate NWP for reclamation projects authorized under
Title IV Abandoned Mine Land Program of the Surface Mining Control and
Reclamation Act of 1977 or equivalent State laws.
The term ``single and complete project'' is already defined at 33
CFR Part 330.2(i). The District Engineer will determine if the proposed
activity constitutes mining for the purposes of this NWP. This NWP
authorizes reclamation activities in waters of the United States
associated with the mining activity.
This NWP is subject to proposed General Conditions 25, 26, and 27,
which will substantially reduce its applicability. General Condition 25
prohibits the use of this NWP to authorize discharges into designated
critical resource waters and wetlands adjacent to those waters. General
Condition 26 prohibits the use of this NWP to authorize discharges
resulting in the loss of greater than 1 acre of impaired waters,
including adjacent wetlands. NWP 44 activities resulting in the loss of
1 acre or less of impaired waters, including adjacent wetlands, are
prohibited unless prospective permittee demonstrates to the District
Engineer that the activity will not result in further impairment of the
waterbody. Notification to the District Engineer is required for all
discharges into impaired waters and their adjacent wetlands. General
Condition 27 prohibits the use of NWP 44 to authorize permanent, above-
grade fills in waters of the United States within the 100-year
floodplain.
The proposed NWP will be used to authorize aggregate and hard rock/
mineral mining activities in certain waters of the United States,
including
[[Page 39338]]
wetlands. In response to a PCN, district engineers can require special
conditions on a case-by-case basis to ensure that the adverse effects
on the aquatic environment are minimal or exercise discretionary
authority to require an individual permit for the work. The issuance of
this NWP, as with any NWP, provides for the use of discretionary
authority when valuable or unique aquatic areas may be affected by
these activities. Proposed NWP E is designated as NWP 44, with the
modifications discussed above.
IV. Comments and Responses on Nationwide Permit Conditions
A. Consolidation of General Conditions and Section 404 Only Conditions
In an effort to ensure consistent application of the conditions for
the NWPs, we proposed in the July 1, 1998, Federal Register notice to
consolidate the ``General Conditions'' and ``Section 404 Only''
conditions into one set of general conditions for the NWPs. This
consolidation is practical because most of the Section 404 Only
conditions apply to activities in Section 10 waters. This consolidation
does not increase the scope of analysis for determining if a particular
project qualifies for authorization under the NWP program. As a result
of the number of comments we received in favor of this consolidation,
all of the NWP conditions will be combined into one ``General
Conditions'' section in the NWPs. The opening language of former
Section 404 Only conditions 1, 2, 3, 4, 5, 7, and 8 (now designated as
General Conditions 16, 17, 18, 19, 20, 22, and 23, respectively) has
been modified to read ``activity [or activities], including structures
and work in navigable waters of the United States and discharges of
dredged or fill material,'' to reflect their application in Section 10
waters. Due to the changes in the NWP general conditions discussed
below, the numbers of some general conditions differ from the numbering
scheme in the July 1, 1998, Federal Register notice.
B. Comments on Specific General Conditions
In response to the July 1, 1998, Federal Register notice we
received many comments on specific NWP general conditions. As a result
of our review of those comments, we are proposing some changes to the
NWP general conditions, as discussed below. Any changes made to the NWP
general conditions will apply to all of the NWPs, including the
existing NWPs issued in the December 13, 1996, Federal Register notice
(61 FR 65874-65922), when the proposed new and modified NWPs become
effective.
4. Aquatic Life Movements: One commenter requested that we
eliminate the word ``substantially'' from Condition 4. Another
commenter recommended replacing the phrase ``substantially disrupt''
with ``more than minimally disrupt.''
We recognize that most work in waters of the United States will
result in some disruption of movement of those aquatic species that are
indigenous to, or pass through, those waters. District engineers will
determine if an NWP activity results in substantial disruption of the
movement of aquatic organisms. The word ``substantially'' has been
retained in this general condition. We are also proposing to add a
sentence to this general condition to require that if culverts are
placed in a stream as part of the authorized work, they must be
installed so that low stream flows will continue to flow through the
culverts.
9. Water Quality: In the July 1, 1998, Federal Register notice, we
proposed to modify General Condition 9 by changing its title from
``Water Quality Certification'' to ``Water Quality'' and changing the
text of the general condition to require a water quality management
plan for activities authorized by existing NWPs 12, 14, 17, 18, 21, 32,
and 40 and the new NWPs 39, 42, 43, and 44 (proposed as NWPs A, D, C,
and E, respectively; NWP B was later withdrawn from the new and
modified NWPs) if such a plan is not required by the State or Tribal
401 water quality certification. The purpose of the water quality
management plan is to ensure that the project will have minimal adverse
effects on the aquatic environment, especially by preventing or
reducing adverse effects to downstream water quality and aquatic
habitat. An important part of a water quality management plan can be
the establishment and maintenance of vegetated buffers adjacent to
waters of the United States.
The majority of the commenters asserted that the Corps had no
statutory authority to impose Section 401 and Section 402 requirements
for water quality and storm water management plans and stated that
these requirements overlap or duplicate, and often conflict with, State
water quality certification and National Pollutant Discharge
Elimination System (NPDES) programs. One commenter stated that the
Section 401 water quality certification must be issued prior to
initiating the work under the NWP, which makes the Corps imposition of
these additional requirements under this general condition redundant
and unnecessary. Another commenter stated that these requirements would
significantly add to the regulatory burden of permit applicants and
increase the Corps workload. Several commenters stated that requiring a
water quality management plan would increase the scope of the NWP
program beyond the expertise of Corps regulatory personnel.
A goal of the Clean Water Act, which provides the Corps with its
authority to regulate discharges of dredged or fill material into
waters of the United States, is to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters. We believe
that the requirement for a water quality management plan to prevent or
reduce adverse effects to water quality as a result of work authorized
under Section 404 of the Clean Water Act is within our statutory
authority. However, the terms of the proposed modification of this
general condition are not intended to replace existing State or Tribal
Section 401 requirements, if those programs adequately address water
quality concerns. Instead, the requirements of the general conditions
provide the Corps the opportunity to protect or improve local open
water quality. In states with strong water quality programs, district
engineers will defer to State and local requirements and will not
require water quality management plans as special conditions of NWP
authorizations. If the 401 agency does not require adequate measures to
protect downstream water quality, we have the authority to require
measures, including the construction of stormwater management
facilities or the establishment or maintenance of vegetated buffers
adjacent to waters of the United States, that will minimize adverse
effects to downstream water quality. If the adverse effects to local
water quality resulting from the proposed work are minimal without the
need for the implementation of a water quality management plan, then
such a plan is not required. This general condition is not an absolute
requirement because the criterion is minimal degradation, not no
degradation. If a project proponent does not want to implement a water
quality management plan, and the plan is necessary to ensure that the
NWP authorizes only minimal adverse effects on the aquatic environment,
then he or she can apply for an individual permit.
The language of the proposed modification of this general condition
is intended to allow flexibility and minimize the amount of information
necessary to determine compliance with its requirements. District
engineers will use their discretion to qualitatively
[[Page 39339]]
determine if a particular project complies with this general condition
and will not require extensive analysis or review. Detailed studies
will not be required. If a water quality management plan is unnecessary
due to the nature of the work and the surrounding area, then the plan
is not required. For example, the District Engineer may determine that
a water quality management plan is not required for an activity in a
watershed that is not substantially developed. If a water quality
management plan is required by the District Engineer for a particular
NWP authorization, it does not increase the Corps scope of analysis.
For example, if the permit area includes an entire subdivision, the
District Engineer will determine if a water quality management plan is
necessary to address impacts to water quality resulting from the
construction and use of the subdivision. However, if a Corps permit is
required only for a small portion of the development, such as a single
road crossing to provide access to an upland development, the water
quality management plan will not apply to the entire project site.
District engineers cannot require a water quality management plan for a
poorly designed upland development. By limiting our analysis to the
qualitative assessment of compliance with this general condition, the
increase to the Corps workload will be minor and compliance will be
easily assessed by Corps regulatory personnel.
Many commenters recognized the importance of vegetated buffers and
agreed that they should be required. One commenter stated that the
general condition should not require the establishment of vegetated
buffers. Another commenter stated that this general condition would
needlessly take private property without compensation. One commenter
stated that this condition would cause unreasonable financial burdens
on NWP applicants and that future landowners cannot be expected to know
if areas adjacent to waters of the United States are upland mitigation
areas required for the NWP authorization or the proper width of the
buffers. One commenter asked if drainage districts would be allowed to
clear the buffer areas and to place excavated material on these areas
during future ditch maintenance activities.
We are proposing to modify the general condition to provide
district engineers with the flexibility to determine whether or not the
establishment or maintenance of a vegetated buffer adjacent to open
waters is necessary. The requirement for a water quality management
plan does not constitute a taking of private property. It is merely an
NWP condition that will help ensure that the authorized activity causes
only minimal adverse effects to water quality. This requirement still
allows the landowner viable economic use of his or her property. If the
District Engineer determines that a water quality management plan is
necessary to ensure that the activities authorized by NWPs result only
in minimal adverse effects on water quality, and the landowner or
developer does not want to implement the water quality management plan,
then he or she can request authorization through the individual permit
process. NWPs are optional permits, and anyone who does not want to
comply with the terms and limits of the NWPs can request authorization
through either a regional general permit, if available for the proposed
activity, or an individual permit. We disagree that the requirement for
a water quality management plan will result in unnecessary financial
burdens on the regulated public.
Project-specific requirements for vegetated buffers adjacent to
waters of the United States should be incorporated into NWP
authorizations as special conditions, based on site conditions.
Vegetated buffer requirements may also be regional conditions of the
NWPs. The vegetated buffer requirements will be included in the NWP
authorization issued to the project proponent, either as special or
regional conditions. The NWP authorization will include a description
of the width and composition of the vegetated buffer and may contain a
plan of the project site showing the location and extent of those
buffers. These documents will ensure that the permittee knows the
location and extent of those buffers. Since the establishment and
maintenance of vegetated buffers adjacent to waters of the United
States can be considered as a form of out-of-kind compensatory
mitigation for authorized losses of waters of the United States,
district engineers may require the protection of vegetated buffers by
conservation easements, deed restrictions, or other forms of legal
protection.
If a drainage district needs to periodically remove sediments from
a waterway where vegetated buffers were established as a condition of
an NWP authorization, and those vegetated buffers are protected by a
conservation easement or other legal means, the drainage district must
notify the District Engineer of its intent to remove the vegetated
buffer to conduct the maintenance activity. The drainage district may
be required to reestablish of the vegetated buffer upon completion of
the maintenance work.
One commenter recommended modifying the general condition to
require vegetated buffers adjacent to all waters of the United States,
not just open waters, because of the scientific support for buffers
adjacent to wetlands and open water as essential for maintaining
aquatic functions. One commenter requested a definition of the term
``vegetated buffer'' and that the Corps specifically state the width
required for the buffer zone. Two commenters suggested changing the
term ``vegetated buffer'' to ``permanently vegetated buffer.'' Some
commenters recommended requiring vegetated buffers to be composed of
native species. Another commenter recommended making this general
condition applicable to NWPs 19, 25, 33, 34, and 36. One commenter
stated that the concept of a wetland buffer is better suited for large
open space projects than it would be for linear road projects and
recommended eliminating buffer requirements from road projects within
existing right-of-ways. A commenter requested a definition of the term
``to the maximum extent practicable'' for the vegetated buffer
requirement. This commenter also stated that the vegetated buffer
requirement is inconsistent with channel relocation authorized by NWP
40 and the removal of undesirable species in NWP 27.
The purpose of the vegetated buffer requirement in this general
condition is to prevent more than minimal degradation of the water
quality of streams and other open waters. For that reason, we have not
included a requirement for vegetated buffers adjacent to wetlands. This
does not prevent district engineers from requiring the establishment
and maintenance of vegetated buffers adjacent to wetlands as conditions
of NWP authorizations. The width and species composition of the
required vegetated buffer is at the discretion of the District
Engineer. In a previous section of this Federal Register notice, we
recommend minimum widths for vegetated buffers, as well as the plant
sizes and species that should be used. These recommendations are merely
guidance; it is the District Engineer's decision as to what constitutes
an adequate vegetated buffer for the purposes of a specific NWP
authorization. Vegetated buffers should be as wide as possible. The
phrase ``to the maximum extent practicable'' provides district
engineers with flexibility. The vegetated buffer requirement is not
inconsistent with NWPs 40 and 27, because vegetated buffers can be
established by planting
[[Page 39340]]
appropriate species after drainage ditch or channel relocation
activities and the removal of undesirable plant species, such as
noxious weeds or invasive species. We have removed NWP 21 from the list
of NWPs that may require a water quality management plan, because Title
V of the Surface Mining Control and Reclamation Act already has a
similar requirement.
11. Endangered Species: In the July 1, 1998, Federal Register
notice, we did not propose any changes to this general condition. In
response to this Federal Register notice, one commenter requested that
the Corps define the phrase ``in the vicinity'' and another commenter
recommended deleting this phrase from the general condition.
The definition of this term is at the discretion of the District
Engineer for a particular Federally-listed endangered or threatened
species. The area defined as the ``vicinity'' varies from species to
species. For example, the ``vicinity'' of an endangered bird species
will be different from the ``vicinity'' of an endangered species of
orchid. The Standard Local Operating Procedures for Endangered Species
established between most Corps districts and the FWS and NMFS will
provide more effective protection of endangered and threatened species
and their critical habitat, and can provide local definitions of the
term ``vicinity.'' General Condition 11 contains provisions requiring
notification for activities in designated critical habitat. We are
proposing to modify General Condition 11 to clarify that the
notification is required for any NWP activity proposed in designated
critical habitat. We are proposing to add a provision to General
Condition 13, Notification, to require the prospective permittee to
provide the name(s) of the Federally-listed endangered or threatened
species that may be adversely affected by the proposed work.
12. Historic Properties: In the July 1, 1998, Federal Register
notice, the Corps did not propose any changes to this general
condition. Several commenters believe that General Condition 12
adequately address the Corps responsibilities under Section 106 of the
National Historic Preservation Act (NHPA). One commenter recommended
that the Corps require that prospective permittees submit with the PCN
either an inventory of historic properties prepared by a qualified
individual, a letter from the State Historic Preservation Officer
(SHPO) concerning potential impacts to historic properties, or some
other evidence that demonstrates that the requirements of NHPA have
been satisfied. One commenter requested that the notification contain a
statement concerning potential effects to historic property. Another
commenter stated that General Condition 12 should include a requirement
that the permittee notify the District Engineer of the discovery of any
artifacts or deposits that may constitute an eligible property while
the authorized work is in progress and take steps to protect those
potentially eligible properties until the requirements of NHPA are
fulfilled. One commenter suggested that if the permittee avoids adverse
effects to historic properties by incorporating those properties into
``open space'' or greenbelts on the project site, then those historic
properties must be protected by deed restrictions, protective
covenants, or other legal means as a condition of the NWP
authorization. Another commenter expressed concern as to how Tribal
coordination is conducted for potential effects to Tribal cultural or
historic resources.
We believe that the current wording of General Condition 12
adequately addresses compliance of the NWP program with NHPA. In 33 CFR
Part 325, Appendix C, the Corps has established the procedures
necessary to ensure compliance with Section 106 of the NHPA. This
general condition already requires that the prospective permittee
notify the District Engineer if the proposed work may affect historic
properties listed in, or may be eligible for listing in, the National
Register of Historic Places. The District Engineer will review the
notification and conduct any necessary coordination with the SHPO to
ensure compliance with NHPA. The prospective permittee cannot commence
work until the requirements of NHPA have been fulfilled. If the
permittee discovers previously unknown historic properties during the
course of conducting the authorized work, he or she must stop work and
notify the District Engineer of the presence of previously unknown
historic properties. Work cannot continue under the NWP until the
requirements of NHPA have been fulfilled.
If the permittee avoids adverse effects to historic properties, we
cannot require the permittee to preserve those properties in open space
with a conservation easement or deed restriction. Tribal cultural
resources are subject to the same requirements as other cultural and
historic resources. The original wording of General Condition 12 will
be retained as published in the December 13, 1996, Federal Register (61
FR 68574-65922). We are proposing to add a provision to General
Condition 13, Notification, to require the prospective permittee to
state, in the PCN, which historic property may be affected by the
proposed work or to include a vicinity map indicating the location of
the historic property.
13. Notification: In the July 1, 1998, Federal Register notice, we
proposed to require notification for all of the new and modified NWPs,
with various notification thresholds, but in general most of these NWPs
had a PCN threshold of \1/3\ acre. We also proposed to conduct agency
coordination for discharges authorized by proposed NWPs A, B, C, E, and
40 that result in the loss of greater than 1 acre of waters of the
United States. Notifications for activities that result in the loss of
1 acre of waters of the United States or less would be subject to
Corps-only review. In this section, we will address only those comments
relating to the notification process; comments concerning PCN
thresholds for specific NWPs are addressed in the preamble discussions
for each NWP.
Several commenters stated that one PCN threshold should be applied
to all of the NWPs. We disagree, because one of the purposes of the PCN
process is to provide district engineers the opportunity to review
specific NWP activities to ensure that they will result only in minimal
adverse effects on the aquatic environment. There is a wide range of
activities that are authorized by the existing NWPs and the proposed
NWPs. Each of these activities may require different PCN thresholds
because they can have different adverse effects on the aquatic
environment. We have attempted to make the PCN thresholds for the
proposed NWPs as consistent as possible. Most of the proposed NWPs
require submission of a PCN for losses of greater than \1/4\ acre of
waters of the United States, but PCN thresholds for steam impacts vary
for these NWPs.
One commenter believes that notification should not be required for
projects where the Corps accepts compensatory mitigation plans for less
than 1 acre of wetland impact, for activities exempt under Section
404(f)(1) of the Clean Water Act, or for the removal of accumulated
sediments at stream crossings. Another commenter recommended that
notification should be required for all NWP activities where the State
has not issued an unconditional WQC. One commenter suggested that all
activities impacting stream beds or riparian zones should require a PCN
with agency coordination.
[[Page 39341]]
We disagree with these recommendations. We require notification for
NWP activities that may result in more than minimal adverse effects on
the aquatic environment. Activities that are exempt under Section
404(f)(1) of the Clean Water Act do not require a Section 404 permit
and are not subject to PCN requirements. For the proposed modification
of NWP 3, we are proposing to require notification for all removal of
accumulated sediments in the vicinity of existing structures (see the
preamble discussion for NWP 3). If an unconditional WQC has not been
issued for the NWP by the Section 401 agency, the State or Tribe will
have the opportunity to review each activity and determine if it
complies with State or Tribal water quality standards. Notification to
the Corps is unnecessary unless the Division Engineer regionally
conditions the NWP to require notification. The District Engineer will
review the PCN to determine if the proposed work complies with the
terms of the NWP and if any compensatory mitigation is necessary to
ensure that the authorized work results in minimal adverse effects on
the aquatic environment.
Several commenters addressed the 30-day PCN time period in
paragraph (a)(3) of General Condition 13. Two commenters supported the
30-day PCN time period for the new NWPs. One commenter recommended
deleting the 30-day time period because the project proponent should
not have to wait 30 days to receive an NWP authorization. One commenter
stated that the 30-day time period is unjustified and is contrary to
the intent of the NWP program. One commenter said that PCN time period
should be reduced from 30 days to 15 days. Three commenters stated that
the 30-day PCN time period is too short to conduct an adequate review
of the proposed work. One of these commenters recommended a 60-day time
period and another commenter suggested a 45-day time period.
The PCN time period provides fairness to the regulated public by
requiring the Corps to respond to PCNs in a timely manner. Due to the
higher workloads that are expected to result from the proposed new and
modified NWPs, we are proposing to change paragraph (a) of General
Condition 13 by increasing the PCN review period to 45 days for a
complete notification. The District Engineer will have 30 days from the
PCN receipt date to request additional information that is necessary to
make the PCN complete and begin the PCN review process. If the PCN is
incomplete, the District Engineer can make only one request for
additional information necessary to make the PCN complete. If the
applicant does not supply the requested information, the District
Engineer will not proceed with the PCN review and the applicant cannot
assume that the project is authorized by the NWP 45 days later. If the
applicant does not provide all of the requested information, the
District Engineer may notify the applicant, either by letter or
telephone, that the PCN is not complete and that the PCN review process
will not begin until all of the requested information is furnished to
the Corps. Upon receipt of a complete PCN, the District Engineer has 45
days to determine if the proposed work qualifies for authorization
under the NWP or exercise discretionary authority to require a standard
permit. If the District Engineer does not respond to the PCN within 45
days of receipt of a complete application, then the proposed activity
is authorized by NWP unless the District Engineer modifies, suspends,
or revokes the default NWP authorization in accordance with 33 CFR Part
330.5(d)(2).
Many commenters believe that the information requirements for PCNs
are too extensive and confusing. They requested that the Corps provide
a checklist to simplify the notification process. Three commenters
requested that the requirement for submission of a delineation of
special aquatic sites for certain NWPs be deleted from General
Condition 13. One of these commenters specifically recommended
excluding NWP 12 activities that are not subject to an acreage limit
from the delineation requirement. Another commenter stated that wetland
delineations are too costly to be required for PCNs.
The format of General Condition 13 clearly outlines the information
required for the notification process. Corps districts can, if they
choose to do so, provide a checklist with their permit applications to
help prospective permittees ensure that they have provided all the
required information. The proposed modifications to NWP 12 require the
submission of a delineation of special aquatic sites. We are proposing
to add NWP 7 to the list of NWPs that require submission of
delineations of special aquatic sites with the PCN. NWP 7 was added
because there may be some intake or outfall maintenance activities that
could adversely affect submerged aquatic vegetation beds.
A few commenters believe that the prospective permittee should not
be required to notify the National Ocean Service (NOS) for the
construction or installation of utility lines in navigable waters and
that this provision should be removed from General Condition 13. We
concur with this comment and are proposing to modify NWP 12 to require
the Corps to provide NOS with a copy of the PCN and NWP authorization,
so that NOS can chart the utility line to protect navigation.
We received many comments concerning interagency coordination of
PCNs. Some commenters stated that the Corps should not consider agency
comments for NWP activities. Other commenters suggested that agencies
should have the opportunity to comment on every PCN. One commenter
recommended that agency coordination should be conducted for all
activities authorized by NWPs. Several commenters pointed out
discrepancies between different discussions of the agency coordination
process in the July 1, 1998, Federal Register notice. In the preamble
discussion for the proposed modifications of General Condition 13, we
proposed to conduct agency coordination for NWPs authorizing discharges
resulting in the loss of greater than 1 acre of waters of the United
States. However, in the proposed revisions General Condition 13, we
specifically stated that agency coordination would be conducted only
for NWPs A, B, C, E, and 40, where the loss of waters of the United
States is greater than 1 acre and for NWPs 12, 21, 29, 33, 37, and 38,
regardless of the acreage loss. Many commenters stated that the agency
coordination period should be greater than 5 calendar days and some of
these commenters said that the Corps should provide responses to agency
comments. One commenter recommended that Tribes implementing the
Section 401 program should be included in the agency coordination
process. Two commenters requested that the Corps put the optional
agency coordination process back into General Condition 13, to allow
the Regional Administrator of EPA or the Regional Directors of FWS or
NMFS to request agency coordination for activities authorized by
certain NWPs.
We are proposing to modify the agency coordination thresholds in
paragraph (e) to require agency coordination for any NWP activity
requiring notification to the District Engineer that results in the
loss of greater than 1 acre of waters of the United States. Because of
the proposed modification of NWP 40, we have removed the provision for
coordination with the FWS for NWP 40 activities resulting in the loss
of greater than \1/3\ acre of playas, prairie potholes, and vernal
pools. We have not put the optional agency notification process
[[Page 39342]]
back into General Condition 13. We believe that agency coordination is
unnecessary for NWP activities resulting in the loss of 1 acre or less
of waters of the United States. Due to the increase complexity of the
NWPs, we have modified the time periods for agency coordination. With
the exception of NWP 37, these agencies will have 10 calendar days from
receipt of the PCN to notify the District Engineer that they intend to
provide substantive, site-specific comments within their area of
expertise. If so notified, the District Engineer will wait an
additional 15 calendar days before making a decision on the PCN.
Therefore, these agencies have up to 25 days to provide comments on a
PCN. Districts will involve any Tribes with Section 401 programs in the
agency notification process, if the proposed activity occurs in an area
subject to a Tribal Section 401 program.
One commenter recommended that the mitigation requirements in
paragraph (g) should explicitly state that compensatory mitigation must
fully offset permanent, temporary, and secondary losses of functions,
values, and acreage of aquatic resources to satisfy the ``no net loss''
goal of the Section 404 program. One commenter asked which functional
assessment method would be required for mitigation to determine
compliance with paragraph (g) of General Condition 13. A commenter
requested that the Corps provide compensatory mitigation guidelines for
permit applicants to help them better understand and comply with
compensatory mitigation requirements. One commenter suggested that the
Corps provide guidance for appropriate mitigation ratios. Another
commenter asked how the requirements of paragraph (g) of this general
condition differ from the analysis required by the Section 404(b)(1)
Guidelines. One commenter stated that vegetated buffers should not be
considered as compensatory mitigation. This commenter also said that in
lieu fee programs should not be used as compensatory mitigation.
For those NWP activities that require notification, district
engineers will determine if the proposed compensatory mitigation
adequately offsets losses of waters of the United States. To determine
if the proposed compensatory mitigation is appropriate, district
engineers will consider what is best for the local aquatic environment.
The District Engineer is not required to utilize a formal assessment
method. It would be inappropriate to issue national standards for
compensatory mitigation, because of the regional differences in aquatic
resource functions and values across the country. Nationwide permittees
are not required to fully offset losses of aquatic resource functions,
values, and acreage resulting from permanent, temporary, or secondary
impacts. For the NWP program, compensatory mitigation is necessary only
to ensure that the adverse effects of the authorized work on the
aquatic environment are minimal, individually or cumulatively. The ``no
net loss'' goal is not a statutory requirement of the Section 404
program. Other Federal wetlands programs, such as the Wetland Reserve
Program, help increase the quantity of the Nation's wetlands and
achieve the ``no net loss'' goal. Compensatory mitigation requirements
are established by district engineers on a case-by-case or district-
wide basis. Therefore, we will not establish national compensatory
mitigation guidelines. Compensatory mitigation requirements are
addressed in more detail elsewhere in this Federal Register notice.
Vegetated buffers are an important type of out-of-kind compensatory
mitigation that helps protect the quality of the local aquatic
environment, especially water quality. District engineers will consider
vegetated buffers as part of the compensatory mitigation required for
activities authorized by Section 404 permits. In paragraph (g) of
General Condition 13, we have specified that in lieu fee programs,
mitigation banks, and other consolidated mitigation approaches are
preferred methods of providing compensatory mitigation. In lieu fee
programs are an important means of providing consolidated compensatory
mitigation projects, especially in areas where mitigation banks are
uncommon.
For the NWP program, permittees are only required to avoid and
minimize impacts on-site to the maximum extent practicable. Off-site
alternatives analyses cannot be required for activities authorized by
NWPs because the NWPs authorize only those activities with minimal
adverse effects on the aquatic environment. If the adverse effects on
the aquatic environment are more than minimal, then the District
Engineer will exercise discretionary authority and require an
individual permit for the proposed work. In accordance with 40 CFR Part
230.7, each NWP is subjected to a Section 404(b)(1) Guidelines analysis
before it is issued, but that analysis is not conducted for each
activity authorized by the NWP.
One commenter recommended modification of General Condition 13 to
require, in addition to preconstruction notification, postconstruction
notification for all NWPs. Another commenter requested modification of
General Condition 13 to include requirements for the prospective
permittee to apply for water quality certification (WQC), in those
instances where WQC has been denied, once the notification process has
been completed.
We do not agree that postconstruction notification should be
required for all activities authorized by NWPs. We believe that General
Condition 9, Water Quality, adequately addresses the WQC requirements
for the NWPs.
14. Compliance Certification: We did not propose any changes to
this general condition, but one commenter recommended that this general
condition specify that the Corps will verify the certification by a
site visit within 90 days of receipt of the certification from the
permittee.
We disagree with this recommendation and will not incorporate it
into this general condition. Corps districts will review compliance
certifications at their discretion.
15. Use of Multiple Nationwide Permits: Although we did not propose
any changes to this general condition, we received many general
comments opposing the use of more than one NWP to authorize a single
and complete project. We also received comments opposing the provisions
of this general condition. One commenter recommended a prohibition
against the use of more than one NWP to authorize a single and complete
project that results in above-grade wetland fills. Another commenter
stated that the use of multiple NWPs for a project should be
unrestricted because of the low acreage limits of the NWPs and the
unlikely probability that projects authorized by more than one NWP
would result in significant adverse effects on the aquatic environment.
We are proposing to modify General Condition 15 to prohibit the use
of more than one NWP to authorize a single and complete project, except
when the acreage loss of waters of the United States is less than the
highest specified acreage limit for the NWPs used to authorize the
activity. For example, NWP 13 may be used with NWP 39 to authorize bank
stabilization in unvegetated tidal waters at the project site for the
construction of a 100-acre residential subdivision that will result in
the filling of non-tidal wetlands. In this case, the acreage loss of
waters of the United States cannot exceed the indexed acreage limit
under NWP 39. Since the project area is 100 acres, the maximum acreage
loss for this
[[Page 39343]]
particular project is 2.25 acres, and includes the subdivision,
attendant features, and bank stabilization.
We are also proposing to modify the title of this general condition
to more accurately describe its purpose. The previous title, ``Multiple
Use of Nationwide Permits'' implied that the general condition
addresses the use of an NWP more than once for a single and complete
project. By changing the title to ``Use of Multiple Nationwide
Permits,'' we believe that the title more accurately reflects its
purpose, which is controlling the use of more than one NWP to authorize
a single and complete project.
17. Shellfish Beds: We did not propose any changes to this general
condition, except to change it from a ``Section 404 Only'' condition to
a general condition and include activities in Section 10 waters, as
discussed above. During our review of the comments received in response
to the July 1, 1998, and October 14, 1998, Federal Register notices, we
determined that this general condition requires clarification to ensure
that the NWPs do not authorize activities that may result in more than
minimal adverse effects on shellfish. In the text of the general
condition we are proposing to change the word ``production'' to
``populations'' because the word ``production'' is too limiting and the
condition should apply to all areas of concentrated shellfish
populations, not just where shellfish are harvested commercially. This
general condition was previously entitled ``Shellfish Production.'' We
are proposing to modify the title of this general condition to
``Shellfish Beds'' to reflect the proposed change in the general
condition.
18. Suitable Materials: We did not propose any changes to this
general condition, except to include activities in Section 10 waters of
the United States, as discussed above. One commenter requested that the
general condition prohibit the use of asphalt, tires, and construction
and demolition debris. Another commenter supported the current wording
of the general condition, provided it does not authorize the use of
fill that contains deleterious materials, such as trash. One commenter
recommended modifying this general condition to state that materials
used in construction must not be cumulatively toxic, even though they
may not be toxic in the amounts discharged for the project.
This NWP condition already contains examples of material that are
considered unsuitable, such as trash, debris, car bodies, and asphalt.
It is impractical to provide a comprehensive list of unsuitable
materials. District engineers will determine on a case-by-case basis
which materials are unsuitable. Division engineers can regionally
condition the NWPs to prohibit the use of certain materials, if those
materials are commonly used in a particular geographic region and are
considered toxic. We do not believe that it is necessary to specify
that discharged materials must not be cumulatively toxic, because the
discharge of toxic pollutants is addressed under Section 307 of the
Clean Water Act. We are proposing to retain this general condition as
published in the July 1, 1998, Federal Register notice.
19. Mitigation: In the July 1, 1998, Federal Register notice, we
proposed to modify this former Section 404 Only condition by deleting
the words ``* * * unless the District Engineer approves a compensation
plan that the District Engineer determines is more beneficial to the
environment than on-site minimization and avoidance measures.'' We also
proposed to modify this general condition to require restoration,
creation, enhancement, or preservation of aquatic resources to offset
losses of functions and values of waters of the United States due to
authorized impacts and to include the establishment of vegetated
buffers as part of a compensatory mitigation plan.
A few commenters stated that mitigation is defined too narrowly in
the general condition, and should include avoidance and minimization.
Some commenters stated that compensatory mitigation should not be
required for activities authorized by NWPs because the adverse effects
of those activities on the aquatic environment can only be minimal.
Other commenters stated that compensatory mitigation should be required
for all NWP activities that require a PCN. Some commenters said that
compensatory mitigation should be required for all impacts to the
aquatic environment. A few commenters stated that compensatory
mitigation should not be used to ``buy down'' losses of waters of the
United States authorized by NWPs to ensure that the adverse effects on
the aquatic environment are minimal.
The text of General Condition 19 includes all three steps of the
mitigation process (i.e., avoidance, minimization, and compensation).
Permittees are required to avoid and minimize impacts to the aquatic
environment on-site to the maximum extent practicable. The
consideration of off-site alternatives cannot be required for
activities authorized by NWPs. For NWP activities that require
notification to the District Engineer, compensatory mitigation may be
required to ensure that the net adverse effects on the aquatic
environment are minimal, individually or cumulatively. However, if the
adverse effects on the aquatic environment are minimal, without
compensatory mitigation, the District Engineer may determine that
compensatory mitigation is unnecessary and authorize the activity with
the NWP. The use of compensatory mitigation to reduce the adverse
effects of the authorized work to the minimal level is an essential
component of the NWP program, and included in the NWP regulations at 33
CFR Part 330.1(e)(3).
One commenter stated that the NWP program has become a way to avoid
an alternatives analysis, but another commenter views the NWPs as
similar to the individual permit process because it requires an on-site
alternatives analysis. One commenter said that the avoidance
requirement of this general condition is meaningless because the
resource agencies do not have enough time to review the applicant's
avoidance analysis in the PCN. One commenter recommended removing the
avoidance requirement from this general condition because there are
currently no standards for determining if the requirement has been met.
General Condition 19 requires the consideration of on-site
alternatives, including changes to the proposed work to avoid and
minimize adverse effects to waters of the United States. District
engineers will review the PCN to determine if additional avoidance and
minimization is practicable and necessary. If the proposed work meets
the terms and conditions of the NWP and results in minimal adverse
effects on the aquatic environment (with or without any compensatory
mitigation required by the District Engineer) it is not necessary to
require additional avoidance and minimization.
Two commenters believe that the requirement for restoration,
creation, enhancement, or preservation of aquatic resources to offset
authorized impacts to ensure that the adverse effects of the work are
minimal is a major change to the NWP program and does not accurately
reflect the concept of using compensatory mitigation to ensure that the
adverse effects on the aquatic environment caused by activities
authorized by NWPs are minimal. Another commenter stated that this
requirement is problematic because it requires compensatory mitigation
for any activity that requires a PCN even if the adverse effects of the
activity on the aquatic environment are minimal. This commenter
recommended changing this part of the general condition to read
[[Page 39344]]
``* * * of other aquatic resources only as necessary to offset
authorized impacts to the extent that adverse environmental effects to
the aquatic environment otherwise would be minimal.'' Two commenters
objected to the inclusion of preservation as a form of compensatory
mitigation.
We believe that this part of the general condition accurately
reflects 33 CFR Part 330.1(e)(3), which is the section of the NWP
regulations that allows the District Engineer to require compensatory
mitigation to offset losses of waters of the United States authorized
by NWPs, to ensure that the adverse effects on the aquatic environment
are minimal. The phrase ``at least to the extent that adverse
environmental effects to the aquatic environment are minimal'' provides
district engineers with the flexibility to determine that compensatory
mitigation is unnecessary if the authorized adverse effects on the
aquatic environment are already minimal. If no compensatory mitigation
is necessary to reduce the adverse effects on the aquatic environment
to the minimal level, then the District Engineer does not need to
require compensatory mitigation. Preservation of aquatic resources is
an important type of compensatory mitigation, because it can be used to
augment the restoration, creation, and enhancement of aquatic habitats.
Preservation can also be used to protect rare or high-value aquatic
resources.
Several commenters requested that the Corps not delete the language
from the original version of Section 404 Only condition 4 published in
the December 13, 1996, issue of the Federal Register. This language
allowed the District Engineer to determine that off-site compensatory
mitigation is more beneficial to the aquatic environment, because of
the flexibility allowed by this wording. One commenter objected to the
use of the term ``aquatic environment'' in the general condition and
stated that the 1990 Memorandum of Agreement (MOA) between the Corps
and EPA on mitigation only refers to wetlands. Two commenters
recommended that the Corps emphasize that compensatory mitigation may
be required for impacts to other aquatic resources, not just wetlands.
Other commenters stated that the Corps needs to provide guidelines for
replacement ratios, functional assessment methods, and monitoring
requirements.
The proposed changes to this general condition do not prohibit the
District Engineer from considering and approving off-site compensatory
mitigation to offset the adverse effects of the authorized work on the
aquatic environment. Off-site and out-of-kind compensatory mitigation
can be used to offset losses of waters of the United States, if such
compensation is beneficial to the aquatic environment. Mitigation
banks, in lieu fee programs, and other consolidated mitigation
approaches are also important sources of compensatory mitigation. The
1990 mitigation MOA applies only to the evaluation of standard Corps
permits, not general permits such as the NWPs. With the proposed new
and modified NWPs, we are placing more emphasis on other types of
aquatic resources, such as streams. Vegetated buffers adjacent to open
or flowing waters are an excellent form of compensatory mitigation to
offset adverse effects on the aquatic environment caused by the
activities authorized by the NWPs. Restoration of degraded streams can
be used as compensatory mitigation for stream impacts. It is important
to note that compensatory mitigation is not necessary for all
activities authorized by NWPs. The District Engineer will determine, on
a case-by-case basis, if compensatory mitigation is necessary to ensure
that the adverse effects on the aquatic environment are minimal for
activities authorized by NWPs. We disagree that the NWPs should contain
guidance for replacement ratios, functional assessment methods, and
monitoring requirements for compensatory mitigation. District engineers
will decide the appropriateness of compensatory mitigation on a case-
by-case basis, using any replacement ratios, functional assessment
methods, or monitoring requirements they believe are appropriate.
Several commenters addressed the use of vegetated buffers as
compensatory mitigation. Some commenters stated that the Corps lacks
the legal authority to require vegetated buffers, particularly upland
buffers, and recommended that the Corps delete the reference to
vegetated buffers from the general condition. A commenter objected to
use of vegetated buffers as compensatory mitigation for impacts to
waters of the United States, particularly as a substitute for the
restoration and creation of aquatic habitats. Another commenter
recommended using upland vegetated buffers as compensatory mitigation
only after the permittee has conducted a one-to-one replacement of
aquatic habitats. One commenter recommended modifying the general
condition to require planting the vegetated buffer with native
vegetation. One commenter said that vegetated buffers should be
required adjacent to all open waters. Two commenters recommended
including specific width requirements for vegetated buffers in the
general condition.
Our legal authority to require vegetated buffers adjacent to waters
of the United States is discussed in a previous section of this Federal
Register notice. Vegetated buffers adjacent to open waters or streams
can provide more benefits to the local aquatic environment than wetland
creation efforts. District engineers will determine how much the
vegetated buffer will count towards any compensatory mitigation
requirements. We are proposing to add text to this general condition
stating that the vegetated buffer should consist of native species.
However, if the vegetated buffer is already inhabited by trees and
shrubs, it should be maintained, even if some of the plant species are
not native to the region. If the vegetated buffer is inhabited by woody
non-native species that do not provide habitat for locally important
aquatic species, district engineers can condition the NWP authorization
to require the removal of those non-native species and the planting of
beneficial native species.
Since two general conditions address mitigation requirements for
the NWPs, we are proposing to add a sentence General Condition 19,
referring to the additional information concerning mitigation
requirements in paragraph (g) of General Condition 13. We are also
proposing to add a similar sentence to paragraph (g) of General
Condition 13, referring to the mitigation requirements of General
Condition 19.
20. Spawning Areas: One commenter suggested that we remove the word
``important'' from General Condition 20 to prohibit activities in any
fish spawning area. Two other commenters objected to the addition of
this word to the general condition because it does not define what an
``important'' spawning area is and would result in subjective
determinations by Corps personnel. Another commenter recommended that
the word ``structures'' be added to the examples of activities that can
physically destroy a spawning area.
We added the word ``important'' to this general condition to limit
the prohibition to spawning areas used by species that are harvested
commercially for human consumption. Spawning areas used exclusively by
other aquatic species are not subject to this general condition. We are
proposing to retain the word ``important'' in this general condition.
Division engineers can add regional conditions to the NWPs to prohibit
the use of NWPs (or require
[[Page 39345]]
notification for NWP activities) in known locations of important
spawning habitat. We do not believe it is necessary to include the
placement of structures in this general condition as an example of an
activity that physically destroys a spawning area because the general
condition already clearly states that authorized activities, including
structures in navigable waters, cannot result in the physical
destruction of important spawning areas.
21. Management of Water Flows: In the July 1, 1998, Federal
Register notice, we proposed to modify this former Section 404 Only
general condition and change the title of the condition from
``Obstruction of High Flows'' to ``Management of High Flows.'' We
proposed to modify this NWP to require permittees to design their
projects to maintain, to the maximum extent practicable,
preconstruction downstream flow conditions and reduce impacts such as
flooding or draining, unless the primary purpose of the project is to
impound water or reestablish drainage.
Several commenters fully supported the proposed modification to
this general condition. Another commenter stated that the general
condition should also include water quality control. A number of
commenters requested clarification of the proposed general condition.
One commenter stated that the condition should be modified to include
functionally related components, such as outfalls and developed flows,
with the project. Another commenter stated that the condition should be
clarified to allow impoundment of water for beneficial use if that is
the primary purpose of the project. Many commenters requested
clarification of terms used in the preamble discussion relating to this
general condition, including ``as close as feasible'' and ``more than
minimally flooded or dewatered.'' Other commenters asked if the Corps
is relating the preconstruction flows to particular events, such as 50-
or 100-year storm flows, or all flows. A commenter requested
clarification as to whether the general condition requires on-site
detention, if watershed detention is a better solution.
The NWPs are already conditioned to address water quality concerns
resulting from activities authorized by NWPs. General Condition 9
requires that the permittee obtain a water quality certification and,
for certain NWP activities, develop and implement a water quality
management plan to prevent more than minimal degradation of downstream
water quality. We do not agree that General Condition 21 requires
modification to include outfalls and developed flows with the project
because this condition applies to general flow patterns of waters of
the United States in the vicinity of the project, not to any specific
part of the project. The proposed modification of this condition
already contains language allowing the impoundment of water, if that is
the primary purpose of the authorized activity. The phrase ``as close
as feasible'' as used in the preamble is synonymous with the phrase
``to the maximum extent practicable,'' which is used throughout the
text of the general condition. The phrase ``more than minimally flooded
or dewatered'' used in the preamble relates to the requirement that the
NWPs authorize only those activities with minimal adverse effects on
the aquatic environment. District engineers will determine if any
changes to surface water flows resulting from the authorized work
exceeds the requirements of this general condition.
This general condition applies to the general flow patterns of
surface waters over the course of a year, not to any specific storm
event. For example, a project authorized by NWP may not cause more than
minimal increases in downstream water flows that result in downcutting
of the stream bed and substantial increases in stream bed and bank
erosion. This general condition does not require any particular method
to achieve compliance with the requirements of the general condition.
We are proposing to modify the text of the general condition to require
the permittee to maintain, to the maximum extent practicable, surface
water flow conditions from the site that are similar to preconstruction
flow conditions. The text in the July 1, 1998, Federal Register notice
required the establishment of flow rates similar to preconstruction
conditions.
Some commenters stated that the management of water flows is the
responsibility of State or local agencies that regulate stormwater
management. A number of commenters asked if the Corps or the permittee
will be responsible for ensuring compliance with this condition, and
what will be required in terms of design and documentation. A couple of
commenters asked what type of hydraulic analysis will be required to
verify compliance with this condition. Some commenters believe that the
Corps should develop consistent standards, guidance, and training
programs for the practicable measures that should be incorporated into
project plans to comply with this general condition. One commenter
requested that the Corps modify the language of the condition to state
that project modifications that decrease water supply yield or
substantially increase the cost of the water supply yield are not
considered practicable for the purposes of the general condition. A
commenter recommended modifying the condition to state that
practicability determinations will include consideration of costs,
benefits, and technical feasibility.
The purpose of the proposed modification of this general condition
is to improve protection of the aquatic environment and private
property by preventing substantial changes to local surface water flow
patterns, as a result of activities authorized by NWPs. If State or
local agencies have adequate requirements to manage water flows that
accomplish the goals of this general condition, district engineers will
normally defer this issue to those agencies. To determine compliance
with General Condition 21, district engineers will use discretion,
based on general knowledge of local water flow patterns, and will not
require a detailed hydrologic analysis or engineering study. The
language of this general condition provides district engineers with
flexibility to determine if a particular project complies with the
general condition. This general condition is not an absolute
requirement for maintaining identical preconstruction and
postconstruction water flow patterns. In addition, it does not require
that the project be designed or constructed to have no effect on water
flows. The general condition requires that postconstruction water flow
patterns are not more than minimally different from preconstruction
water flow patterns.
One commenter stated that the general condition should be modified
to allow additional runoff where it can be demonstrated that the
increased runoff can be collected by the receiving waterbody and the
permittee has received permission from the local flood control agency
to add this runoff to the waterbody. For the maintenance of ditches and
channelized streams, another commenter recommended modifying this
general condition to specify that the flow patterns in the restored
ditch will be used to define the preconstruction flow pattern. This
commenter said that the deteriorated ditch should not be used to
establish the preconstruction flow pattern. A commenter requested
modification of this general condition so that it would apply only to
off-site areas, not the project site.
[[Page 39346]]
If the primary purpose of the proposed work does not include
impounding water, and the activity will increase flooding, then the
proposed work does not comply with General Condition 21. The project
proponent can apply for authorization through the individual permit
process or request a regional general permit authorization, if
applicable. The maintenance of ditches, including the maintenance of
channelized streams used as drainage ditches, may be exempt under
Section 404(f) and not require a Section 404 permit. General Condition
21 does not apply to activities exempt from Section 404 permit
requirements. Modifying this general condition to allow increases in
downstream flows on-site, but prohibiting increases in downstream flows
off-site, is impractical. Unless the project site is extremely large,
it is likely that any increases in downstream water flows on the
project site will extend to off-site areas.
A number of commenters objected to the proposed modifications to
this condition. Some commenters stated that the Corps failed to
demonstrate the need for the proposed modification. A few commenters
said that the Corps does not have the authority to require this
condition under the Clean Water Act. Several commenters stated that the
Corps does not possess the expertise to enforce this condition and
should not regulate activities within floodplains. A commenter believes
that the proposed changes to this general condition are contrary to the
Corps goal of streamlining the regulatory process. A number of
commenters stated that the proposed changes to this general condition
would make most projects ineligible for NWP authorization.
Some activities in waters of the United States result in adverse
effects on local surface water flow patterns, including increased
flooding upstream and downstream of the project site. The purpose of
the proposed modifications to General Condition 21 is to require
permittees to design and construct their projects to maintain
preconstruction downstream flow conditions, unless the primary purpose
of the fill is to impound water. Large changes to surface water flow
patterns can result in substantial adverse effects on the aquatic
environment, by destroying aquatic habitat and impairing water quality.
Higher rates of surface runoff caused by increases in the amount of
impervious surface in a watershed can create substantial changes in
stream morphology, affecting the quality of aquatic habitat and species
inhabiting the stream. Water quality will be degraded by increasing the
amount of suspended sediment in the water column. For example, the
construction of a commercial development, including buildings and
parking lots, near a stream can increase storm flows to local streams,
which can result in downcutting of the stream bed and increases in bank
erosion, destroying aquatic habitat. The proposed modification of this
general condition is intended to address these types of changes to
surface water flows.
The Clean Water Act provides the Corps with the authority to
require this condition, because it is related to the activities
regulated under Section 404 of the Clean Water Act. Corps personnel
will qualitatively evaluate proposed NWP activities to determine if
they comply with this condition. This condition does not expand the
Corps regulatory authority to include activities in floodplains; it
merely addresses adverse effects to surface water flows that may result
from activities in waters of the United States. The proposed
modification of General Condition 21 is not contrary to the Corps goal
of streamlining the regulatory process, because it requires only a
qualitative analysis, not a detailed hydraulic or engineering study, to
determine compliance. The phrase ``to the maximum extent practicable''
is used throughout the general condition, and provides district
engineers with the flexibility to determine if a particular project
complies with this condition. Since this general condition is not an
absolute requirement to maintain preconstruction flows, we do not agree
that the requirements of this general condition will result in a
substantial number of projects becoming ineligible for NWP
authorization. We are proposing to modify the last sentence of this
general condition to clarify its requirements.
23. Waterfowl Breeding Areas: Although we did not propose any
changes to this general condition in the July 1, 1998, Federal Register
notice, except to consolidate it with the other general conditions, one
commenter recommended changing the title of this condition to
``Migratory Bird Breeding Areas'' and adding the phrase ``other
migratory birds'' after the phrase ``migratory waterfowl.''
We do not agree with this recommendation, because the inclusion of
other migratory birds is outside the scope of the Corps regulatory
authority. A goal of the Corps regulatory program is to maintain the
quality of the aquatic environment. Including other migratory birds in
this general condition would result in an inappropriate increase in the
Corps scope of analysis because many migratory bird species are not
dependent on wetlands and other waters of the United States. We are not
proposing any changes to this general condition.
Proposed General Condition 16, Subdivisions: In the July 1, 1998,
Federal Register notice, we proposed a new general condition, General
Condition 16, entitled ``Subdivisions'' to ensure that only single and
complete projects are authorized by the proposed NWPs for residential,
commercial, and institutional activities and master planned development
activities (i.e., proposed NWPs A and B). A few comments were received
in response to this proposed general condition. A commenter remarked
that the subdivision date is arbitrary and could allow the NWPs
affected by the proposed general condition to authorize activities with
more than minimal adverse effects on the aquatic environment. Another
commenter stated that subdivisions created after October 5, 1984,
should be allowed to use proposed NWP A only once. One commenter
recommended that single and complete projects should be determined by
the subdivision date, not any phasing schedule for the development.
Another commenter stated that the acreage limits for subdivisions
should be consistent with regional EPA requirements.
Since the proposed NWP for master planned developments was
withdrawn in the October 14, 1998, Federal Register notice, we are
withdrawing the proposed general condition and placing a modified
version of the text in proposed NWP 39, since NWP 39 is the only NWP
for which this subdivision provision is currently applicable. NWP 29
has its own subdivision provision. The October 4, 1984, subdivision
date is not arbitrary, but this date was chosen to be consistent with
the subdivision provision for NWP 26. The reasons for adding a
subdivision provision to NWP 26 were addressed in the November 22,
1991, Federal Register notice for the reissuance of NWP 26 (see 56 FR
59114). The October 5, 1984, date was selected because it was the date
the 1-acre and 10-acre limits were added to NWP 26. A subdivision date
was incorporated into NWP 26 to address the issue of single and
complete projects, recognizing that most subdivisions are actually
individual projects with interrelated components. To provide fairness
to the regulated public, we will utilize the same subdivision date for
NWP 39.
25. Designated Critical Resource Waters: In response to the
comments received in response to the October 14,
[[Page 39347]]
1998, Federal Register notice concerning the use of NWPs in designated
critical resource waters, we are proposing a new NWP general condition
that addresses this issue. The proposed general condition prohibits the
use of NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and 44
for any activity in the following critical resource waters, including
wetlands adjacent to these waters. Activities authorized by NWPs 3, 8,
10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38 can
be conducted in these designated critical resources, including adjacent
wetlands, provided the permittee notifies the District Engineer in
accordance with General Condition 13 and the proposed work will result
in minimal adverse effects on the aquatic environment. For the purposes
of proposed General Condition 25, no additional notification is
required for activities in designated critical resource waters and
adjacent wetlands that are authorized by NWPs not listed in the text of
this general condition, although notification may be required by other
conditions.
For the purposes of the proposed general condition, designated
critical resource waters include: NOAA-designated marine sanctuaries,
National Estuarine Research Reserves, National Wild and Scenic Rivers,
critical habitat for Federally-listed threatened or endangered species,
coral reefs, State natural heritage sites, or outstanding national
resource waters officially designated by the state where those waters
are located. Outstanding national resource waters and other waters
having particular environmental or ecological significance must be
officially designated through an official State process (e.g., adopted
through regulatory or statutory processes, approved through State
legislation, or designated by the Governor). In those circumstances
where a waterbody has been designated by the State, the District
Engineer will publish a notice advising the public that such waters
will be added to the list of designated critical resource waters. The
District Engineer may designate additional critical resource waters
after notice and opportunity for public comment.
Paragraph (a) of General Condition 25 refers to General Condition 7
for activities in National Wild and Scenic Rivers. General Condition 25
also states that the NWPs cannot authorize discharges in designated
critical habitat for Federally-listed threatened or endangered species
unless the activity complies with General Condition 11 and the U.S.
Fish and Wildlife Service or the National Marine Fisheries Service has
concurred in a determination of compliance with that general condition.
The comments received in response to the October 14, 1998, Federal
Register notice related to this new general condition are discussed in
detail in a previous section of this Federal Register notice.
26. Impaired Waters: As a result of the comments received in
response to the October 14, 1998, Federal Register notice concerning
the use of NWPs in impaired waters, we have proposed a new NWP general
condition that restricts the use of NWPs in waterbodies that have been
designated as impaired through the Clean Water Act Section 303(d)
process. This proposed general condition also applies to wetlands
adjacent to those impaired waterbodies. For the purposes of this
general condition, ``impaired waters'' are defined as those waters of
the United States that have been identified by States or Tribes through
the Clean Water Act Section 303(d) process as impaired due to
nutrients, organic enrichment resulting in low dissolved oxygen
concentration in the water column, sedimentation and siltation, habitat
alteration, suspended solids, flow alteration, turbidity, or the loss
of wetlands.
General Condition 26 is based on a presumption that discharges into
an impaired waterbody, or wetlands adjacent to that impaired waterbody,
will result in further impairment of the waterbody. NWPs cannot be used
to authorize discharges of dredged or fill material that result in the
loss of greater than 1 acre of impaired waters of the United States and
wetlands adjacent to those impaired waters. For activities authorized
by NWP 3, this prohibition does not apply, provided the prospective
permittee notifies the District Engineer in accordance with General
Condition 13 and demonstrates that the work will not result in further
impairment of the waterbody. For discharges of dredged or fill material
resulting in the loss of 1 acre or less of impaired waters of the
United States, including adjacent wetlands, this presumption can be
refuted by clear evidence that the proposed project will not further
impair the waterbody. To refute this presumption and qualify for NWP
authorization, the prospective permittee must submit a notification to
the District Engineer in accordance with General Condition 13. The
notification must contain a statement explaining how the proposed work
will not result in further impairment of the waterbody. Any
compensatory mitigation required to offset the losses of impaired
waters of the United States, including adjacent wetlands, and ensure
that the work results in minimal adverse effects on the aquatic
environment should be should be designed to contribute to the reduction
of sources of pollution contributing to the impairment. For example,
the establishment and maintenance of a vegetated buffer adjacent to a
stream impaired due to nutrients will reduce nutrient inputs to that
stream (the functions and values of vegetated buffers are discussed in
a previous section of this Federal Register notice). That vegetated
buffer would be considered as compensatory mitigation for a loss of
wetlands adjacent to that impaired stream.
If the proposed discharge will result in the loss of greater than
\1/4\ acre of impaired waters and adjacent wetlands, then the District
Engineer will coordinate with the State 401 agency in accordance with
the procedures in paragraph (e) of General Condition 13. The District
Engineer will consider any comments provided by the 401 agency to
determine if the proposed work, excluding mitigation, will result in
further impairment of the waterbody.
The comments received in response to the October 14, 1998, Federal
Register notice are discussed in detail in an earlier section of this
Federal Register notice.
27. Fills Within the 100-year Floodplain: In response to the
comments received in response to the October 14, 1998, Federal Register
notice concerning the use of NWPs to authorize permanent, above-grade
fills in waters of the United States within 100-year floodplains, we
have proposed NWP General Condition 27. The comments received in
response to the 100-year floodplain restriction proposed in the October
14, 1998, Federal Register notice are discussed in detail in a previous
section of this Federal Register notice.
General Condition 27 is based on a presumption that certain NWP
activities resulting in permanent, above-grade fills in waters of the
United States within 100-year floodplains will cause more than minimal
adverse effects on surface hydrology and the functions and values of
100-year floodplains. General Condition 27 prohibits the use of NWPs
21, 29, 39, 40, 42, 43, and 44 to authorize permanent, above-grade
fills in waters of the United States within 100-year floodplains. For
NWPs 12 and 14, this presumption can be refuted if the prospective
permittee clearly demonstrates to the District Engineer that the
proposed work and associated mitigation, not decrease the flood-holding
capacity of the waterbody and its 100-year floodplain and the proposed
[[Page 39348]]
work will not result in more than minimal adverse effects on hydrology,
flow regimes, or volumes of water associated with the 100-year
floodplain. This demonstration must include proof that the Federal
Emergency Management Agency (FEMA) or a state or local flood control
authority through a licensed professional engineer, has approved the
proposed project and provided a statement that the activity will not
increase flooding or result in more than minimal adverse effects to
floodplain hydrology or flow regimes. The other NWPs are not subject to
the requirements of General Condition 27.
To implement General Condition 27, FEMA's Flood Insurance Rate Maps
(FIRMs) will be used to identify 100-year floodplains, provided those
maps reflect the current extent of 100-year floodplains. If there are
no FIRMs published for the project area, or if the latest FIRM does not
represent the current 100-year floodplain, information from the
appropriate local floodplain authority will be used to determine the
boundaries of the 100-year floodplain. Projects located in a 100-year
floodplain at the point in the watershed that has a drainage area of
less than 1 square mile are not subject to General Condition 27.
General Condition 27 prohibits the use of NWPs 21, 29, 39, 42, 43,
and 44 to authorize permanent, above-grade fills in waters of the
United States within 100-year floodplains. For activities authorized by
these NWPs, the prospective permittee must notify the District Engineer
in accordance with General Condition 13. The notification must include
documentation that the proposed work will not be located in the 100-
year floodplain or will not result in permanent, above-grade fills in
waters of the United States within the 100-year floodplain. Activities
authorized by NWPs 21, 29, 39, 42, 43, and 44 that occur within 100-
year floodplains but do not result in permanent, above-grade fills in
waters of the United States within the 100-year floodplain are not
subject to General Condition 27. The term ``permanent above-grade
fill'' is defined in the ``Definitions'' section of the NWPs. The
District Engineer will make the final determination as to whether a
project is actually located in the 100-year floodplain or whether the
project results in permanent, above-grade fills in waters of the United
States.
General Condition 27 does not prohibit the use of NWPs 12 and 14 to
authorize discharges into waters of the United States resulting in
permanent, above-grade wetland fills in waters of the United States
within 100-year floodplains, provided the prospective permittee clearly
demonstrates to the District Engineer that the activity will not
decrease flood-holding capacity and will not result in more than
minimal modifications of hydrology, flow regime, or volume of waters
associated with the 100-year floodplain. The prospective permittee must
notify the District Engineer in accordance with General Condition 13 if
the proposed work will result in permanent, above-grade wetland fills
in waters of the United States within the 100-year floodplains. The
notification must include documentation that clearly demonstrates that
the project will not increase flooding or result in more than minimal
changes to floodplain hydrology or flow regimes. This documentation
must include proof that FEMA, or a state or local flood control
authority through a licensed professional engineer, has approved the
proposed project and provided a statement that the project does not
increase flooding or cause more than minimal alterations to floodplain
hydrology or flow regimes. Activities authorized by NWPs 12 and 14 that
occur within 100-year floodplains but do not result in permanent,
above-grade fills in waters of the United States within the 100-year
floodplain are not subject to General Condition 27.
V. Comments and Responses on Nationwide Permit Definitions
General
In the July 1, 1998, Federal Register notice, we proposed to add a
definition section to the NWPs to promote consistency in the
implementation of the NWPs. We requested comments on the definitions
presented in the Federal Register notice. Approximately 45 commenters
addressed the proposed definitions.
One commenter stated that the Corps has replaced a simple
measurement of 5 cubic feet per second for headwaters determinations
for the purposes of NWP 26 with confusing terms and conditions for the
new and modified NWPs. This commenter believes that requiring permit
applicants to distinguish between perennial, intermittent, and
ephemeral streams, contiguous and noncontiguous wetlands, non-tidal
wetlands and tidal wetlands, and Section 10 and non-Section 10 waters
is too confusing and will undermine the NWP program. One commenter
asked if it is the intent of the Corps to expand the applicability of
the new NWPs to non-contiguous but adjacent waters.
We believe that the terms used with the proposed new and modified
NWPs will promote consistency in the NWP program, make the NWP program
easier to implement, and provide District personnel with the means to
better assess impacts to the aquatic environment. These terms help
Corps personnel to classify some types of aquatic resources and make
determinations of minimal adverse effects. The three types of streams
cited in the Federal Register notice are generally accepted stream
types, based on the duration of water flow in the stream channel. We
have modified the applicable waters for most of the proposed new NWPs
to prohibit their use in non-tidal wetlands adjacent to tidal waters.
Non-tidal and tidal wetlands have some different functions and values.
For years, Corps personnel have had to distinguish between tidal and
non-tidal wetlands and between Section 10 and non-Section 10 waters.
Corps personnel have had to identify these types of waters to determine
which type of authorization a particular project may require.
In the July 1, 1998, Federal Register notice, we proposed
definitions for the three different types of streams. One commenter
suggested that the Corps provide clarification or a definition to help
determine when a stream has sufficient flow to be considered a ``water
of the United States.'' This commenter recommended that a stream should
be considered a water of the United States only if it is shown as a
perennial or intermittent stream on a United States Geological Survey
(U.S.G.S.) quadrangle map. Two commenters stated that many perennial,
intermittent, and ephemeral streams are perched above the water table
and that the definitions of these stream types should be based on flow
hydrographs measured over the course of a year, not the relationship
between the stream bed and the water table. One commenter said that the
different stream types cannot be differentiated in the field and asked
whether perennial, intermittent, and ephemeral streams have
identifiable beds and banks.
The Corps regulations state that non-tidal waters of the United
States, including perennial, intermittent, and ephemeral streams, are
waters of the United States up to the ordinary high water mark (see 33
CFR Part 328.4(c)). These three stream types typically have a bed and
bank, but the presence of a bed and bank should not be used to identify
streams; a gully created by erosion can also be considered to have a
bed and bank. If a landscape feature with a bed and bank does not have
an ordinary high water mark, it is not a water of the United States
unless it contains jurisdictional wetlands. We do not agree that
U.S.G.S. maps should be used to determine the limits of
[[Page 39349]]
intermittent and perennial streams. The upper reaches of streams are
often inaccurately mapped on U.S.G.S. quadrangles. These maps typically
do not accurately depict the location and extent of intermittent or
ephemeral streams. They are useful for identifying perennial streams,
but they should be used with caution. Distinguishing between these
three stream types will often require field observations.
Stream beds can be located above or below the water table. Influent
streams contribute water to the groundwater because their beds are
usually located above the water table. Groundwater provides flowing
water to effluent streams because the beds of effluent streams are
located below the water table. The interaction between groundwater and
stream flows also depends on local geologic features. Perennial streams
are mostly effluent streams, flowing even during dry periods.
Intermittent streams can be either effluent or influent, depending on
the time of year and local precipitation patterns. During wetter
months, when the water table is high or at normal elevations,
intermittent streams are usually effluent. Intermittent streams are
also effluent during short dry periods. During substantial dry periods,
intermittent streams are usually influent. Ephemeral streams are always
influent, because their beds are located above the water table year
round.
Although the focus of the definitions of these stream types is the
duration of flowing water over the course of a year, it is important to
consider the source of the water flowing in the channel. We believe
that it is appropriate to consider the source of water when classifying
streams as ephemeral, intermittent, or perennial. However, as with any
classification scheme for natural systems, there are exceptions. For
example, in some mountain ranges there may be streams with flowing
water almost year round due to snow melt. Some of these stream channels
may receive no water from groundwater; the only source of water is
melting snow. In these areas, stream channels with flowing water year
round due to snow melt should be considered perennial. If flowing water
is present in the channel for long periods of time due to snow melt,
but water flow is not year round, those streams should be considered
intermittent.
Artificial sources of water should not affect determinations of
stream types. For example, pumping water into an ephemeral stream
channel for a long period of time should not cause that stream to be
classified as an intermittent stream. We recognize that the definitions
proposed in the July 1, 1998, Federal Register notice do not completely
address all possible factors that can influence the classification of
stream types based on duration of flow, but by basing the definitions
of perennial, intermittent, and ephemeral streams on the contribution
of groundwater to flow patterns, Corps district personnel can
consistently apply these definitions in a simple and effective manner
in most parts of the country, without the need to do extensive
hydrology studies. District engineers will use their discretion to
distinguish between ephemeral, intermittent, and perennial streams.
These determinations should be based on their general knowledge of flow
patterns in the area. District engineers can consider any additional
information the permit applicant provides, based on actual measurements
or modeling.
It is also important to note that, with the exception of proposed
NWP 43, classifying streams as perennial, intermittent, or ephemeral is
used only to determine whether or not a PCN is required. For example,
proposed NWP 42 requires a PCN for discharges causing the loss of
greater than 500 linear feet of perennial or intermittent stream bed.
NWP 43 does not authorize the construction of stormwater management
facilities in perennial streams. District engineers can regionally
condition the NWPs to require notification for certain stream types and
exercise discretionary authority when a particular activity may result
in more than minimal adverse effects on the aquatic environment.
A commenter stated that the boundary between tidal waters and non-
tidal wetlands is not well-defined or readily discernible in some parts
of the country and that it will be difficult to determine the precise
landward limits of tidal influence and which NWP is applicable. Another
commenter said that the proposed definitions of tidal and non-tidal
wetlands appear to exclude freshwater wetlands.
The boundary between tidal wetlands and non-tidal wetlands can be
estimated by identifying the species of plants inhabiting the area.
Tidal wetlands often have a different plant species composition than
non-tidal wetlands, which may be used as an indicator of the extent of
tidal waters. In most cases, judgement will be required to estimate the
location of the high tide line. Wrack lines can be used to locate the
high tide line. However, it is not our intent to require permit
applicants to conduct land surveys or utilize tide gages to determine
the limit of tidal waters. The definitions of tidal and non-tidal
wetlands do not exclude freshwater wetlands. Tidal wetlands can be
inundated by saline (i.e., marine or estuarine) water or freshwater.
Non-tidal wetlands are mostly freshwater wetlands, but there are non-
tidal saline marshes in some parts of the country.
Specific Definitions
The following paragraphs discuss the comments received in response
to the July 1, 1998, Federal Register notice concerning the proposed
definitions for the NWPs.
Aquatic Bench: Two commenters stated that the definition of this
term should not be limited to stormwater management facilities. They
said that these areas are found in natural waterbodies, such as ponds
or lakes.
This term is defined for the purposes of NWP 43, Stormwater
Management Facilities. It refers to a specific type of area within a
stormwater management facility that is constructed for the purpose of
providing a substrate in water depths shallow enough to support
populations of emergent aquatic vegetation that may enhance the
functions of the stormwater management facility. Although these types
of areas can be found naturally in ponds and lakes, we would simply
consider them to be wetlands. Aquatic benches constructed in stormwater
management facilities may or may not be considered waters of the United
States for the purposes of Section 404, depending on the circumstances
in which they are found. If they are constructed wetlands intended to
improve the quality of water retained in the stormwater management
facility, they are not considered jurisdictional wetlands. We are
proposing to retain this definition as originally proposed.
Best Management Practices: No comments were received concerning
this term. We are proposing to retain this definition as originally
proposed.
Channelized stream: We received several comments concerning the
proposed definition of this term. One commenter said that not all
stream channelization results in increases in flow rate or water
capacity. Another commenter stated that a channelized stream has been
manipulated to fix the channel location, not to increase conveyance,
and that the definition should focus on the fixed nature of stream
channels, not water flow rates. One commenter asked whether the
proposed definition includes transportation activities that change the
channel cross-section or other aspects of channel geometry of a stream.
This commenter stated that construction of a road embankment may
require filling some stream bed and moving the stream
[[Page 39350]]
channel to protect the embankment. According to this commenter, this
work does not increase conveyance of water, but changes the channel
geometry. This commenter wanted assurance that these types of
activities are exempt from Section 404 permit requirements. Another
commenter recommended that the Corps add a statement to the definition
to clarify that stream channelization requires a Section 404 and/or
Section 10 permit from the Corps.
Changing the morphology of the stream channel to increase the rate
of flow through the stream channel constitutes stream channelization.
Relocating the stream channel is not necessarily ``stream
channelization'' unless the relocation is intended to increase the rate
of water flow through the stream channel. Streams can be relocated,
with natural morphology such as meanders, with little or no changes in
water flow rates. Stabilizing stream banks near a road crossing (either
a bridge or culvert) is not considered stream channelization, unless
the stream bed is armored and/or excavated for a substantial distance
from the road crossing to increase the rate of water flow. Stream bank
stabilization does not necessarily result in channelization, even
though it may fix the position of the stream bed in the landscape. If
only one bank is covered with rip rap to reduce or prevent bank
erosion, then we do not consider that activity as stream
channelization. However, lining the stream bed and banks with concrete
to increase the rate of water flow through the stream channel is a
method of stream channelization that does not necessarily change the
location of the stream bed. For the purposes of NWP 14 and other NWPs
that can be used to authorize road crossings, stabilizing stream banks
near culverts or bridge abutments to prevent erosion near the road
crossings, is not considered stream channelization. The construction of
a road embankment by filling some of the stream and/or relocating the
stream bed is not exempt from Section 404 permit requirements, because
these activities are not included in Section 404(f) of the Clean Water
Act and they involve discharges of dredged or fill material into waters
of the United States. We do not believe it is necessary to include a
sentence in the definition stating that a Section 404 or Section 10
permit is required for stream channelization activities.
One commenter requested clarification as to whether stream
channelization, when done in conjunction with the construction of a
road crossing, is part of the road crossing or requires separate
authorization. Another commenter requested that the definition clarify
whether the use of culverts to construct a road crossing results in a
channelized stream. This commenter stated that some Corps districts
consider culverts as channel modifications, while others do not.
Channel modifications in the immediate vicinity of a stream
crossing that are conducted to allow the water to flow more efficiently
through the crossing or prevent erosion of the soil near the crossing
are not considered stream channelization and are part of the single and
complete road crossing project. Channel modifications outside of the
immediate vicinity of the crossing may constitute stream
channelization, and may require a separate authorization at the
discretion of the District Engineer. When stream channelization is
performed with the construction of a road crossing, both activities
should be considered as a single and complete project, which may be
authorized by NWPs or another form of authorization, such as a regional
general permit or an individual permit. The installation of a culvert
in a stream bed does not channelize the stream, provided the length and
width of the culvert is limited to the minimum necessary to construct
the road crossing and the amount of rip rap placed to protect the
culvert is the minimum necessary.
One commenter objected to the last sentence of the proposed
definition, stating that this sentence is contrary to the Section
404(f) exemption for drainage ditches. We concur with this comment and
have removed the last sentence from this definition.
In the proposed new and modified NWPs, we used different terms
relating to stream channelization. For consistency, we will use the
term ``stream channelization'' throughout the proposed new and modified
NWPs. Stream channelization results from modifications to increase the
rate of water flow through the stream channel. Placing rip rap along a
stream bank to stabilize the bank and reduce erosion does not
necessarily constitute stream channelization, but lining the stream bed
and bank with concrete or rip rap to increase the rate of water flow
through the stream channel is stream channelization.
We are proposing to replace the term ``channelized stream'' with
``stream channelization'' and modify the definition as discussed above.
Contiguous wetland: We received many comments concerning the
proposed definition of this term. Some commenters stated that the
definition is unclear. Another commenter stated that the geographic
scope of new NWPs is confusing and that the definition appears to
provide inconsistent guidance describing when a non-tidal wetland is
contiguous to tidal waters. Two commenters requested that the Corps
utilize the term ``adjacent'' instead of ``contiguous'' to limit the
use of the new NWPs. One commenter expressed concern that the term
``surface waters'' would exclude wetlands that are inundated or
saturated primarily by groundwater. This commenter recommended the
inclusion of groundwater to establish the contiguous connection.
One commenter requested that the Corps clarify the phrase
``normally contiguous to the nearest open water,'' as contained in the
proposed definition. Another commenter questioned why a wetland can act
as a surface water connection for a contiguous wetland but a channel
cannot, even though a stream channel contains a surface water. One
commenter recommended that this definition should state that culverts
and tide gates constitute a surface water connection and that the
definition is confusing and should be field tested in different areas
of the country. This commenter also stated that it is difficult enough
to distinguish between tidal and non-tidal areas of a channel without
having to worry about small tributaries or sloughs draining into the
larger waterbody. The commenter requested that the Corps clarify the
definition to state whether the required surface water connection has
to be present at low, normal, or high flows or associated with a
certain size flood event. Another commenter asked if tide gates break
up the contiguous connection. One commenter stated that the proposed
definition appears to be a significant change for the purpose of
circumventing the decision in the United States Court of Appeals for
the Fourth Circuit decision in the United States v. Wilson, 133 F. 3d
251 (4th Cir. 1997). This commenter believes that the proposed
definition will result in the regulation of all isolated waters and
wetlands, regardless of the type of connection, and that the definition
must be clarified to recognize the different connections between waters
of the United States to determine if a particular wetland is isolated.
The commenter also believes that the proposed definition eliminates the
distinction between natural streams and man-made connections to waters
of the United States.
To increase protection of the aquatic environment, we are proposing
to prohibit the use of most of the new
[[Page 39351]]
NWPs in non-tidal wetlands adjacent to tidal waters instead of
prohibiting the use of those NWPs in non-tidal wetlands contiguous to
tidal waters. Therefore, the definition of the term ``contiguous
wetland'' has been removed from the ``Definitions'' section of the
NWPs.
Drainage ditch: We received a variety of comments concerning the
proposed definition of this term. One commenter supported the proposed
definition. Another commenter agreed that drainage ditches constructed
in uplands are not waters of the United States. A commenter stated that
a drainage ditch is not a stream and that all activities associated
with drainage ditches should be exempt from all permits. A number of
commenters stated that channelized streams are not drainage ditches and
that the Corps should retain that part of the proposed definition. A
commenter requested that the Corps identify methods that will be used
to distinguish between a drainage ditch constructed in wetlands and a
channelized stream. Two commenters opposed the exclusion of channelized
streams in the definition and stated that the proposed definition is
contrary to the 404(f)(1) exemption, which considers streams that are
channelized to improve drainage to be drainage ditches. Another
commenter stated that some drainage ditches are constructed in
intermittent and ephemeral streams.
We concur with the last two comments in the previous paragraph, and
have removed the last two sentences from the proposed definition.
Channelized streams that are maintained as drainage ditches are waters
of the United States, but maintenance of these drainage ditches is
exempt from Section 404 permit requirements as long as the maintenance
activity does not exceed the original drainage ditch design and
configuration.
One commenter stated that the portion of the proposed definition
that includes the phrase ``otherwise extends the ordinary high water
line of existing waters'' is not clear and that this part of the
proposed definition could expand the Corps jurisdiction into waters
that have always been thought of as man-made extensions which were not
considered by some Corps districts as jurisdictional.
This part of the proposed definition is consistent with 33 CFR
328.5, which states that man-made changes may affect the limits of
waters of the United States, but ``permanent changes should not be
presumed until the particular circumstances have been examined and
verified by the district engineer.'' Therefore, activities that extend
the ordinary high water mark may, at the discretion of the District
Engineer, expand waters of the United States.
We are proposing to modify the definition of the term ``drainage
ditch'' as discussed above.
Ephemeral stream: Two commenters stated that the proposed
definition is too broad and subject to various interpretations. One of
these commenters recommended that the Corps develop a more specific
definition of the limits of jurisdiction, such as drainage area. One
commenter suggested that the definition should be changed to exclude
drainage ditches.
Using drainage area to differentiate between stream types is not
practical because there are many factors, in addition to drainage area,
that influence the duration of water flow in streams channels. It is
not appropriate to change the definition to specifically exclude
drainage ditches, because some drainage ditches may be channelized
streams, which are waters of the United States.
A number of commenters disagreed that ephemeral streams are waters
of the United States. One of these commenters requested that the Corps
specify the circumstances under which ephemeral streams are, or are
not, waters of the United States. One commenter requested that the
Corps issue guidance to its districts to identify ephemeral streams and
provide prospective permittees with maps of streams that require PCNs
under the NWP program.
Ephemeral streams are waters of the United States as long as an
ordinary high water mark is present and the waterbody meets the
criteria in 33 CFR Part 328. If there is no ordinary high water mark,
and there are no adjacent wetlands, the area is not a water of the
United States. The limit of non-tidal waters of the United States is
discussed at 33 CFR Part 328.4(c). It would be too resource intensive
to provide maps of streams that require a PCN for the purposes of the
NWPs. Instead, districts will determine on a case-by-case basis whether
or not a particular stream is ephemeral, intermittent, or perennial. We
are proposing to retain the definition.
Farm: For the purposes of the proposed modification of NWP 40, we
proposed a definition of the term ``farm'' to help determine what
constitutes a single and complete project. Two commenters stated that
the proposed definition is too narrow and will add unnecessary
complexity for farmers, because using Internal Revenue Service (IRS)
tax criteria to identify farms is too complicated.
Because of the changes to the modification of NWP 40, we will use
the term ``farm tract'' instead of ``farm'' to determine what
constitutes a single and complete project for the purposes of NWP 40.
Farm tract determinations are not based on IRS criteria. The Farm
Service Agency of the U.S. Department of Agriculture identifies farm
tracts. The rationale for basing the single and complete project on
farm tracts for NWP 40 is discussed in more detail in the preamble for
NWP 40. In the ``Definitions'' section of the NWPs, we are proposing to
use the Farm Service Agency's definition of the term ``farm tract,'' as
found at 7 CFR Part 718.2, to replace the proposed definition for
``farm.''
Intermittent stream: We received similar comments to those received
for the proposed definition of ``ephemeral stream,'' which were
discussed above. A number of commenters stated that it is difficult for
permit applicants to distinguish between intermittent and ephemeral
streams and requested further clarification. One of these commenters
recommended that the Corps utilize the ordinary high water mark to
distinguish between intermittent and ephemeral streams: if an ordinary
high water mark (OHWM) is present, the stream is intermittent; if an
OHWM is absent, the stream is ephemeral. Two commenters recommended
that the definition distinguish between intermittent streams and man-
made ditches. Another commenter stated that intermittent streams should
be excluded from the NWPs because under the proposed definition, a
swale in a pasture would qualify as a stream.
The proposed definition is adequate to differentiate between
intermittent and ephemeral streams. Determinations as to whether a
particular stream is perennial, intermittent, or ephemeral will be made
by district engineers on a case-by-case basis. These determinations
should be based on their general knowledge of flow patterns in the
area. District engineers will consider any additional information the
permit applicant provides based on actual measurements or modeling.
Using the OHWM to distinguish between ephemeral and intermittent
streams would be contrary to 33 CFR Part 328. The limit of jurisdiction
for intermittent and ephemeral streams is the OHWM. If no OHWM is
present, then that channel is not a water of the United States. We do
not agree that it is necessary to distinguish between intermittent
streams and man-made ditches. An intermittent stream may have been
channelized to improve local drainage. Man-made ditches can be
constructed in wetlands and other waters of the United
[[Page 39352]]
States, such as perennial and intermittent streams, as well as uplands.
Man-made ditches constructed in waters of the United States are still
considered waters of the United States. If a swale possess an OHWM, it
would be considered a water of the United States, if it meets the
criteria in 33 CFR Part 328. If a swale lacks an OHWM, but possess
wetland hydrology, hydric soils, and a hydrophytic plant community, it
may be considered a jurisdictional wetland, unless the swale was
constructed in uplands and has not been abandoned. A swale that lacks
an OHWM or does not exhibit wetland characteristics is not a water of
the United States.
Another commenter requested further clarification to address
situations where there is extensive groundwater pumping for crop
irrigation. Except in extremely wet years, this activity causes some
streams to dry up entirely; without groundwater pumping for irrigation,
many of these streams would have flowing water during most of the year
or year round.
Adjacent land use changes can affect water flow patterns of
streams. Removal of large amounts of groundwater can decrease the
duration of water flow through the stream channel over the course of a
year. District engineers should base their stream classification
determinations on normal circumstances and whether or not the region is
experiencing normal rainfall patterns. For example, if the stream has
flowing water for only part of a typical year due to normal pumping of
groundwater for irrigation or domestic uses, then that stream should be
classified as ``intermittent,'' even though it may have been a
perennial stream prior to the introduction of the activities that
changed the flow pattern. We are proposing to retain this definition.
Loss of waters of the United States: A number of commenters
objected to the proposed definition because it includes excavation.
These commenters cited the recent decisions by the United States
District Court for the District of Columbia in American Mining Congress
v. United States Army Corps of Engineers and the United States Court of
Appeals for the District of Columbia Circuit in National Mining
Association et al. v. U.S. Army Corps of Engineers. In these decisions,
the District Court overturned the Corps and EPA's revisions to the
definition of ``discharge of dredged material,'' which were promulgated
on August 25, 1993 (see 58 FR 45008) and the Court of Appeals affirmed
the District Court's decision. These commenters said that the
definition should not include excavation. Three commenters asserted
that the definition should not include, in addition to excavation
activities, flooding and draining activities. A number of commenters
stated that the definition does not contain any discussion concerning
what constitutes an adverse effect.
These recent court decisions do not affect the definition of the
term ``loss of waters of the United States.'' Because of these
decisions, the Corps does not regulate excavation of waters of the
United States under Section 404 of the Clean Water Act if the
excavation activity results only in incidental fallback of excavated
material. Excavation activities that result in more than incidental
fallback of dredged material into waters of the United States require a
Section 404 permit and may be authorized by NWP. District engineers
will determine whether or not a particular excavation activity requires
a Section 404 permit based on the degree of the discharge associated
with the excavation activity. In summary, if the discharge resulting
from the excavation activity is only incidental fallback, then no
Section 404 permit is required. We believe that retaining excavation
activities in this definition will reduce confusion for the regulated
public because some excavation activities in waters of the United
States are still regulated under Section 404 and to exclude excavation
activities from this definition would be misleading.
Since the Corps and EPA's revisions to the definition of
``discharge of dredged material'' promulgated on August 25, 1993, were
overturned, the criteria concerning what constitutes an adverse effect
for the purposes of Section 404 of the Clean Water Act has become
narrower in scope. Regulatory Guidance Letters 90-5 and 88-06 were
issued prior to the August 25, 1993, rule and provide guidance relevant
to this issue. An activity that converts a wetland to another use can
be considered a loss of waters of the United States and regulated under
Section 404 if that activity causes the loss of, or substantially
modifies, waters of the United States by eliminating or greatly
reducing the principal valuable functions of those waters. Losses of
waters of the United States can occur either by direct impacts (e.g.,
covering by fill) or by closely-related indirect impacts (e.g., the
changes in vegetation that occur after a swamp is flooded by
constructing a dam, killing all of the trees in the flooded area). Any
indirect adverse effects factored into the acreage measurement of
``loss of waters of the United States'' must eliminate or substantially
impair the principal valuable functions that the waterbody provided
prior to conducting the activity. Indirect adverse effects such as
backwater flooding and dewatering are more strongly related to the
discharge and should be included in the loss of waters of the United
States if they result in substantial, long-term adverse effects on the
aquatic environment. Excavation activities that result only in
incidental fallback and waters affected by that excavation activity
should not be calculated into the acreage loss unless the permittee
cannot conduct the excavation activity without the associated discharge
that is regulated under Section 404.
For the purposes of the proposed NWP notification thresholds, we
have modified the sentence addressing the loss of stream bed by adding
the phrase ``perennial and intermittent'' before the word stream,
because the proposed NWPs require notification only for those
activities that result in the discharge of dredged or fill material
into waters of the United States due to filling or excavating perennial
or intermittent stream beds.
One commenter requested that the definition of ``loss of waters of
the United States'' include the effects of habitat fragmentation, which
could adversely affects some functions and values of waters of the
United States.
We disagree, because this effect is beyond the Corps scope of
analysis for Section 404 activities. Many activities that result in
habitat fragmentation do not result in a discharge of dredged or fill
material into waters of the United States, and are not regulated under
Section 404 of the Clean Water Act.
We have added sentences to this definition to differentiate between
permanent and temporary losses of waters of the United States.
Temporary losses of waters of the United States are not included in the
measurement of loss of waters of the United States. We are proposing to
modify the definition of the term ``loss of waters of the United
States'' as discussed above.
Noncontiguous wetland: In response to the proposed definition, we
received comments that were similar to the comments received for the
proposed definition of ``contiguous wetland,'' which were discussed
above. Several commenters stated that the proposed definition is
unclear. A commenter stated that noncontiguous wetlands are isolated
wetlands. Another commenter recommended that the break between
contiguous and non-contiguous waters should be based on topography or
hydrologic influence, not the type of channel between the wetland and
the waterbody. Another commenter stated
[[Page 39353]]
that the part of the definition referring to ``a linear aquatic system
with a defined channel to the otherwise contiguous wetland'' needs to
be clarified and that the term ``linear aquatic system'' needs to be
defined. This commenter also recommended that the Corps include
examples and explanatory statements to describe how contiguous and
noncontiguous wetlands differ from each other. One commenter
recommended that the definition should state that noncontiguous
wetlands do not share a common groundwater connection with other waters
of the United States.
To increase protection of the aquatic environment, we are proposing
to prohibit the use of most of the new NWPs in non-tidal wetlands
adjacent to tidal waters instead of prohibiting the use of these NWPs
in non-tidal wetlands contiguous to tidal waters. Therefore, the
definition of the term ``noncontiguous wetland'' has been removed from
the ``Definitions'' section of the NWPs.
Non-tidal wetland: No comments were received on the proposed
definition. We are proposing to retain this definition.
Perennial stream: One commenter requested that the Corps, in the
definition of this term, distinguish between perennial streams and
drainage ditches. Another commenter stated that the definition should
be based on the duration of flow, not on the position of stream bed
relative to the water table.
The definition of this term should not distinguish between
perennial streams and drainage ditches because some streams have been
channelized to improve local drainage. These streams, which are still
waters of the United States, are considered drainage ditches for the
purposes of Section 404(f). The maintenance of these channelized
streams as drainage ditches is exempt from Section 404 permit
requirements. As previously discussed in this section, we believe that
it is appropriate to consider the source of water when classifying
streams as ephemeral, intermittent, or perennial. The definitions for
these stream types focus on how long flows in the channel over the
course of a year, but the source of the flowing water is also
important. It is important to distinguish between natural and
artificial sources of water when classifying stream types for the
purposes of the NWPs. We have modified the second sentence of the
definition, to make it clearer that the water in the stream channel is
due to the relative position of the water table (i.e., groundwater
flows into the stream channel, because the water table is above the
stream bed). We are proposing to modify the definition of this term as
discussed above.
Riffle and pool complexes: One commenter questioned whether or not
riffle and pool complexes are limited to perennial streams. Another
commenter stated that the definition should include a reference to 40
CFR Part 230.45. One commenter remarked that the word ``of'' should be
removed from before the word ``movement.'' Two commenters stated that
riffle and pool complexes are not limited to perennial streams but may
occur in intermittent and ephemeral streams. One commenter agreed that
the definition should be limited to perennial streams and suggested
that the definition should recognize that riffle and pool complexes are
often important spawning habitats. A commenter requested that the
definition provide a minimum threshold for the ratio of riffles, pools,
and flats that would be considered as riffle and pool complexes because
some Corps districts consider all ratios except 100% flat as riffle and
pool complexes.
We agree that the definition should be the same as the definition
in 40 CFR Part 230.45 and have replaced the proposed definition with
the definition found at 40 CFR Part 230.45. We cannot provide a minimum
threshold for the ratio of riffles, pools, and flats to be considered
as a riffle and pool complex. District engineers will determine which
segments of streams contain riffle and pool complexes. We are proposing
to modify the definition of this term as discussed above.
Stormwater management: One commenter recommended that the
definition should include replenishment of groundwater as one of the
purposes of stormwater management. Another commenter stated that the
definition should specifically refer to changes in water turbidity. Two
commenters said that the definition should not be limited to the
mitigation of negative impacts resulting from urbanization, but should
recognize that stormwater management is used to mitigate land
modification, such as the construction of roads in rural areas. One
commenter suggested that the definition state that stormwater
management reduces adverse impacts on aquatic resources.
The primary purposes of stormwater management are to reduce
degradation of water quality and aquatic habitat quality and reduce
flooding. Although certain stormwater management techniques are used to
increase infiltration of stormwater into the soil, it is not our intent
to list every function provided by stormwater management in the
definition. Stormwater infiltration techniques are often used to offset
losses of local infiltration due to increases in the amount of
impervious surface in the project area, so that increases in stormwater
runoff do not increase downstream erosion, water quality degradation,
and flooding.
We disagree that the definition should specifically reference
changes in water turbidity. Turbidity is simply one measure of water
quality, and is already adequately addressed in the definition. We
concur that the definition should not be limited to urbanization, and
will replace this word with the phrase ``changes in land use.'' We will
add the phase ``on the aquatic environment'' to the end of the
definition to provide further clarification of the purpose of
stormwater management. We are proposing to modify the definition of
this term as discussed above.
Stormwater management facilities: One commenter stated that the
proposed definition is far more limited and does not include the full
description provided in text of the NWP for stormwater management
facilities. This commenter recommended that the definition include the
following stormwater management activities: water control structures,
outfall structures, emergency spillways, constructed wetland basins,
wetland bottom channels, filter basins, infiltration basins, channels,
and ditches. Another commenter recommended that the definition should
also include debris basins and dams, storm drains, levees, and
channels. A third commenter suggested that the definition include
retarding basins.
It is not our intent to include a comprehensive list of stormwater
management techniques, practices, or structures in the definition. The
inclusion of stormwater retention and detention ponds and best
management practices in the definition is intended only to provide
examples. We are proposing to retain this definition.
Tidal wetland: One commenter stated that the definition at 33 CFR
Part 328.3(d) does not include the qualification that the high tide
line must be inundated by tidal waters at least 2 times per month and
recommended that this part of the proposed definition should be
eliminated from the definition because of the great differences in
daily tide heights. Two commenters said that tidal waters occur only
below the mean high water line and that the Corps is attempting to
extend its jurisdictional authority by defining tidal waters to include
spring high tides. One of these commenters stated that the proposed
definition is
[[Page 39354]]
contrary to Section 10 of the Rivers and Harbors Act.
The definition proposed in the July 1, 1998, Federal Register
notice is not contrary to current Corps regulations and definitions.
All waters subject to the ebb and flow of the tide are waters of the
United States, including spring high tides. Spring high tides occur two
times per lunar month when the sun, moon, and earth are aligned with
each other and exert the greatest gravitational influence on tidal
waters, resulting in the highest and lowest tides that occur during the
tidal cycle. It is important to recognize that spring high tides occur
only two times per lunar month to differentiate between high tides
regularly caused by gravitational interactions of the sun, moon, and
earth and storm surges of tidal waters caused by atmospheric phenomena.
To provide further clarification, we will insert the word ``lunar''
before the word ``month'' in the last sentence of this definition.
Tidal waters extend landward of the mean high tide line. The ``mean
high tide line'' is an average of tidal heights over the course of a
complete monthly tidal cycle. Therefore, half of the monthly tides will
be landward of the mean high tide line and half of the monthly tides
will be channelward of the mean high tide line. Tidal waters landward
of the mean high tide line are waters of the United States, but they
are not navigable waters of the United States. Therefore, tidal waters
landward of the mean high tide line are subject to Section 404 of the
Clean Water Act, but not Section 10 of the Rivers and Harbors Act. See
33 CFR 329.12 for a discussion of the geographic and jurisdictional
limit of oceanic and tidal waters relative to Section 10 of the Rivers
and Harbors Act. The definition of this term has been modified as
discussed above.
Vegetated shallows: No comments were received concerning the
proposed definition of this term. We are proposing to retain this
definition.
Waterbody: One commenter is unsure why a definition is required for
this term because, according to the commenter, the definition does not
appear anywhere else in the Corps regulatory program. This commenter
also stated that wetlands are waterbodies, but often do not have
discernible high water marks. This commenter recommended the
elimination of this term from the ``Definitions'' section of the NWPs.
Another commenter stated that the proposed definition does not have a
frequency threshold for the establishment of an ordinary high water
mark (OHWM) and recommended that the definition include such a
threshold. One commenter stated that the Corps should clarify how the
definition relates to open waters and that the definition should
clarify that waterbodies may or may not be regulated under Section 404
of the Clean Water Act. Another commenter recommended that the
definition exclude farm ponds.
The word ``waterbody'' was used throughout the July 1, 1998,
Federal Register notice for the proposed new and modified NWPs. It is
also used in the NWP regulations issued on November 22, 1991 (56 FR
59110-59147), particularly for the definition of the term ``single and
complete project'' at 33 CFR Part 330.2(i). This word is also used in
NWP 29 and General Condition 4. The intent of the definition is to
ensure consistent application of the term for the NWPs.
Waterbodies consist of open and flowing waters, as well as
contiguous wetlands. We will modify this definition to include
contiguous wetlands, which may not have an OHWM. For example, a lake
may be surrounded by a wetland fringe inhabited by emergent wetland
vegetation. The OHWM may or may not be the same as the wetland
boundary, which may extend beyond the OHWM. Wetlands contiguous to open
or flowing waters should be considered as part of the same waterbody. A
wetland can be considered a waterbody if it is inundated with flowing
or standing water.
To provide further clarification to distinguish between wetlands
and open and flowing waters, we have added a definition for the term
``open water,'' which is often used in these NWPs. We are proposing to
modify this definition as discussed above.
Additional Definitions: In response to the July 1, 1998, Federal
Register notice, we received several comments requesting definitions of
additional terms used in the NWP program. Some of these terms will be
added to the definition section of the NWPs, as discussed below.
For the purposes of NWP 27 and the NWP conditions addressing
compensatory mitigation, we are proposing to add definitions of the
terms ``compensatory mitigation,'' ``restoration,'' ``creation,''
``enhancement,'' and ``preservation.'' The definitions for these terms
that were developed for the ``Federal Guidance for the Establishment,
Use, and Operation of Mitigation Banks,'' published in the November 28,
1995, issue of the Federal Register (60 FR 58605-58614) will be used in
the ``Definitions'' section of the NWPs.
Two commenters requested that the Corps include a definition of the
word ``aquatic'' in the NWPs. They believe that the Corps should
include a definition of this word that reflects the limits of its
regulatory authority or replace this word with the phrase ``waters of
the United States'' or ``navigable waters.''
We believe that is not necessary to include a definition of this
word for the NWP program. If an aquatic area is not a water of the
United States, then it is not subject to either Section 404 or Section
10.
In response to comments received in response to our proposed
definition of the term ``waterbody,'' we are proposing to add a
definition of the term ``open water'' because this term is used in NWPs
27 and 39 and General Conditions 9 and 19.
One commenter requested a definition of the phrase ``projects that
may have more than minimal adverse effects on the aquatic
environment.'' This commenter believes that a definition is necessary
to provide clarification to district engineers and regulated public.
We disagree with this comment. For every request for NWP
authorization, district engineers must determine whether or not that
particular project will result in more than minimal adverse effects.
This determination is made on a case-by-case basis, and depends on many
factors which cannot be captured in a simple definition. Therefore, we
will not include a definition of this phrase.
Another commenter suggested including a definition of ``region,''
because division and district engineers should utilize this term
consistently.
We do not agree that it is necessary to define the term ``region''
for the NWPs, because no specific definition is required. A region is
simply a geographic area. For the purposes of regional conditioning or
revocation of the NWPs, a region may be a waterbody, watershed, sub-
watershed, county, state, or Corps district. Corps districts review
cumulative adverse effects on the aquatic environment on a watershed
basis. Division or district engineers can determine which scale of
region is appropriate. If cumulative adverse effects are more than
minimal in a single sub-watershed, then it would be appropriate to
suspend or revoke NWP only in that sub-watershed. If the cumulative
adverse effects on the aquatic environment due to an NWP are more than
minimal in an entire state, then the appropriate region would be the
state. For these reasons, we will not add a definition of the term
``region'' to the NWPs.
[[Page 39355]]
One commenter requested that we add a definition of the term
``restored channel'' to the NWPs.
We disagree that such a definition is necessary because
``restoration,'' as presently used for wetland compensatory mitigation
projects, can apply to streams as well. The restoration of a stream
channel reestablishes the stream channel where it previously existed.
Two commenters recommended that we include a definition of the term
``single and complete project'' with the NWPs. One commenter stated
that the definition in 33 CFR Part 330.2(i) is confusing and difficult
to implement, especially with respect to the cumulative adverse effects
that occur when a linear project crosses single waterbody several
times. Another commenter requested a definition of this term that would
include all current and future phases of development of land under a
single common ownership which has been subdivided or transferred to
facilitate development.
We believe that this term does not need to be redefined. For
convenience, we are proposing to add a definition of the term ``single
and complete project'' to the ``Definitions'' section of the NWPs,
which paraphrases the definition at 33 CFR Part 330.2(i). For linear
projects, district engineers will continue to assess cumulative adverse
effects on the aquatic environment to determine if the project can be
authorized by NWPs. If the adverse effects on the aquatic environment
are more than minimal, individually or cumulatively, the District
Engineer will exercise discretionary authority and require an
individual permit for the project. For subdivisions, the subdivision
provision of proposed NWP 39 as well as 33 CFR Part 330.2(i) will be
used to determine acreage limits for particular subdivisions. In
addition, district engineers will consider whether or not each phase of
a multi-phase project can be considered as a separate single and
complete project. If each phase has independent utility, then each
phase can be considered a separate single and complete project.
One commenter requested that the definition of the term ``small
perennial stream,'' which was used in NWPs 40 and 44, should be
included in the ``Definitions'' section of the NWPs.
We have deleted the reference to small perennial streams from NWPs
40 and 44. Therefore, no definition of this term is needed.
One commenter recommended that the Corps include a definition of
the term ``stream'' in the NWPs. Another commenter requested the
inclusion of a definition of ``stream bed'' because the definition on
page 36042 of the July 1, 1998, Federal Register notice is a definition
of ``stream,'' not ``stream bed.'' The term ``stream bed'' is also used
throughout the NWPs.
We agree that the definition on page 36042 of the July 1, 1998,
Federal Register notice is actually a definition of the term ``stream''
and believe that it is unnecessary to include a definition of
``stream'' in the NWPs since the term ``stream bed'' is used throughout
the NWPs, particularly in the context of the 500 linear foot
notification requirement. Therefore, we are proposing to add a
definition of the term ``stream bed'' to the ``Definitions'' section of
the NWPs. The limits of the stream bed are identified by the location
of the ordinary high water marks on either side of the stream bed. Any
wetlands contiguous to the stream bed, but outside of the ordinary high
water mark, are not part of the stream bed.
Due to changes in the NWPs made in response to the comments
received in reply to the July 1, 1998, Federal Register notice, we are
proposing to add definitions for several more terms used in the NWPs.
These terms include: ``project area'' and ``independent utility.'' We
are also proposing to add a definition of the term ``permanent above-
grade fill'' to the ``Definitions'' section since this term is used in
proposed General Condition 27.
One commenter requested that the Corps include definitions of
``important spawning areas'' and ``water quality management plan'' in
this section.
We disagree that definitions of these terms are necessary. District
engineers will determine which areas are important spawning areas. The
content of the water quality management plan, if required by General
Condition 9, is also at the discretion of the District Engineer.
VI. Comments on Other Issues in July 1, 1998, Federal Register Notice
Other Suggested NWPs
In response to the December 13, 1996, Federal Register notice,
several commenters recommended additional replacement NWPs. We do not
believe that development of more new NWPs is warranted at this time.
Some of the recommended NWPs are for activities in areas that are not
considered waters of the United States and others are for activities
that are exempt from permit requirements of Section 404 of the Clean
Water Act and Section 10 of the Rivers and Harbors Act.
Maintenance of Landfill Surfaces: Most commenters agreed with the
statement that routine maintenance of landfill surfaces does not
require a Section 404 permit. Several commenters requested that we
reiterate such language in the final Federal Register notice for the
NWPs, and further requested that the Corps also include a discussion of
the 9th Circuit decision in the Resource Investment Incorporated (RII)
v. Corps of Engineers case. One commenter disagreed with the statement
that most landfills are constructed in uplands, stating that there are
a number of landfills constructed on wetlands.
Ponded areas that develop on landfill surfaces are not waters of
the United States. Although a landfill may be constructed in wetlands,
the landfill replaces the waterbody with dry land. Therefore, that area
is no longer a water of the United States. The landfill cap may develop
ponded areas that may be inhabited by wetland vegetation, but these
areas must be repaired to prevent additional air and water pollution.
These maintenance activities do not require a Section 404 permit
because these ponded areas are not waters of the United States. The
preamble to 33 CFR Part 328 in the November 13, 1986, Federal Register
(51 FR 41217, Section 328.3) states that ``water filled depressions
created in dry land incidental to construction activity * * *'' are not
considered waters of the United States ``* * * until the construction
or excavation operation is abandoned and the resulting body of water
meets the definition of waters of the United States.'' The landfill is
not abandoned because of the routine maintenance required by law to
keep the landfill surface at the designed grade. Since routine
maintenance of landfill surfaces does not require a Section 404 permit,
we will not be developing an NWP for this activity. With regard to
requests to include a discussion of the RII case, this matter is still
in litigation and such a discussion is inappropriate at this time.
Maintenance and Filling of Ditches Adjacent to Roads and Railways
Although a few commenters requested a new NWP authorizing the
maintenance and filling of ditches adjacent to roads and railways, such
a NWP is not necessary. In response to the July 1, 1998, Federal
Register notice, most commenters stated that this activity is exempt
from regulation or is outside of the Corps jurisdiction. One commenter
stated that wet weather conveyances should not be regulated because it
would greatly increase the Corps workload. Another commenter noted
that, to meet safety design standards, transportation agencies often
[[Page 39356]]
widen and flatten side slopes of the embankment by adding fill to one
side of the ditch.
The maintenance of roadside or railroad ditches constructed in
uplands does not require a Section 404 permit since these ditches are
not waters of the United States, even though they may support wetland
vegetation. The preamble to 33 CFR Part 328.3, as published in the
November 13, 1986, issue of the Federal Register (51 FR 41217), states
that ``non-tidal drainage or irrigation ditches excavated on dry land''
are generally not considered to be waters of the United States. Filling
these ditches to widen the road or railroad bed does not require a
Section 404 permit.
If these roadside or railroad ditches are constructed in waters of
the United States, the maintenance of these ditches is exempt from
Section 404 permit requirements (see CFR Part 323.4(a)(3)), provided
the ditch is restored to its original dimensions and configuration.
However, the construction of these ditches in waters of the United
States requires a Section 404 permit and may be authorized by an NWP,
an individual permit, or a regional general permit. A Corps permit is
required to widen the road or railroad bed if the ditches adjacent to
the existing road or railroad bed were constructed in waters of the
United States. The construction or maintenance of roadside and railroad
ditches in navigable waters of the United States requires a Section 10
permit. Furthermore, if the maintenance of a roadside ditch includes
reconfiguring that ditch, the activity does not qualify for the
exemption at 33 CFR Part 323.4(a)(3).
Maintenance of Water Treatment Facilities
A commenter requested that the Corps consider a new NWP for the
maintenance of water treatment facilities, such as the removal of
material from constructed settling lagoons and associated constructed
wetlands, maintenance and de-watering of stock ponds for livestock, and
maintenance of recharge ponds for water supplies. One commenter said
that the Corps description on page 36063 of the July 1, 1998, Federal
Register notice characterizing exempt activities related to stock ponds
contained errors (e.g., water quality benefits ``test'').
Water treatment facilities constructed in uplands do not require a
Section 404 permit for maintenance activities. We do not generally
consider ``[a]rtificial lakes or ponds created by excavating and/or
diking dry land to collect and retain water and which are used
exclusively for such purposes as stock watering, irrigation, settling
basins, or rice growing'' to be waters of the United States. (Refer to
the preamble for 33 CFR Part 328.3, as published in the November 13,
1986, issue of the Federal Register (51 FR 41217).)
The proposed modifications to NWP 3 and NWP 7, which authorize the
removal of accumulated sediment in the vicinity of existing structures,
should address some of these issues. Removal of sediments from
detention and settling basins constructed with a Section 404 permit may
be authorized by NWP 7 as long as the maintenance activity is
associated with an intake or outfall structure. Maintenance of recharge
ponds constructed in uplands does not require a Section 404 permit, but
the maintenance of these ponds constructed in waters of the United
States may be authorized by existing NWPs, such as NWPs 3, 13, or 18.
Therefore, these activities have not been specifically included in the
proposed NWPs.
With regard to comments relating to stock pond exemptions, we
provide the following clarification: The construction of stock ponds is
an exempt activity; thus, activities necessary for the construction and
maintenance of stock ponds are exempt from Section 404 permit
requirements. Maintenance activities, such as the deepening of a stock
pond, do not require a Section 404 permit provided the activity does
not increase in the lateral extent of the pond. Additionally, the
construction or maintenance activity may not bring a water into a use
to which it was not previously subject and it may not impair the flow
or circulation or reduce the reach of such waters.
NWP 31: In the July 1, 1998, Federal Register notice, we responded
to a request to expand the scope of NWP 31 to authorize other
maintenance activities associated with flood control and maintenance of
water supply facilities. In response to this part of the July 1, 1998,
Federal Register notice, several commenters addressed issues related to
NWP 31. Two commenters suggested that routine maintenance activities
should be omitted from the requirements of the Corps regulatory
program. Another requested that the Corps explain why a single activity
may be authorized by three different NWPs, in this case NWP 3, 7, or 18
to authorize removal of accumulated sediments.
Any maintenance activity that involves a discharge of dredged or
fill material into waters of the United States requires a Section 404
permit, unless that activity qualifies for the exemption under Section
404(f). We cannot expand the exemptions in Section 404(f); adding other
maintenance activities to Section 404(f) requires modification of the
Clean Water Act through the legislative process. Therefore, routine
maintenance activities cannot be omitted from the Corps Regulatory
Program.
NWPs 3, 7, and 18 were developed to authorize specific activities.
Although we are proposing to modify both NWPs 3 and 7 to authorize the
removal of accumulated sediments, this activity is subject to different
terms in these NWPs, based on the nature of the work. The removal of
accumulated sediments in the vicinity of existing structures authorized
by paragraph (ii) of NWP 3 will allow permittees to restore the
waterway in the immediate vicinity of structure and protect that
structure with rip rap. The purpose of part (ii) of NWP 7 is to restore
outfalls, intakes, small impoundments, and canals to original design
capacities design configurations. NWP 7 authorizes maintenance dredging
or maintenance excavation of canals associated with intakes and
outfalls; paragraph (ii) of NWP 3 does not authorize that activity. NWP
18 authorizes minor discharges, which is not the same as the activities
authorized by NWPs 3 and 7.
We continue to believe that NWP 31 does not require further
modification at this time, for the same reasons discussed in the July
1, 1998, Federal Register notice.
Regional Conditioning of Nationwide Permits: Concurrent with this
Federal Register notice, District Engineers are issuing local public
notices. Division and district engineers have proposed regional
conditions or revocation of some or all of the NWPs contained in this
Federal Register notice. Regional conditions may also be required by
State Section 401 water quality certification or Coastal Zone
Management Act consistency determinations. District engineers will
announce regional conditions or revocations by issuing local public
notices. Information on regional conditions and revocation can be
obtained from the appropriate District Engineer, as indicated below or
at the District's Internet home page. Furthermore, this and additional
information can be obtained on the Internet at the Corps Regulatory
Home Page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.
ALABAMA
Mobile District Engineer, ATTN: CESAM-OP-S, 109 St. Joseph
Street, Mobile, AL 36602-3630
[[Page 39357]]
ALASKA
Alaska District Engineer, ATTN: CEPOA-CO-R, P.O. Box 898,
Anchorage, AK 99506-0898
ARIZONA
Los Angeles District Engineer, ATTN: CESPL-CO-R, P.O. Box 2711,
Los Angeles, CA 90053-2325
ARKANSAS
Little Rock District Engineer, ATTN: CESWL-CO-P, P.O. Box 867,
Little Rock, AR 72203-0867
CALIFORNIA
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,
Sacramento, CA 95814-4794
COLORADO
Albuquerque District Engineer, ATTN: CESPA-CO-R, 4101 Jefferson
Plaza NE, Room 313, Albuquerque, NM 87109
CONNECTICUT
New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia
Road, Concord, MA 01742-2751
DELAWARE
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker
Building, 100 Penn Square East Philadelphia, PA 19107-3390
FLORIDA
Jacksonville District Engineer, ATTN: CESAJ-CO-R, P.O. Box 4970,
Jacksonville, FL 32202-4412
GEORGIA
Savannah District Engineer, ATTN: CESAS-OP-F, P.O. Box 889,
Savannah, GA 31402-0889
HAWAII
Honolulu District Engineer, ATTN: CEPOH-ET-PO, Building 230,
Fort Shafter, Honolulu, HI 96858-5440
IDAHO
Walla Walla District Engineer, ATTN: CENWW-OP-RF, 210 N. Third
Street, City-County Airport, Walla Walla, WA 99362-1876
ILLINOIS
Rock Island District Engineer, ATTN: CEMVR-RD, P.O. Box 004,
Rock Island, IL 61204-2004
INDIANA
Louisville District Engineer, ATTN: CELRL-OR-F, P.O. Box 59,
Louisville, KY 40201-0059
IOWA
Rock Island District Engineer, ATTN: CEMVR-RD, P.O. Box 2004,
Rock Island, IL 61204-2004
KANSAS
Kansas City District Engineer, ATTN: CENWK-OD-P, 700 Federal
Building, 601 E. 12th Street, Kansas City, MO 64106-2896
KENTUCKY
Louisville District Engineer, ATTN: CELRL-OR-F, P.O. Box 59,
Louisville, KY 40201-0059
LOUISIANA
New Orleans District Engineer, ATTN: CEMVN-OD-S, P.O. Box 60267,
New Orleans, LA 70160-0267
MAINE
New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia
Road, Concord, MA 01742-2751
MARYLAND
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
MASSACHUSETTS
New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia
Road, Concord, MA 01742-2751
MICHIGAN
Detroit District Engineer, ATTN: CELRE-CO-L, P.O. Box 1027,
Detroit, MI 48231-1027
MINNESOTA
St. Paul District Engineer, ATTN: CEMVP-CO-R, 190 Fifth Street
East, St. Paul, MN 55101-1638
MISSISSIPPI
Vicksburg District Engineer, ATTN: CEMVK-OD-F, 4155 Clay Street,
Vicksburg, MS 39183-3435
MISSOURI
Kansas City District Engineer, ATTN: CENWK-OD-P, 700 Federal
Building, 601 E. 12th Street, Kansas City, MO 64106-2896
MONTANA
Omaha District Engineer, ATTN: CENWO-OP-R, 215 N. 17th Street,
Omaha, NE 68102-4978
NEBRASKA
Omaha District Engineer, ATTN: CENWO-OP-R, 215 N. 17th Street,
Omaha, NE 68102-4978
NEVADA
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,
Sacramento, CA 95814-2922
NEW HAMPSHIRE
New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia
Road, Concord, MA 01742-2751
NEW JERSEY
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker
Building, 100 Penn Square East, Philadelphia, PA 19107-3390
NEW MEXICO
Albuquerque District Engineer, ATTN: CESWA-CO-R, 4101 Jefferson
Plaza NE, Room 313, Albuquerque, NM 87109
NEW YORK
New York District Engineer, ATTN: CENAN-OP-R, 26 Federal Plaza,
New York, NY 10278-9998
NORTH CAROLINA
Wilmington District Engineer, ATTN: CESAW-CO-R, P.O. Box 1890,
Wilmington, NC 28402-1890
NORTH DAKOTA
Omaha District Engineer, ATTN: CENWO-OP-R, 215 North 17th
Street, Omaha, NE 68102-4978
OHIO
Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street,
Huntington, WV 25701-2070
OKLAHOMA
Tulsa District Engineer, ATTN: CESWT-OD-R, P.O. Box 61, Tulsa,
OK 74121-0061
OREGON
Portland District Engineer, ATTN: CENWP-PE-G, P.O. Box 2946,
Portland, OR 97208-2946
PENNSYLVANIA
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
RHODE ISLAND
New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia
Road, Concord, MA 01742-2751
SOUTH CAROLINA
Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919,
Charleston, SC 29402-0919
SOUTH DAKOTA
Omaha District Engineer, ATTN: CENWO-OP-R, 215 North 17th
Street, Omaha, NE 68102-4978
TENNESSEE
Nashville District Engineer, ATTN: CELRN-OR-F, P.O. Box 1070,
Nashville, TN 37202-1070
TEXAS
Ft. Worth District Engineer, ATTN: CESWF-OD-R, P.O. Box 17300,
Ft. Worth, TX 76102-0300
UTAH
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,
CA 95814-2922
VERMONT
New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia
Road, Concord, MA 01742-2751
VIRGINIA
Norfolk District Engineer, ATTN: CENAO-OP-R, 803 Front Street,
Norfolk, VA 23510-1096
WASHINGTON
Seattle District Engineer, ATTN: CENWS-OP-RG, P.O. Box 3755,
Seattle, WA 98124-2255
WEST VIRGINIA
Huntington District Engineer, ATTN: CELRH-ORF, 502 8th Street,
Huntington, WV 25701-2070
WISCONSIN
St. Paul District Engineer, ATTN: CEMVP-CO-R, 190 Fifth Street
East, St. Paul, MN 55101-1638
WYOMING
Omaha District Engineer, ATTN: CENWO-OP-R, 215 North 17th
Street, NE 68102-4978
DISTRICT OF COLUMBIA
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
PACIFIC TERRITORIES
Honolulu District Engineer, ATTN: CEPOH-ET-PO, Building 230,
Fort Shafter, Honolulu, HI 96858-5440
PUERTO RICO & VIRGIN ISLANDS
Jacksonville District Engineer, ATTN: CESAJ-CO-R, P.O. Box 4970,
Jacksonville, FL 32202-4412
Dated: July 13, 1999.
Approved:
Hans A. Van Winkle,
Brigadier General, U.S. Army, Deputy Commander for Civil Works.
Authority
Accordingly, we are proposing to issue new NWPs, modify existing
NWPs, and add conditions and to add NWP definitions under the authority
of Section 404(e) of the Clean Water Act
[[Page 39358]]
(33 U.S.C. 1344) and Section 10 of the Rivers and Harbors Act (33
U.S.C. 403).
Nationwide Permits, Conditions, Further Information, and
Definitions
A. Index of Nationwide Permits, Conditions, Further Information, and
Definitions
Nationwide Permits
3. Maintenance
7. Outfall Structures and Maintenance
12. Utility Line Activities
14. Linear Transportation Crossings
27. Stream and Wetland Restoration Activities
39. Residential, Commercial, and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
Nationwide Permit General Conditions
1. Navigation
2. Proper Maintenance
3. Soil Erosion and Sediment Controls
4. Aquatic Life Movements
5. Equipment
6. Regional and Case-by-Case Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification
14. Compliance Certification
15. Use of Multiple Nationwide Permits
16. Water Supply Intakes
17. Shellfish Beds
18. Suitable Material
19. Mitigation
20. Spawning Areas
21. Management of Water Flows
22. Adverse Effects from Impoundments
23. Waterfowl Breeding Areas
24. Removal of Temporary Fills
25. Designated Critical Resource Waters
26. Impaired Waters
27. Fills Within the 100-year Floodplain
Further Information
Definitions
Aquatic Bench
Best Management Practices
Compensatory mitigation
Creation
Drainage ditch
Enhancement
Ephemeral stream
Farm tract
Independent utility
Intermittent stream
Loss of waters of the United States
Non-tidal wetland
Open water
Perennial stream
Permanent above-grade fill
Preservation
Project area
Restoration
Riffle and pool complex
Single and complete project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Tidal wetland
Vegetated shallows
Waterbody
B. Nationwide Permits and Conditions
3. Maintenance. Activities related to: (i) The repair,
rehabilitation, or replacement of any previously authorized, currently
serviceable, structure, or fill, or of any currently serviceable
structure or fill authorized by 33 CFR 330.3, provided that the
structure or fill is not to be put to uses differing from those uses
specified or contemplated for it in the original permit or the most
recently authorized modification. Minor deviations in the structure's
configuration or filled area including those due to changes in
materials, construction techniques, or current construction codes or
safety standards which are necessary to make repair, rehabilitation, or
replacement are permitted, provided the adverse environmental effects
resulting from such repair, rehabilitation, or replacement are minimal.
Currently serviceable means useable as is or with some maintenance, but
not so degraded as to essentially require reconstruction. This
nationwide permit authorizes the repair, rehabilitation, or replacement
of those structures or fills destroyed or damaged by storms, floods,
fire or other discrete events, provided the repair, rehabilitation, or
replacement is commenced, or is under contract to commence, within two
years of the date of their destruction or damage. In cases of
catastrophic events, such as hurricanes or tornadoes, this two-year
limit may be waived by the District Engineer, provided the permittee
can demonstrate funding, contract, or other similar delays.
(ii) Discharges of dredged or fill material, including excavation,
into all waters of the United States to remove accumulated sediments
and debris in the vicinity of, and within, existing structures (e.g.,
bridges, culverted road crossings, water intake structures, etc.) and
the placement of new or additional rip rap to protect the structure,
provided the permittee notifies the District Engineer in accordance
with General Condition 13. The removal of sediment is limited to the
minimum necessary to restore the waterway in the immediate vicinity of
the structure to the approximate dimensions that existed when the
structure was built, but cannot extend further than 200 feet in any
direction from the structure. The placement of rip rap must be the
minimum necessary to protect the structure or to ensure the safety of
the structure. All excavated materials must be deposited and retained
in an upland area unless otherwise specifically approved by the
District Engineer under separate authorization. Any bank stabilization
measures not directly associated with the structure will require a
separate authorization from the District Engineer.
(iii) Discharges of dredged or fill material, including excavation,
into all waters of the United States for activities associated with the
restoration of upland areas damaged by a storm, flood, or other
discrete event, including the construction, placement, or installation
of upland protection structures and minor dredging to remove
obstructions in a water of the United States. (Uplands lost as a result
of a storm, flood, or other discrete event can be replaced without a
Section 404 permit provided the uplands are restored to their original
pre-event location. This NWP is for the activities in waters of the
United States associated with the replacement of the uplands.) The
permittee must notify the District Engineer, in accordance with General
Condition 13, within 12 months of the date of the damage and the work
must commence, or be under contract to commence, within two years of
the date of the damage. The permittee should provide evidence, such as
a recent topographic survey or photographs, to justify the extent of
the proposed restoration. The restoration of the damaged areas cannot
exceed the contours, or ordinary high water mark, that existed prior to
the damage. The District Engineer retains the right to determine the
extent of the pre-existing conditions and the extent of any restoration
work authorized by this permit. Minor dredging to remove obstructions
from the adjacent waterbody is limited to 50 cubic yards below the
plane of the ordinary high water mark, and is limited to the amount
necessary to restore the pre-existing bottom contours of the waterbody.
The dredging may not be done primarily to obtain fill for any
restoration activities. The discharge of dredged or fill material and
all related work needed to restore the upland must be part of a single
and complete project. This permit cannot be used in conjunction with
NWP 18 or NWP 19 to
[[Page 39359]]
restore damaged upland areas. This permit cannot be used to reclaim
historic lands lost, over an extended period of time, to normal erosion
processes.
Maintenance dredging for the primary purpose of navigation and
beach restoration are not authorized by this permit. This permit does
not authorize new stream channelization or stream relocation projects.
Any work authorized by this permit must not cause more than minimal
degradation of water quality, more than minimal changes to the flow
characteristics of the stream, or increase flooding (See General
Conditions 9 and 21).
Note: This NWP authorizes the repair, rehabilitation, or
replacement of any previously authorized structure or fill that does
not qualify for the Section 404(f) exemption for maintenance. For
example, the repair and maintenance of concrete-lined channels are
exempt from Section 404 permit requirements. (Sections 10 and 404)
7. Outfall Structures and Maintenance. Activities related to: (i)
Construction of outfall structures and associated intake structures
where the effluent from the outfall is authorized, conditionally
authorized, or specifically exempted, or are otherwise in compliance
with regulations issued under the National Pollutant Discharge
Elimination System program (Section 402 of the Clean Water Act), and
(ii) maintenance excavation, including dredging, to remove accumulated
sediments blocking or restricting outfall and intake structures,
accumulated sediments from small impoundments associated with outfall
and intake structures, and accumulated sediments from canals associated
with outfall and intake structures, provided that the activity meets
all of the following criteria:
a. The permittee notifies the District Engineer in accordance with
General Condition 13;
b. The amount of excavated or dredged material must be the minimum
necessary to restore the outfalls, intakes, small impoundments, and
canals to original design capacities and design configurations (i.e.,
depth and width);
c. The excavated or dredged material is deposited and retained at
an upland site, unless otherwise approved by the District Engineer
under separate authorization; and
d. Proper soil erosion and sediment control measures are used to
minimize reentry of sediments into waters of the United States.
The construction of intake structures is not authorized by this
NWP, unless they are directly associated with an authorized outfall
structure. For maintenance excavation and dredging to remove
accumulated sediments, the notification must include information
regarding the original design capacities and configurations of the
facility and the presence of special aquatic sites (e.g., vegetated
shallows) in the vicinity of the proposed work. (Sections 10 and 404)
12. Utility Line Activities. Activities required for the
construction, maintenance and repair of utility lines and associated
facilities in waters of the United States as follows:
(i) Utility lines: The construction, maintenance, or repair of
utility lines, including outfall and intake structures and the
associated excavation, backfill, or bedding for the utility lines, in
all waters of the United States, provided there is no change in
preconstruction contours. A ``utility line'' is defined as any pipe or
pipeline for the transportation of any gaseous, liquid, liquefiable, or
slurry substance, for any purpose, and any cable, line, or wire for the
transmission for any purpose of electrical energy, telephone, and
telegraph messages, and radio and television communication (see Note 1,
below). Material resulting from trench excavation may be temporarily
sidecast (up to three months) into waters of the United States,
provided that the material is not placed in such a manner that it is
dispersed by currents or other forces. The District Engineer may extend
the period of temporary side casting not to exceed a total of 180 days,
where appropriate. In wetlands, the top 6'' to 12'' of the trench
should normally be backfilled with topsoil from the trench.
Furthermore, the trench cannot be constructed in such a manner as to
drain waters of the United States (e.g., backfilling with extensive
gravel layers, creating a french drain effect). For example, utility
line trenches can be backfilled with clay blocks to ensure that the
trench does not drain the waters of the United States through which the
utility line is installed. Any exposed slopes and stream banks must be
stabilized immediately upon completion of the utility line crossing of
each waterbody.
(ii) Utility line substations: The construction, maintenance, or
expansion of a substation facility associated with a power line or
utility line in non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters, provided the activity does not
result in the loss of greater than 1 acre of non-tidal waters of the
United States.
(iii) Foundations for overhead utility line towers, poles, and
anchors: The construction or maintenance of foundations for overhead
utility line towers, poles, and anchors in all waters of the United
States, provided the foundations are the minimum size necessary and
separate footings for each tower leg (rather than a larger single pad)
are used where feasible.
(iv) Access roads: The construction of access roads for the
construction and maintenance of utility lines, including overhead power
lines and utility line substations, in non-tidal waters of the United
States, excluding non-tidal wetlands adjacent to tidal waters, provided
the discharge does not cause the loss of greater than 1 acre of non-
tidal waters of the United States. Access roads shall be the minimum
width necessary (see Note 2, below). Access roads must be constructed
so that the length of the road minimizes the adverse effects on waters
of the United States and as near as possible to preconstruction
contours and elevations (e.g., at grade corduroy roads or geotextile/
gravel roads). Access roads constructed above preconstruction contours
and elevations in waters of the United States must be properly bridged
or culverted to maintain surface flows. All access roads will be
constructed with pervious surfaces.
The term ``utility line'' does not include activities which drain a
water of the United States, such as drainage tile, or french drains;
however, it does apply to pipes conveying drainage from another area.
For the purposes of this NWP, the loss of waters of the United States
includes the filled area plus waters of the United States that are
adversely affected by flooding, excavation, or drainage as a result of
the project. Waters of the United States temporarily affected by
filling, flooding, excavation, or drainage, where the project area is
restored to preconstruction contours and elevations, are not included
in the calculation of permanent loss of waters of the United States.
This includes temporary construction mats (e.g., timber, steel,
geotextile) used during construction and removed upon completion of the
work. Where certain functions and values of waters of the United States
are permanently adversely affected, such as the conversion of a
forested wetland to a herbaceous wetland in the permanently maintained
utility line right-of-way, mitigation will be required to reduce the
adverse effects of the project to the minimal level.
Mechanized landclearing necessary for the construction,
maintenance, or repair of utility lines and the construction,
maintenance and expansion of utility line substations, foundations for
overhead utility lines,
[[Page 39360]]
and access roads is authorized, provided the cleared area is kept to
the minimum necessary and preconstruction contours are maintained as
near as possible. The area of waters of the United States that is
filled, excavated, or flooded must be limited to the minimum necessary
to construct the utility line, substations, foundations, and access
roads. Excess material must be removed to upland areas immediately upon
completion of construction. This NWP may authorize utility lines in or
affecting navigable waters of the United States, even if there is no
associated discharge of dredged or fill material (See 33 CFR Part 322).
Notification: The permittee must notify the District Engineer in
accordance with General Condition 13, if any of the following criteria
are met:
(a) Mechanized land clearing in a forested wetland for the utility
line right-of-way;
(b) A Section 10 permit is required;
(c) The utility line in waters of the United States, excluding
overhead lines, exceeds 500 feet;
(d) The utility line is placed within a jurisdictional area (i.e.,
a water of the United States), and it runs parallel to a stream bed
that is within that jurisdictional area;
(e) Discharges associated with the construction of utility line
substations that result in the loss of greater than \1/4\ acre of
waters of the United States; or
(f) Permanent access roads constructed above grade in waters of the
United States for a distance of more than 500 feet.
Note 1: Overhead utility lines constructed over Section 10
waters and utility lines that are routed in or under Section 10
waters without a discharge of dredged or fill material require a
Section 10 permit; except for pipes or pipelines used to transport
gaseous, liquid, liquefiable, or slurry substances over navigable
waters of the United States, which are considered to be bridges, not
utility lines, and may require a permit from the U.S. Coast Guard
pursuant to Section 9 of the Rivers and Harbors Act of 1899.
However, any discharges of dredged or fill material associated with
such pipelines will require a Corps permit under Section 404.
Note 2: Access roads used for both construction and maintenance
may be authorized, provided they meet the terms and conditions of
this NWP. Access roads used solely for construction of the utility
line must be removed upon completion of the work and the area
restored to preconstruction contours, elevations, and wetland
conditions. Temporary access roads for construction may be
authorized by NWP 33.
Note 3: Where the proposed utility line is constructed or
installed in navigable waters of the United States (i.e., Section 10
waters), copies of the PCN and NWP verification will be sent by the
Corps to the National Oceanic and Atmospheric Administration,
National Ocean Service, for charting the utility line to protect
navigation. (Sections 10 and 404)
14. Linear Transportation Crossings. Activities required for the
construction, expansion, modification, or improvement of linear
transportation crossings (e.g., highways, railways, trails, airport
runways, and taxiways) in waters of the United States, including
wetlands, provided that the activity meets the following criteria:
a. This NWP is subject to the following acreage and linear limits:
(1) For public linear transportation projects in non-tidal waters,
excluding non-tidal wetlands adjacent to tidal waters, provided the
discharge does not cause the loss of greater than 1 acre of waters of
the United States;
(2) For public linear transportation projects in tidal waters or
non-tidal wetlands adjacent to tidal waters, provided the discharge
does not cause the loss of greater than \1/3\ acre of waters of the
United States and the length of fill for the crossing in waters of the
United States does not exceed 200 linear feet, or;
(3) For private linear transportation projects in all waters of the
United States, provided the discharge does not cause the loss of
greater than \1/3\ acre of waters of the United States and the length
of fill for the crossing in waters of the United States does not exceed
200 linear feet;
b. The permittee must notify the District Engineer in accordance
with General Condition 13 if any of the following criteria are met:
(1) The discharge causes the loss of greater than \1/4\ acre of
waters of the United States; or
(2) There is a discharge in a special aquatic site, including
wetlands;
c. The notification must include a mitigation proposal to offset
permanent losses of waters of the United States to ensure that those
losses result only in minimal adverse effects to the aquatic
environment and a statement describing how temporary losses will be
minimized to the maximum extent practicable;
d. For discharges in special aquatic sites, including wetlands, the
notification must include a delineation of the affected special aquatic
sites;
e. The width of the fill is limited to the minimum necessary for
the crossing;
f. This permit does not authorize stream channelization, and the
authorized activities must not cause more than minimal changes to the
hydraulic flow characteristics of the stream, increase flooding, or
cause more than minimal degradation of water quality of any stream (see
General Conditions 9 and 21);
g. This permit cannot be used to authorize non-linear features
commonly associated with transportation projects, such as vehicle
maintenance or storage buildings, parking lots, train stations, or
aircraft hangars; and
h. The crossing is a single and complete project for crossing a
water of the United States. Where a road segment (i.e., the shortest
segment of a road with independent utility that is part of a larger
project) has multiple crossings of streams (several single and complete
projects) the Corps will consider whether it should use its
discretionary authority to require an individual permit.
Note: Some discharges for the construction of farm roads, forest
roads, or temporary roads for moving mining equipment may be
eligible for an exemption from the need for a Section 404 permit
(see 33 CFR 323.4). (Sections 10 and 404)
27. Stream and Wetland Restoration Activities. Activities in waters
of the United States associated with the restoration of former waters,
the enhancement of degraded tidal and non-tidal wetlands and riparian
areas, the creation of tidal and non-tidal wetlands and riparian areas,
and the restoration and enhancement of non-tidal streams and non-tidal
open water areas as follows:
(a) The activity is conducted on:
(1) Non-Federal public lands and private lands, in accordance with
the terms and conditions of a binding wetland enhancement, restoration,
or creation agreement between the landowner and the U.S. Fish and
Wildlife Service (FWS) or the Natural Resources Conservation Service
(NRCS) or voluntary wetland restoration, enhancement, and creation
actions documented by the NRCS pursuant to NRCS regulations; or
(2) Any Federal land; or
(3) Reclaimed surface coal mined lands, in accordance with a
Surface Mining Control and Reclamation Act permit issued by the Office
of Surface Mining or the applicable state agency (the future reversion
does not apply to streams or wetlands created, restored, or enhanced as
mitigation for the mining impacts, nor naturally due to hydrologic or
topographic features, nor for a mitigation bank); or
(4) Any private or public land;
(b) Notification: For activities on any private or public land that
are not described by paragraphs (a)(1), (a)(2), or (a)(3) above, the
permittee must notify the District Engineer in accordance with General
Condition 13; and
[[Page 39361]]
(c) Only native plant species should be planted at the site, if
permittee is vegetating the project site.
Activities authorized by this NWP include, but are not limited to:
the removal of accumulated sediments; the installation, removal, and
maintenance of small water control structures, dikes, and berms; the
installation of current deflectors; the enhancement, restoration, or
creation of riffle and pool stream structure; the placement of in-
stream habitat structures; modifications of the stream bed and/or banks
to restore or create stream meanders; the backfilling of artificial
channels and drainage ditches; the removal of existing drainage
structures; the construction of small nesting islands; the construction
of open water areas; activities needed to reestablish vegetation,
including plowing or discing for seed bed preparation; mechanized
landclearing to remove undesirable vegetation; and other related
activities.
This NWP does not authorize the conversion of a stream to another
aquatic use, such as the creation of an impoundment for waterfowl
habitat. This NWP does not authorize stream channelization. This NWP
does not authorize the conversion of natural wetlands to another
aquatic use, such as creation of waterfowl impoundments where a
forested wetland previously existed. However, this NWP authorizes the
relocation of non-tidal waters, including non-tidal wetlands, on the
project site provided there are net gains in aquatic resource functions
and values. For example, this NWP may authorize the creation of an open
water impoundment in a non-tidal emergent wetland, provided the non-
tidal emergent wetland is replaced by creating that wetland type on the
project site. This NWP does not authorize the relocation of tidal
waters or the conversion of tidal waters, including tidal wetlands, to
other aquatic uses, such as the conversion of tidal wetlands into open
water impoundments.
Reversion. For enhancement, restoration, and creation projects
conducted under paragraphs (a)(2) and (a)(4), this NWP does not
authorize any future discharge of dredged or fill material associated
with the reversion of the area to its prior condition. In such cases a
separate permit would be required for any reversion. For restoration,
enhancement, and creation projects conducted under paragraphs (a)(1)
and (a)(3), this NWP also authorizes any future discharge of dredged or
fill material associated with the reversion of the area to its
documented prior condition and use (i.e., prior to the restoration,
enhancement, or creation activities) within five years after expiration
of a limited term wetland restoration or creation agreement or permit,
even if the discharge occurs after this NWP expires. This NWP also
authorizes the reversion of wetlands that were restored, enhanced, or
created on prior-converted cropland that has not been abandoned, in
accordance with a binding agreement between the landowner and NRCS or
FWS (even though the restoration, enhancement, or creation activity did
not require a Section 404 permit). The five-year reversion limit does
not apply to agreements without time limits reached under paragraph
(a)(1). The prior condition will be documented in the original
agreement or permit, and the determination of return to prior
conditions will be made by the Federal agency or appropriate State
agency executing the agreement or permit. Prior to any reversion
activity the permittee or the appropriate Federal or State agency must
notify the District Engineer and include the documentation of the prior
condition. Once an area has reverted back to its prior physical
condition, it will be subject to whatever the Corps regulatory
requirements will be at that future date. (Sections 10 and 404)
Note: Compensatory mitigation is not required for activities
authorized by this NWP, provided the authorized work results in a
net increase in aquatic resource functions and values in the project
area. This NWP can be used to authorize compensatory mitigation
projects, including mitigation banks, provided the permittee
notifies the District Engineer in accordance with General Condition
13, and the project includes compensatory mitigation for impacts to
waters of the United States caused by the authorized work. However,
this NWP does not authorize the reversion of an area used for a
compensatory mitigation project to its prior condition.
39. Residential, Commercial, and Institutional Developments.
Discharges into non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters, for the construction or
expansion of residential, commercial, and institutional building
foundations and building pads and attendant features that are necessary
for the use and maintenance of the structures. Attendant features may
include, but are not limited to, roads, parking lots, garages, yards,
utility lines, stormwater management facilities, and recreation
facilities such as playgrounds, playing fields, and golf courses
(provided the golf course is an integral part of the residential
development). The construction of new ski areas or oil and gas wells is
not authorized by this NWP. Residential developments include multiple
and single unit developments. Examples of commercial developments
include retail stores, industrial facilities, restaurants, business
parks, and shopping centers. Examples of institutional developments
include schools, fire stations, government office buildings, judicial
buildings, public works buildings, libraries, hospitals, and places of
worship. The activities listed above are authorized, provided that the
activities meet all of the following criteria:
a. The acreage limit for this NWP is determined by using the
following index (see Note 1, below):
Acreage limit = \1/4\ acre + 2% of the project area (in acres)
The maximum acreage limit for this NWP is 3 acres of non-tidal waters,
excluding non-tidal wetlands adjacent to tidal waters. This acreage
limit is achieved for a project area of 137.5 acres or more.
b. The permittee must notify the District Engineer in accordance
with General Condition 13, if any of the following criteria are met:
(1) The discharge causes the loss of greater than \1/4\ acre of
non-tidal waters of the United States, excluding non-tidal wetlands
adjacent to tidal waters; or
(2) The discharge causes the loss of any open waters, including
perennial or intermittent streams, below the ordinary high water mark
(see Note 2, below).
c. For discharges in special aquatic sites, including wetlands, the
notification must also include a delineation of affected special
aquatic sites, including wetlands;
d. The discharge is part of a single and complete project;
e. The permittee must avoid and minimize discharges into waters of
the United States at the project site to the maximum extent
practicable, and the notification, when required, must include a
written statement explaining how avoidance and minimization of losses
of waters of the United States were achieved on the project site.
Compensatory mitigation will normally be required to offset the losses
of waters of the United States. The notification, when required, must
also include a compensatory mitigation proposal for offsetting
unavoidable losses of waters of the United States. If an applicant
believes that the project impacts are minimal without mitigation, then
the applicant may submit justification explaining why compensatory
mitigation should not be required for the District Engineer's
consideration;
f. When this NWP is used in conjunction with any other NWP, any
[[Page 39362]]
combined total permanent loss of non-tidal waters of the United States,
excluding non-tidal wetlands adjacent to tidal waters, exceeding \1/4\
acre requires that the permittee notify the District Engineer in
accordance with General Condition 13;
g. Any work authorized by this NWP must not cause more than minimal
degradation of water quality or more than minimal changes to the flow
characteristics of any stream (see General Conditions 9 and 21);
h. For discharges causing the loss of \1/4\ acre or less of waters
of the United States, the permittee must submit a report, within 30
days of completion of the work, to the District Engineer that contains
the following information: (1) The name, address, and telephone number
of the permittee; (2) The location of the work; (3) A description of
the work; (4) The type and acreage (or linear feet) of the loss of
waters of the United States (e.g., \1/10\ acre of emergent wetlands and
50 linear feet of stream bed); and (5) The type and acreage (or linear
feet) of any compensatory mitigation used to offset the loss of waters
of the United States (e.g., \1/10\ acre of emergent wetlands created
on-site);
i. If there are any open waters or streams within the project area,
the permittee will establish and maintain, to the maximum extent
practicable, wetland or upland vegetated buffers adjacent to those open
waters or streams consistent with General Condition 19. Deed
restrictions, conservation easements, protective covenants, or other
means of land conservation and preservation are required to protect and
maintain the vegetated buffers established on the project site; and
j. Stream channelization or stream relocation downstream of the
point on the stream where the annual average flow is 1 cubic foot per
second is not authorized by this NWP.
Only residential, commercial, and institutional activities with
structures on the foundation(s) or building pad(s), as well as the
attendant features, are authorized by this NWP. For the purposes of
this NWP, the term ``project area'' is defined in the definition
section of the NWPs. The compensatory mitigation proposal required in
paragraph (e) of this NWP may be either conceptual or detailed. The
wetland or upland vegetated buffer required in paragraph (i) of this
NWP will normally be 50 to 125 feet wide, but the District Engineer
will determine the appropriate width of the vegetated buffer. The
required wetland or upland vegetated buffer is part of the overall
compensatory mitigation requirement for this NWP. If the project site
was previously used for agricultural purposes and the farm owner/
operator used NWP 40 to authorize activities in waters of the United
States to increase production or construct farm buildings, NWP 39
cannot be used by the developer to authorize additional activities in
waters of the United States on the project site in excess of the
indexed acreage limit for NWP 39 (i.e., the combined acreage loss
authorized under NWPs 39 and 40 cannot exceed the indexed acreage limit
based on project area in paragraph (a), above).
Subdivisions: For any real estate subdivision created or subdivided
after October 5, 1984, a notification pursuant to paragraph (b) of this
NWP is required for any discharge which would cause the aggregate total
loss of waters of the United States for the entire subdivision to
exceed \1/4\ acre. Any discharge in any real estate subdivision which
would cause the aggregate total loss of waters of the United States in
the subdivision to exceed the indexed acreage limit based on project
area as determined by paragraph (a) is not authorized by this NWP;
unless the District Engineer exempts a particular subdivision or parcel
by making a written determination that: (1) The individual and
cumulative adverse environmental effects would be minimal and the
property owner had, after October 5, 1984, but prior to July 21, 1999,
committed substantial resources in reliance on NWP 26 with regard to a
subdivision, in circumstances where it would be inequitable to
frustrate the property owner's investment-backed expectations, or (2)
that the individual and cumulative adverse environmental effects would
be minimal, high quality wetlands would not be adversely affected, and
there would be an overall benefit to the aquatic environment. Once the
exemption is established for a subdivision, subsequent lot development
by individual property owners may proceed using NWP 39. For the
purposes of NWP 39, the term ``real estate subdivision'' shall be
interpreted to include circumstances where a landowner or developer
divides a tract of land into smaller parcels for the purpose of
selling, conveying, transferring, leasing, or developing said parcels.
This would include the entire area of a residential, commercial, or
other real estate subdivision, including all parcels and parts thereof.
(Sections 10 and 404)
Note 1: For example, if the project area is 15 acres, the
acreage limit for a single and complete project under this NWP is
0.55 acres. For any project area of 137.5 acres or more, the acreage
limit under this NWP is 3 acres of non-tidal waters, excluding non-
tidal wetlands adjacent to tidal waters.
Note 2: Areas where there is no wetland vegetation are
determined by the presence or absence of an ordinary high water mark
or bed and bank. Areas that are waters of the United States based on
this criteria would require a PCN even though water is infrequently
present in the stream channel.
40. Agricultural Activities. Discharges of dredged or fill material
into non-tidal waters of the United States, excluding non-tidal
wetlands adjacent to tidal waters, for the purpose of improving
agricultural production and the construction of building pads for farm
buildings. Authorized activities include the installation, placement,
or construction of drainage tiles, ditches, or levees; mechanized
landclearing; land leveling; the relocation of existing serviceable
drainage ditches constructed in waters of the United States; and
similar activities, provided the permittee complies with the following
terms and conditions:
a. For discharges into non-tidal wetlands to improve agricultural
production, the following criteria must be met if the permittee is a
USDA program participant:
(1) The permittee must obtain an exemption or a minimal effects
with mitigation determination from NRCS in accordance with the
provisions of the Food Security Act (16 U.S.C. 3801 et seq.) and the
National Food Security Act Manual (NFSAM);
(2) The discharge into non-tidal wetlands does not result in the
loss of greater than 2 acres of non-tidal wetlands on a farm tract;
(3) The discharge into playas, prairie potholes, and vernal pools
does not exceed the acreage limit as determined by the following index
(see Note, below):
Acreage limit = \1/10\ acre + 1% of farm tract size (in acres)
The maximum acreage loss of playas, prairie potholes, and vernal pools
authorized by this NWP is 1 acre;
(4) The permittee must have an NRCS-certified wetland delineation;
(5) The permittee must implement an NRCS-approved compensatory
mitigation plan that fully offsets wetland losses; and
(6) The permittee must submit a report, within 30 days of
completion of the authorized work, to the District Engineer that
contains the following information: (a) The name, address, and
telephone number of the permittee; (b) The location of the work; (c) A
description of the work; (d) The type and acreage (or square feet) of
the loss of wetlands (e.g., \1/2\ acre of emergent wetlands); and (e)
The type, acreage (or
[[Page 39363]]
square feet), and location of compensatory mitigation (e.g., \3/4\ acre
of emergent wetlands on the farm tract); or
b. For discharges into non-tidal wetlands to improve agricultural
production, the following criteria must be met if the permittee is not
a USDA program participant:
(1) The discharge into non-tidal wetlands does not result in the
loss of greater than 2 acres of non-tidal wetlands on a farm tract;
(2) The discharge into playas, prairie potholes, and vernal pools
does not exceed the acreage limit as determined by the following index
(see Note, below):
Acreage limit = \1/10\ acre + 1% of farm tract size (in acres)
The maximum acreage loss of playas, prairie potholes, and vernal pools
authorized by this NWP is 1 acre;
(3) The permittee must notify the District Engineer in accordance
with General Condition 13, if the discharge results in the loss of
greater than \1/4\ acre of non-tidal wetlands, including playas,
prairie potholes, and vernal pools;
(4) The notification must include a delineation of affected
wetlands; and
(5) The notification must include a compensatory mitigation
proposal to offset losses of waters of the United States; or
c. For the construction of building pads for farm buildings, the
discharge does not cause the loss of greater than 1 acre of non-tidal
wetlands that were in agricultural production prior to December 23,
1985, (i.e., farmed wetlands) and the permittee must notify the
District Engineer in accordance with General Condition 13; or
d. Any activity in other waters of the United States is limited to
the relocation of existing serviceable drainage ditches constructed in
non-tidal streams. For the relocation of greater than 500 linear feet
of drainage ditches constructed in non-tidal streams, the permittee
must notify the District Engineer in accordance with General Condition
13.
The term ``farm tract'' refers to a parcel of land identified by
the Farm Service Agency. The Corps will identify other waters of the
United States on the farm tract. For the purposes of this NWP, the
terms ``playas,'' ``prairie potholes,'' and ``vernal pools'' are
defined in the ``Definitions'' section. NRCS will determine if a
proposed agricultural activity meets the terms and conditions of
paragraph (a) of this NWP, except as provided below. For those
activities that require notification, the District Engineer will
determine if a proposed agricultural activity is authorized by
paragraphs (b), (c), and/or (d) of this NWP. USDA program participants
requesting authorization for discharges of dredged or fill material
into waters of the United States authorized by paragraphs (c) or (d) of
this NWP, in addition to paragraph (a), must notify the District
Engineer in accordance with General Condition 13 and the District
Engineer will determine if the entire single and complete project is
authorized by this NWP. Discharges of dredged or fill material into
waters of the United States associated with the construction of the
compensatory mitigation are authorized by this NWP, but are not
calculated in the acreage loss of waters of the United States. This NWP
does not affect, or otherwise regulate, discharges associated with
agricultural activities when the discharge qualifies for an exemption
under Section 404(f) of the Clean Water Act, even though a minimal
effect/mitigation determination by NRCS pursuant to the Food and
Security Act may be required. Activities authorized by paragraphs (c)
and (d) are not included in the indexed acreage limit for the farm
tract. If the site was used for agricultural purposes and the farm
owner/operator used either paragraphs (a), (b), or (c) of this NWP to
authorize activities in waters of the United States to increase
agricultural production or construct farm buildings, and the current
landowner wants to use NWP 39 to authorize residential, commercial, or
industrial development activities in waters of the United States on the
site, the combined acreage loss authorized by NWPs 39 and 40 cannot
exceed the indexed acreage limit based on project area for a single and
complete project in paragraph (a) of NWP 39. (Section 404)
Note: For example, under paragraphs (a)(3) or (b)(2) above, for
a 20-acre farm tract, the maximum acreage loss authorized for
playas, prairie potholes, and vernal pools on the farm tract under
this NWP is 0.3 acre. For any farm tract 90 acres or more in size,
the acreage limit of this NWP is 1 acre of playas, prairie potholes,
and vernal pools.
41. Reshaping Existing Drainage Ditches. Discharges of dredged or
fill material into non-tidal waters of the United States, excluding
non-tidal wetlands adjacent to tidal waters, to modify the cross-
sectional configuration of existing serviceable drainage ditches
constructed in non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters. The reshaping of the ditch
cannot increase drainage capacity beyond the original design capacity
or expand the area drained by the ditch as originally designed (i.e.,
the capacity of the ditch must be the same as originally designed and
it cannot drain additional wetlands or other waters of the United
States). Compensatory mitigation is not required because the work is
designed to improve water quality (e.g., by regrading the drainage
ditch with gentler slopes, which can reduce erosion, increase growth of
vegetation, increase uptake of nutrients and other substances by
vegetation, etc.). The permittee must notify the District Engineer in
accordance with General Condition 13, if material excavated during
ditch reshaping is proposed to be sidecast into waters of the United
States or if greater than 500 linear feet of drainage ditch is to be
reshaped. This NWP does not apply to reshaping drainage ditches
constructed in uplands, since these areas are not waters of the United
States, and thus no permit from the Corps is required, or to the
maintenance of existing drainage ditches to their original dimensions
and configuration, which does not require a Section 404 permit (see 33
CFR 323.4(a)(3)). This NWP does not authorize the relocation of
drainage ditches constructed in waters of the United States; the
location of the centerline of the reshaped drainage ditch must be
approximately the same as the location of the centerline of the
original drainage ditch. This NWP does not authorize stream
channelization or stream relocation projects. (Section 404)
42. Recreational Facilities. Discharges of dredged or fill material
into non-tidal waters of the United States, excluding non-tidal
wetlands adjacent to tidal waters, for the construction of expansion of
recreational facilities, provided the activity meets all of the
following criteria:
a. The discharge does not cause the loss of greater than 1 acre of
non-tidal waters of the United States, excluding non-tidal wetlands
adjacent to tidal waters;
b. For discharges causing the loss of greater than \1/4\ acre of
non-tidal waters of the United States, or the loss of greater than 500
linear feet of perennial or intermittent stream bed, the permittee
notifies the District Engineer in accordance with General Condition 13;
c. For discharges in special aquatic sites, including wetlands, the
notification must include a delineation of affected special aquatic
sites, including wetlands; and
d. The discharge is part of a single and complete project.
For the purposes of this NWP, the term ``recreational facility'' is
defined as a recreational activity that has low-impact on the aquatic
environment, is integrated into the natural landscape, and consists
primarily of open space that does not substantially change
[[Page 39364]]
preconstruction grades or deviate from natural landscape contours. For
the purpose of this permit, the primary function of recreational
facilities does not include the use of motor vehicles, buildings, or
impervious surfaces. Examples of recreational facilities that may be
authorized by this NWP include: hiking trails, bike paths, horse paths,
nature centers, and campgrounds (excluding trailer parks). The
construction or expansion of golf courses and the expansion of ski
areas may be authorized by this NWP, provided the golf course or ski
area does not substantially deviate from natural landscape contours and
is designed to minimize adverse effects to waters of the United States
and riparian areas through the use of such practices as integrated pest
management, adequate stormwater management facilities, vegetated
buffers, reduced fertilizer use, etc. The facility must have an
adequate water quality management plan in accordance with General
Condition 9, such as a stormwater management facility to ensure that
the recreational facility results in no substantial adverse effects to
water quality. This NWP also authorizes the construction or expansion
of small support facilities, such as maintenance and storage buildings
and stables that are directly related to the recreational activity.
This NWP does not authorize other buildings, such as hotels,
restaurants, etc. The construction or expansion of playing fields
(e.g., baseball, soccer, or football fields), basketball and tennis
courts, racetracks, stadiums, arenas, and the construction of new ski
areas are not authorized by this NWP. (Section 404)
43. Stormwater Management Facilities. Discharges of dredged or fill
material into non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters, for the construction and
maintenance of stormwater management facilities, including activities
for the excavation of stormwater ponds/facilities, detention basins,
and retention basins; installation and maintenance of water control
structures, outfall structures and emergency spillways; and the
maintenance dredging of existing stormwater management ponds/facilities
and detention and retention basins provided that the activity meets all
of the following criteria:
a. The discharge or excavation for the construction of new
stormwater management facilities does not cause the loss of greater
than 2 acres of non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters;
b. The discharge of dredged or fill material for the construction
of new stormwater management facilities in perennial streams is not
authorized;
c. For discharges or excavation for the construction of new
stormwater management facilities or for the maintenance of existing
stormwater management facilities causing the loss of greater than \1/4\
acre of non-tidal waters, excluding non-tidal wetlands adjacent to
tidal waters, or causing the loss of greater than 500 linear feet of
intermittent stream bed, the permittee notifies the District Engineer
in accordance with General Condition 13. In addition, the notification
must include:
(1) A maintenance plan. The maintenance plan should be in
accordance with State and local requirements, if any such requirements
exist;
(2) For discharges in special aquatic sites, including wetlands and
submerged aquatic vegetation, the notification must include a
delineation of affected areas; and
(3) A compensatory mitigation proposal that offsets the loss of
waters of the United States. Maintenance in constructed areas will not
require mitigation provided such maintenance is accomplished in
designated maintenance areas and not within compensatory mitigation
areas (i.e., district engineers may designate non-maintenance areas,
normally at the downstream end of the stormwater management facility,
in existing stormwater management facilities). (No mitigation will be
required for activities which are exempt from Section 404 permit
requirements);
d. The permittee must avoid and minimize discharges into waters of
the United States at the project site to the maximum extent
practicable, and the notification must include a written statement to
the District Engineer detailing compliance with this condition (i.e.,
why the discharge must occur in waters of the United States and why
additional minimization cannot be achieved);
e. The stormwater management facility must comply with General
Condition 21 and be designed using best management practices (BMPs) and
watershed protection techniques. Examples may include forbays (deeper
areas at the upstream end of the stormwater management facility that
would be maintained through excavation), vegetated buffers, and siting
considerations to minimize adverse effects to aquatic resources.
Another example of a BMP would be bioengineering methods incorporated
into the facility design to benefit water quality and minimize adverse
effects to aquatic resources from storm flows, especially downstream of
the facility, that provide, to the maximum extent practicable, for long
term aquatic resource protection and enhancement;
f. Maintenance excavation will be in accordance with an approved
maintenance plan and will not exceed the original contours of the
facility as approved and constructed; and
g. The discharge is part of a single and complete project. (Section
404)
44. Mining Activities. Discharges of dredged or fill material into:
(i) Isolated waters, streams where the annual average flow is 1 cubic
foot per second (cfs) or less, and non-tidal wetlands adjacent to
headwater streams, for aggregate mining (i.e., sand, gravel, and
crushed and broken stone) and associated support activities; (ii) lower
perennial streams, excluding wetlands adjacent to lower perennial
streams, for aggregate mining activities (support activities in lower
perennial streams or adjacent wetlands are not authorized by this NWP);
and (iii) isolated waters and non-tidal wetlands adjacent to headwater
streams, for hard rock/mineral mining activities (i.e., extraction of
metalliferous ores from subsurface locations) and associated support
activities, provided the discharge meets the following criteria:
a. The mined area within waters of the United States, plus the
acreage loss of waters of the United States resulting from support
activities, cannot exceed 2 acres;
b. The acreage loss of waters of the United States resulting from
support activities cannot exceed one acre;
c. The permittee must avoid and minimize discharges into waters of
the United States at the project site to the maximum extent
practicable, and the notification must include a written statement to
the District Engineer detailing compliance with this condition (i.e.,
why the discharge must occur in waters of the United States and why
additional minimization cannot be achieved);
d. In addition to General Conditions 17 and 20, activities
authorized by this permit must not substantially alter the sediment
characteristics of areas of concentrated shellfish beds or fish
spawning areas. Normally, the mandated water quality management plan
should address these impacts;
e. The permittee must implement necessary measures to prevent
increases in stream gradient and water velocities, to prevent adverse
effects (e.g., head cutting, bank erosion) on upstream and downstream
channel conditions;
[[Page 39365]]
f. Activities authorized by this permit must not result in adverse
effects on the course, capacity, or condition of navigable waters of
the United States;
g. The permittee must utilize measures to minimize downstream
turbidity;
h. Wetland impacts must be compensated through mitigation approved
by the Corps;
i. Beneficiation and mineral processing may not occur within 200
feet of the ordinary high water mark of any open waterbody. Although
the Corps does not regulate discharges from these activities, a Clean
Water Act Section 402 permit may be required;
j. All activities authorized by this NWP must carefully adhere to
General Conditions 9 and 21. Further, if determined necessary by the
District Engineer, the Corps may require modifications to the required
water quality management plan;
k. No aggregate mining can occur within stream beds where the
average annual flow is greater than 1 cubic foot per second or in
waters of the United States within 100 feet of the ordinary high water
mark of headwater stream segments where the average annual flow of the
stream is greater than 1 cubic foot per second (aggregate mining can
occur in areas immediately adjacent to the ordinary high water mark of
a stream where the average annual flow is 1 cubic foot per second or
less), except for aggregate mining in lower perennial streams;
l. Single and complete project: The discharges must be for a single
and complete project, including support activities. Multiple mining
activity discharges into several designated parcels of a mining project
may be included together as long as the 2 acre limit is not exceeded;
and
m. Notification: The permittee must notify the District Engineer in
accordance with General Condition 13. The notification must include:
(1) A description of measures proposed to minimize or prevent adverse
effects (e.g., head cutting, bank erosion, turbidity, water quality) to
waters of the United States; (2) A written statement to the District
Engineer detailing compliance with paragraph (c), above (i.e., why the
discharge must occur in waters of the United States and why additional
minimization cannot be achieved); (3) A description of measures taken
to meet the criteria associated with the discharge being permitted
(i.e., how the proposed work complies with paragraphs (d) through (g),
above); and (4) A reclamation plan (for aggregate mining in isolated
waters and non-tidal wetlands adjacent to headwaters and hard rock/
mineral mining only).
This NWP does not authorize hard rock/mineral mining, including
placer mining, in streams. No hard rock/mineral mining can occur in
waters of the United States within 100 feet of the ordinary high water
mark of headwater streams. The terms ``headwaters'' and ``isolated
waters'' are defined in 33 CFR Parts 330.2(d) and (e), respectively.
For the purposes of this NWP, the term ``lower perennial streams'' is
the same as the lower perennial riverine subsystem described in the
Cowardin classification system of wetlands and deepwater habitats of
the United States. (Sections 10 and 404)
C. Nationwide Permit General Conditions
The following general conditions must be followed in order for any
authorization by an NWP to be valid:
1. Navigation. No activity may cause more than a minimal adverse
effect on navigation.
2. Proper Maintenance. Any structure or fill authorized shall be
properly maintained, including maintenance to ensure public safety.
3. Soil Erosion and Sediment Controls. Appropriate soil erosion and
sediment controls must be used and maintained in effective operating
condition during construction, and all exposed soil and other fills, as
well as any work below the ordinary high water mark or high tide line,
must be permanently stabilized at the earliest practicable date.
4. Aquatic Life Movements. No activity may substantially disrupt
the movement of those species of aquatic life indigenous to the
waterbody, including those species which normally migrate through the
area, unless the activity's primary purpose is to impound water.
Culverts placed in streams must be installed to maintain low flow
conditions.
5. Equipment. Heavy equipment working in wetlands must be placed on
mats, or other measures must be taken to minimize soil disturbance.
6. Regional and Case-By-Case Conditions. The activity must comply
with any regional conditions which may have been added by the division
engineer (see 33 CFR 330.4(e)) and with any case specific conditions
added by the Corps or by the State or tribe in its Section 401 water
quality certification and Coastal Zone Management Act consistency
determination.
7. Wild and Scenic Rivers. No activity may occur in a component of
the National Wild and Scenic River System; or in a river officially
designated by Congress as a ``study river'' for possible inclusion in
the system, while the river is in an official study status; unless the
appropriate Federal agency, with direct management responsibility for
such river, has determined in writing that the proposed activity will
not adversely affect the Wild and Scenic River designation, or study
status. Information on Wild and Scenic Rivers may be obtained from the
appropriate Federal land management agency in the area (e.g., National
Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish
and Wildlife Service).
8. Tribal Rights. No activity or its operation may impair reserved
tribal rights, including, but not limited to, reserved water rights and
treaty fishing and hunting rights.
9. Water Quality. In certain States and tribal lands an individual
401 water quality certification must be obtained or waived (See 33 CFR
330.4(c)). For NWPs 12, 14, 17, 18, 32, 39, 40, 42, 43, and 44 where
the State or tribal 401 certification (either generically or
individually) does not require/approve a water quality management plan,
the permittee must include design criteria and techniques that provide
for protection of aquatic resources. The project must include a method
for stormwater management (whether required by the State or not) that
minimizes degradation of the downstream aquatic system, including water
quality. To the maximum extent practicable, a vegetated buffer zone
(including wetlands, uplands, or both) adjacent to open waters of the
river, stream, or other open waterbody will be established and
maintained, if the project occurs in the vicinity of such an open
waterbody. The District Engineer will determine the proper width of the
buffer and in which cases it will be required. Normally, the vegetated
buffer will be 50 to 125 feet wide.
10. Coastal Zone Management. In certain states, an individual state
coastal zone management consistency concurrence must be obtained or
waived (see Section 330.4(d)).
11. Endangered Species. (a) No activity is authorized under any NWP
which is likely to jeopardize the continued existence of a threatened
or endangered species or a species proposed for such designation, as
identified under the Federal Endangered Species Act, or which will
destroy or adversely modify the critical habitat of such species. Non-
federal permittees shall notify the District Engineer if any listed
species or designated critical habitat might be affected or is in the
vicinity of the project, or is located in the designated critical
habitat and shall
[[Page 39366]]
not begin work on the activity until notified by the District Engineer
that the requirements of the Endangered Species Act have been satisfied
and that the activity is authorized. For activities that may affect
Federally-listed endangered or threatened species or designated
critical habitat, the notification must include the name(s) of the
endangered or threatened species that may be affected by the proposed
work or that utilize the designated critical habitat that may be
affected by the proposed work.
(b) Authorization of an activity by a nationwide permit does not
authorize the ``take'' of a threatened or endangered species as defined
under the Federal Endangered Species Act. In the absence of separate
authorization (e.g., an ESA Section 10 Permit, a Biological Opinion
with ``incidental take'' provisions, etc.) from the U.S. Fish and
Wildlife Service or the National Marine Fisheries Service, both lethal
and non-lethal ``takes'' of protected species are in violation of the
Endangered Species Act. Information on the location of threatened and
endangered species and their critical habitat can be obtained directly
from the offices of the U.S. Fish and Wildlife Service and National
Marine Fisheries Service or their world wide web pages at http://
www.fws.gov/r9endspp/endspp.html and http://www.nfms.gov/prot__res/
esahome.html, respectively.
12. Historic Properties. No activity which may affect historic
properties listed, or eligible for listing, in the National Register of
Historic Places is authorized, until the DE has complied with the
provisions of 33 CFR Part 325, Appendix C. The prospective permittee
must notify the District Engineer if the authorized activity may affect
any historic properties listed, determined to be eligible, or which the
prospective permittee has reason to believe may be eligible for listing
on the National Register of Historic Places, and shall not begin the
activity until notified by the District Engineer that the requirements
of the National Historic Preservation Act have been satisfied and that
the activity is authorized. Information on the location and existence
of historic resources can be obtained from the State Historic
Preservation Office and the National Register of Historic Places (see
33 CFR 330.4(g)). For activities that may affect historic properties
listed in, or eligible for listing in, the National Register of
Historic Places, the notification must state which historic property
may be affected by the proposed work or include a vicinity map
indicating the location of the historic property.
13. Notification. (a) Timing: Where required by the terms of the
NWP, the prospective permittee must notify the District Engineer with a
preconstruction notification (PCN) as early as possible. The District
Engineer must determine if the notification is complete within 30 days
of the date of receipt and can request additional information necessary
for the evaluation of the PCN only once. However, if the prospective
permittee does not provide all of the requested information, then the
District Engineer will notify the prospective permittee that the
notification is still incomplete and the PCN review process will not
commence until all of the requested information has been received by
the District Engineer. The prospective permittee shall not begin the
activity:
(1) Until notified in writing by the District Engineer that the
activity may proceed under the NWP with any special conditions imposed
by the District or Division Engineer; or
(2) If notified in writing by the District or Division Engineer
that an individual permit is required; or
(3) Unless 45 days have passed from the District Engineer's receipt
of the complete notification and the prospective permittee has not
received written notice from the District or Division Engineer.
Subsequently, the permittee's right to proceed under the NWP may be
modified, suspended, or revoked only in accordance with the procedure
set forth in 33 CFR 330.5(d)(2).
(b) Contents of Notification: The notification must be in writing
and include the following information:
(1) Name, address and telephone numbers of the prospective
permittee;
(2) Location of the proposed project;
(3) Brief description of the proposed project; the project's
purpose; direct and indirect adverse environmental effects the project
would cause; any other NWP(s), regional general permit(s), or
individual permit(s) used or intended to be used to authorize any part
of the proposed project or any related activity; and
(4) For NWPs 7, 12, 14, 18, 21, 34, 38, 39, 41, 42, and 43, the PCN
must also include a delineation of affected special aquatic sites,
including wetlands, vegetated shallows (e.g., submerged aquatic
vegetation, seagrass beds), and riffle and pool complexes (see
paragraph 13(f));
(5) For NWP 7, Outfall Structures and Maintenance, the PCN must
include information regarding the original design capacities and
configurations of those areas of the facility where maintenance
dredging or excavation is proposed.
(6) For NWP 21, Surface Coal Mining Activities, the PCN must
include an Office of Surface Mining (OSM) or State-approved mitigation
plan.
(7) For NWP 29, Single-Family Housing, the PCN must also include:
(i) Any past use of this NWP by the individual permittee and/or the
permittee's spouse;
(ii) A statement that the single-family housing activity is for a
personal residence of the permittee;
(iii) A description of the entire parcel, including its size, and a
delineation of wetlands. For the purpose of this NWP, parcels of land
measuring \1/2\ acre or less will not require a formal on-site
delineation. However, the applicant shall provide an indication of
where the wetlands are and the amount of wetlands that exists on the
property. For parcels greater than \1/2\ acre in size, a formal wetland
delineation must be prepared in accordance with the current method
required by the Corps. (See paragraph 13(f));
(iv) A written description of all land (including, if available,
legal descriptions) owned by the prospective permittee and/or the
prospective permittee's spouse, within a one mile radius of the parcel,
in any form of ownership (including any land owned as a partner,
corporation, joint tenant, co-tenant, or as a tenant-by-the-entirety)
and any land on which a purchase and sale agreement or other contract
for sale or purchase has been executed;
(8) For NWP 31, Maintenance of Existing Flood Control Projects, the
prospective permittee must either notify the District Engineer with a
PCN prior to each maintenance activity or submit a five year (or less)
maintenance plan. In addition, the PCN must include all of the
following:
(i) Sufficient baseline information so as to identify the approved
channel depths and configurations and existing facilities. Minor
deviations are authorized, provided the approved flood control
protection or drainage is not increased;
(ii) A delineation of any affected special aquatic sites, including
wetlands; and,
(iii) Location of the dredged material disposal site.
(9) For NWP 33, Temporary Construction, Access, and Dewatering, the
PCN must also include a restoration plan of reasonable measures to
avoid and minimize adverse effects to aquatic resources.
(10) For NWPs 39, 43, and 44, the PCN must also include a written
statement to the District Engineer
[[Page 39367]]
explaining how avoidance and minimization of losses of waters of the
United States were achieved on the project site and either a
compensatory mitigation proposal that offsets unavoidable losses of
waters of the United States or justification explaining why
compensatory mitigation should not be required.
(11) For NWP 40, Agricultural Activities, the PCN must include
information regarding the past use of this NWP on the farm.
(12) For NWP 43, Stormwater Management Facilities, the PCN must
include, for the construction of new stormwater management facilities,
a maintenance plan (in accordance with State and local requirements, if
applicable) and a compensatory mitigation proposal to offset losses of
waters of the United States.
(13) For NWP 44, Mining Activities, the PCN must include a
description of all waters of the United States adversely affected by
the project, a description of measures taken to minimize adverse
effects to waters of the United States, a description of measures taken
to comply with the criteria of the NWP, and a reclamation plan (for all
aggregate mining activities except for aggregate mining activities in
lower perennial streams and any hard rock/mineral mining activities).
(c) Form of Notification: The standard individual permit
application form (Form ENG 4345) may be used as the notification but
must clearly indicate that it is a PCN and must include all of the
information required in (b)(1)-(7) of General Condition 13. A letter
containing the requisite information may also be used.
(d) District Engineer's Decision: In reviewing the PCN for the
proposed activity, the District Engineer will determine whether the
activity authorized by the NWP will result in more than minimal
individual or cumulative adverse environmental effects or may be
contrary to the public interest. The prospective permittee may,
optionally, submit a proposed mitigation plan with the PCN to expedite
the process and the District Engineer will consider any proposed
compensatory mitigation the applicant has included in the proposal in
determining whether the net adverse environmental effects to the
aquatic environment of the proposed work are minimal. If the District
Engineer determines that the activity complies with the terms and
conditions of the NWP and that the adverse effects on the aquatic
environment are minimal, the District Engineer will notify the
permittee and include any conditions the District Engineer deems
necessary.
Any compensatory mitigation proposal must be approved by the
District Engineer prior to commencing work. If the prospective
permittee is required to submit a compensatory mitigation proposal with
the PCN, the proposal may be either conceptual or detailed. If the
prospective permittee elects to submit a compensatory mitigation plan
with the PCN, the District Engineer will expeditiously review the
proposed compensatory mitigation plan. The District Engineer must
review the plan within 45 days of receiving a complete PCN and
determine whether the conceptual or specific proposed mitigation would
ensure no more than minimal adverse effects on the aquatic environment.
If the net adverse effects of the project on the aquatic environment
(after consideration of the compensatory mitigation proposal) are
determined by the District Engineer to be minimal, the District
Engineer will provide a timely written response to the applicant
stating that the project can proceed under the terms and conditions of
the nationwide permit.
If the District Engineer determines that the adverse effects of the
proposed work are more than minimal, then he will notify the applicant
either: (1) That the project does not qualify for authorization under
the NWP and instruct the applicant on the procedures to seek
authorization under an individual permit; (2) that the project is
authorized under the NWP subject to the applicant's submission of a
mitigation proposal that would reduce the adverse effects on the
aquatic environment to the minimal level; or (3) that the project is
authorized under the NWP with specific modifications or conditions.
Where the District Engineer determines that mitigation is required in
order to ensure no more than minimal adverse effects on the aquatic
environment, the activity will be authorized within the 45-day PCN
period, including the necessary conceptual or specific mitigation or a
requirement that the applicant submit a mitigation proposal that would
reduce the adverse effects on the aquatic environment to the minimal
level. When conceptual mitigation is included, or a mitigation plan is
required under item (2) above, no work in waters of the United States
will occur until the District Engineer has approved a specific
mitigation plan.
(e) Agency Coordination: The District Engineer will consider any
comments from Federal and State agencies concerning the proposed
activity's compliance with the terms and conditions of the NWPs and the
need for mitigation to reduce the project's adverse environmental
effects to a minimal level.
For activities requiring notification to the District Engineer that
result in the loss of greater than 1 acre of waters of the United
States, the District Engineer will, upon receipt of a notification,
provide immediately (e.g., via facsimile transmission, overnight mail,
or other expeditious manner), a copy to the appropriate offices of the
Fish and Wildlife Service, State natural resource or water quality
agency, EPA, State Historic Preservation Officer (SHPO), and, if
appropriate, the National Marine Fisheries Service. With the exception
of NWP 37, these agencies will then have 10 calendar days from the date
the material is transmitted to telephone or fax the District Engineer
notice that they intend to provide substantive, site-specific comments.
If so contacted by an agency, the District Engineer will wait an
additional 15 calendar days before making a decision on the
notification. The District Engineer will fully consider agency comments
received within the specified time frame, but will provide no response
to the resource agency. The District Engineer will indicate in the
administrative record associated with each notification that the
resource agencies' concerns were considered. Applicants are encouraged
to provide the Corps multiple copies of notifications to expedite
agency notification.
(f) Wetlands Delineations: Wetland delineations must be prepared in
accordance with the current method required by the Corps. For NWP 29
see paragraph (b)(6)(iii) for parcels less than \1/2\ acre in size. The
permittee may ask the Corps to delineate the special aquatic site.
There may be some delay if the Corps does the delineation. Furthermore,
the 45-day period will not start until the wetland delineation has been
completed and submitted to the Corps, where appropriate.
(g) Mitigation: Factors that the District Engineer will consider
when determining the acceptability of appropriate and practicable
mitigation necessary to offset impacts on the aquatic environment that
are more than minimal include, but are not limited to:
(i) To be practicable, the mitigation must be available and capable
of being done considering costs, existing technology, and logistics in
light of the overall project purposes. Examples of mitigation that may
be appropriate and practicable include, but are not limited to:
reducing the size of the project; establishing and maintaining wetland
or
[[Page 39368]]
upland vegetated buffer zones to protect aquatic resource values; and
replacing the loss of aquatic resource values by creating, restoring,
enhancing, or preserving similar functions and values, preferably in
the same watershed;
(ii) To the extent appropriate, permittees should consider
mitigation banking and other appropriate forms of compensatory
mitigation. If the District Engineer determines that compensatory
mitigation is necessary to offset the losses of waters of the United
States and ensure that the net adverse effects of the authorized work
on the aquatic environment are minimal, mitigation banks, in lieu fee
programs, and other consolidated mitigation approaches will be the
preferred method of providing compensatory mitigation, unless the
District Engineer determines that activity-specific compensatory
mitigation is more appropriate, based on what is best for the aquatic
environment. These types of mitigation are preferred because they
involve larger blocks of protected aquatic environment, are more likely
to meet the mitigation goals, and are more easily checked for
compliance. If a mitigation bank, in lieu fee program, or other
consolidated mitigation approach is not available in the watershed, the
District Engineer will consider other appropriate forms of compensatory
mitigation to offset the losses of waters of the United States to
ensure that the net adverse effects of the authorized work on the
aquatic environment are minimal. In addition, compensatory mitigation
must address wetland impacts, such as functions and values, and cannot
be used to offset the acreage of wetland losses that would occur in
order to meet the acreage limits of some of the NWPs (e.g., for NWP 14,
\1/2\ acre of wetlands cannot be created to change a \3/4\acre loss of
wetlands to a \1/4\ acre loss; however, \1/2\-acre of created wetlands
can be used to reduce the impacts of a \1/3\-acre loss of wetlands). If
the prospective permittee is required to submit a compensatory
mitigation proposal with the PCN, the proposal may be either conceptual
or detailed. (Refer to General Condition 19 for additional information
concerning mitigation requirements for the NWPs.)
14. Compliance Certification. Every permittee who has received a
Nationwide permit verification from the Corps will submit a signed
certification regarding the completed work and any required mitigation.
The certification will be forwarded by the Corps with the authorization
letter and will include: (a) A statement that the authorized work was
done in accordance with the Corps authorization, including any general
or specific conditions; (b) A statement that any required mitigation
was completed in accordance with the permit conditions; and (c) The
signature of the permittee certifying the completion of the work and
mitigation.
15. Use of Multiple Nationwide Permits. The use of more than one
NWP for a single and complete project is prohibited, except when the
acreage loss of waters of the United States authorized by the NWPs does
not exceed the acreage limit of the NWP with the highest specified
acreage limit. For example, if a road crossing over tidal waters is
constructed under NWP 14, with associated bank stabilization authorized
by NWP 13, the maximum acreage loss of waters of the United States for
the total project cannot exceed \1/3\ acre.
16. Water Supply Intakes. No activity, including structures and
work in navigable waters of the United States or discharges of dredged
or fill material, may occur in the proximity of a public water supply
intake except where the activity is for repair of the public water
supply intake structures or adjacent bank stabilization.
17. Shellfish Beds. No activity, including structures and work in
navigable waters of the United States or discharges of dredged or fill
material, may occur in areas of concentrated shellfish populations,
unless the activity is directly related to a shellfish harvesting
activity authorized by NWP 4.
18. Suitable Material. No activity, including structures and work
in navigable waters of the United States or discharges of dredged or
fill material, may consist of unsuitable material (e.g., trash, debris,
car bodies, asphalt, etc.) and material used for construction or
discharged must be free from toxic pollutants in toxic amounts (see
Section 307 of the Clean Water Act).
19. Mitigation. Activities, including structures and work in
navigable waters of the United States or discharges of dredged or fill
material into waters of the United States, must be minimized or avoided
to the maximum extent practicable at the project site (i.e., on-site).
Furthermore, the District Engineer will require restoration, creation,
enhancement, or preservation of other aquatic resources in order to
offset the authorized impacts, at least to the extent that adverse
environmental effects to the aquatic environment are minimal. An
important element of any mitigation plan for projects in or near
streams or other open waters is the requirement of vegetated buffers
(wetland, upland, or both) adjacent to the open water areas. The
vegetated buffer should consist of native species and will constitute a
portion, as determined by the District Engineer, of the required
compensatory mitigation. The District Engineer will determine the
proper width of the vegetated buffer and in which cases it will be
required. Normally, the vegetated buffer will be 50 to 125 feet wide.
(Refer to paragraph (g) of General Condition 13 for additional
information concerning mitigation requirements for the NWPs.)
20. Spawning Areas. Activities, including structures and work in
navigable waters of the United States or discharges of dredged or fill
material, in spawning areas during spawning seasons must be avoided to
the maximum extent practicable. Activities that result in the physical
destruction (e.g., excavate, fill, or smother downstream by substantial
turbidity) of an important spawning area are not authorized.
21. Management of Water Flows: To the maximum extent practicable,
the project must be designed to maintain preconstruction downstream
flow conditions (e.g., location, capacity, and flow rates).
Furthermore, the project must not permanently restrict or impede the
passage of normal or expected high flows (unless the primary purpose of
the fill is to impound waters) and the structure or discharge of
dredged or fill material must withstand expected high flows. The
project must provide, to the maximum extent practicable, for retaining
excess flows from the site and for maintaining surface flow rates from
the site similar to preconstruction conditions. To the maximum extent
practicable, the authorized work must not increase water flows from the
project site, relocate water, or redirect water flow beyond
preconstruction conditions, to reduce adverse effects such as flooding
or erosion downstream and upstream of the project site.
22. Adverse Effects From Impoundments. If the activity, including
structures and work in navigable waters of the United States or
discharge of dredged or fill material, creates an impoundment of water,
adverse effects on the aquatic system caused by the accelerated passage
of water and/or the restriction of its flow shall be minimized to the
maximum extent practicable.
23. Waterfowl Breeding Areas. Activities, including structures and
work in navigable waters of the United States or discharges of dredged
or fill material, into breeding areas for migratory waterfowl must be
avoided to the maximum extent practicable.
24. Removal of Temporary Fills. Any temporary fills must be removed
in their
[[Page 39369]]
entirety and the affected areas returned to their preexisting
elevation.
25. Designated Critical Resource Waters. Critical resource waters
include, NOAA-designated marine sanctuaries, National Estuarine
Research Reserves, National Wild and Scenic Rivers, critical habitat
for Federally listed threatened and endangered species, coral reefs,
State natural heritage sites, and outstanding national resource waters
or other waters officially designated by a State as having particular
environmental or ecological significance and identified by the District
Engineer after notice and opportunity for public comment.
(a) Except as noted below, discharges of dredged or fill material
into waters of the United States are not authorized by NWPs 7, 12, 14,
16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and 44 for any activity within,
or directly affecting, critical resource waters, including wetlands
adjacent to such waters. Discharges of dredged or fill materials into
waters of the United States may be authorized by the above NWPs in
National Wild and Scenic Rivers if the activity complies with General
Condition 7. Further, such discharges may be authorized in designated
critical habitat for Federally listed threatened or endangered species
if the activity complies with General Condition 11 and the U.S. Fish
and Wildlife Service or the National Marine Fisheries Service has
concurred in a determination of compliance with this condition.
(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33,
34, 36, 37, and 38, notification is required in accordance with General
Condition 13, for any activity proposed in the designated critical
resource waters including wetlands adjacent to those waters. The
District Engineer may authorize activities under these NWPs only after
he determines that the impacts to the critical resource waters will be
no more than minimal.
26. Impaired Waters. Impaired waters are those waters of the United
States that have been identified by States or Tribes through the Clean
Water Act Section 303(d) process as impaired due to nutrients, organic
enrichment resulting in low dissolved oxygen concentration in the water
column, sedimentation and siltation, habitat alteration, suspended
solids, flow alteration, turbidity, or the loss of wetlands. For the
purposes of this general condition, the impaired waterbody includes any
adjacent wetlands.
(a) Discharges of dredged or fill material causing the loss of more
than one acre of impaired waters of the United States, including
adjacent wetlands to such impaired waters, except for activities
authorized by NWP 3 in such waters, are not authorized by nationwide
permit.
(b) For discharges of dredged or fill material causing the loss of
less than one acre of impaired waters of the United States, including
adjacent wetlands to such impaired waters, or any activity authorized
by NWP 3 in such waters, it is presumed that the project will, unless
clearly demonstrated otherwise, directly or indirectly result in the
further impairment of the listed water. Such activities in an impaired
water or adjacent wetlands will be not be authorized by nationwide
permit, unless the District Engineer determines that the prospective
permittee has clearly demonstrated that the authorized project will not
result in the further impairment of the listed water. For such
discharges, the prospective permittee must notify the District Engineer
in accordance with General Condition 13. In the notification to the
District Engineer, the prospective permittee must submit a statement
explaining how the proposed project, excluding mitigation, will not
result in further impairment. Also, in accordance with the procedures
in paragraph (e) of General Condition 13, the District Engineer will
coordinate with the State 401 agency for NWP activities resulting in
the loss of greater than \1/4\ acre of impaired waters of the United
States. In addition, mitigation for any permitted discharges in
impaired waters or their adjacent wetlands should be designed to offset
impacts to aquatic functions and values being impacted by the project,
as well as contribute to the reduction of sources of pollution
contributing to the impairment (e.g., by restoring wetlands that
intercept non-point sources of sediment or nutrient laden runoff).
27. Fills Within the 100-year Floodplain. The 100-year floodplain
will be defined by an up to date Federal Emergency Management Agency
(FEMA) Flood Insurance Rate Map, or in the absence of such map, the
appropriate local floodplain authority through a licensed professional
engineer.
(a) Except as provided below, discharges of dredged or fill
material into waters of the United States resulting in permanent above-
grade fills in the 100-year floodplain are not authorized by NWPs 21,
29, 39, 40, 42, 43, and 44. Prospective permittees must notify the
District Engineer in accordance with General Condition 13, of any
discharge of dredged or fill material in 100-year floodplains as
defined above. The notification must include documentation that the
proposed project will not involve discharges of dredged or fill
material into waters of the United States resulting in permanent,
above-grade fills in waters of the United States within the FEMA mapped
100-year floodplain. For those areas where no FEMA map exists or the
map is out of date (e.g., the map no longer reflects current flooding
conditions), the documentation should be from the local floodplain
authority (or local official with authority to issue development
permits within the floodplain). Based on such documentation, the
District Engineer will make the final determination as to whether the
proposed project is actually located within the 100-year floodplain.
(b) For NWPs 12 and 14, where there are discharges of dredged or
fill material resulting in permanent, above-grade wetland fills in
waters of the United States within the 100-year floodplain, it is
presumed that such discharges will result in more than minimal adverse
effects. Such discharges are not authorized by NWPs 12, and 14, unless
the District Engineer determines that the prospective permittee has
clearly demonstrated that the project, and associated mitigation, will
not decrease the flood-holding capacity and no more than minimally
alter the hydrology, flow regime, or volume of waters associated with
the floodplain. Prospective permittees attempting to rebut this
presumption must notify the District Engineer in accordance with
General Condition 13. The notification must include documentation,
which demonstrates that the project will not result in increased
flooding or more than minimally alter floodplain hydrology or flow
regimes. This documentation must include proof that FEMA, or a state or
local floodplain authority through a licensed professional engineer,
has approved the proposed project and provided a statement that the
project does not increase flooding or more than minimally alter
floodplain hydrology or flow regimes.
(c) Notwithstanding (a) and (b) above, projects located in the 100-
year floodplain at a point in a watershed which drains less than one
square mile are not subject to this condition.
D. Further Information
1. District engineers have authority to determine if an activity
complies with the terms and conditions of an NWP.
2. NWPs do not obviate the need to obtain other Federal, State, or
local permits, approvals, or authorizations required by law.
[[Page 39370]]
3. NWPs do not grant any property rights or exclusive privileges.
4. NWPs do not authorize any injury to the property or rights of
others.
5. NWPs do not authorize interference with any existing or proposed
Federal project.
E. Definitions
Aquatic bench: Aquatic benches are those shallow areas around the
edge of a permanent pool stormwater management facility that support
aquatic vegetation, both submerged and emergent.
Best management practices: Best Management Practices (BMPs) are
policies, practices, procedures, or structures implemented to mitigate
the adverse environmental effects on surface water quality resulting
from development. BMPs are categorized as structural or non-structural.
A BMP policy may affect the limits on a development.
Compensatory mitigation: For purposes of Section 10/404,
compensatory mitigation is the restoration, creation, enhancement, or
in exceptional circumstances, preservation of wetlands and/or other
aquatic resources for the purpose of compensating for unavoidable
adverse impacts which remain after all appropriate and practicable
avoidance and minimization has been achieved.
Creation: The establishment of a wetland or other aquatic resource
where one did not formerly exist.
Drainage ditch: A linear excavation or depression constructed for
the purpose of conveying surface runoff or groundwater from one area to
another. An ``upland drainage ditch'' is a drainage ditch constructed
entirely in uplands (i.e., not waters of the United States) and is not
a water of the United States, unless it becomes tidal or otherwise
extends the ordinary high water line of existing waters of the United
States. Drainage ditches constructed in waters of the United States
(e.g., by excavating wetlands or stream channelization) remain waters
of the United States even though they are heavily manipulated to
increase drainage. A drainage ditch may be constructed in uplands or
wetlands or other waters of the United States.
Enhancement: Activities conducted in existing wetlands or other
aquatic resources which increase one or more aquatic functions.
Ephemeral stream: An ephemeral stream has flowing water only
during, and for a short duration after, precipitation events in a
typical year. Ephemeral stream beds are located above the water table
year-round. Groundwater is not a source of water for the stream. Runoff
from rainfall is the primary source of water for stream flow.
Farm tract: A unit of contiguous land under one ownership which is
operated as a farm or part of a farm.
Independent utility: A test to determine what constitutes a single
and complete project in the Corps regulatory program. A project is
considered to have independent utility if it would be constructed
absent the construction of other projects in the project area. Portions
of a multi-phase project that depend upon other phases of the project
do not have independent utility. Phases of a project that would be
constructed even if the other phases are not built can be considered as
separate single and complete projects with independent utility.
Intermittent stream: An intermittent stream has flowing water
during certain times of the year, when groundwater provides water for
stream flow. During dry periods, intermittent streams may not have
flowing water. Runoff from rainfall is a supplemental source of water
for stream flow.
Loss of waters of the United States: Waters of the United States
that include the filled area and other waters that are permanently
adversely affected by flooding, excavation, or drainage as a result of
the regulated activity. Permanent adverse effects include permanent
above-grade, at-grade, or below-grade fills that change an aquatic area
to dry land, increase the bottom elevation of a waterbody, or change
the use of a waterbody. The acreage of loss of waters of the United
States is the threshold measurement of the impact to existing waters
for determining whether a project may qualify for an NWP; it is not a
net threshold that is calculated after considering compensatory
mitigation that may be used to offset losses of aquatic functions and
values. The loss of stream bed includes the linear feet of perennial or
intermittent stream that is filled or excavated. Waters of the United
States temporarily filled, flooded, excavated, or drained, but restored
to preconstruction contours and elevations after construction, are not
included in the measurement of loss of waters of the United States.
Non-tidal wetland: A non-tidal wetland is a wetland (i.e., a water
of the United States) that is not subject to the ebb and flow of tidal
waters. The definition of a wetland can be found at 33 CFR 328.3(b).
Non-tidal wetlands contiguous to tidal waters are located landward of
the high tide line (i.e., spring high tide line).
Open water: An area that, during a year with normal patterns of
precipitation, has standing or flowing water for sufficient duration to
establish an ordinary high water mark. Aquatic vegetation within the
area of standing or flowing water is non-emergent, vegetated shallows,
sparse, or absent. This term includes rivers, streams, lakes, and
ponds.
Perennial stream: A perennial stream has flowing water year-round
during a typical year. The water table is located above the stream bed
for most of the year. Groundwater is the primary source of water for
stream flow. Runoff from rainfall is a supplemental source of water for
stream flow.
Permanent above-grade fill: A discharge of dredged or fill material
into waters of the United States, including wetlands, that results in a
substantial increase in ground elevation and permanently converts part
or all of the waterbody to dry land. Structural fills authorized by
NWPs 3, 25, 36, etc. are not included.
Playa: A type of marsh found on the high plain of northern Texas
and eastern New Mexico that is characterized by small, seasonally
flooded basins with clay or fine sandy loam hydric soils and emergent
hydrophytic vegetation.
Prairie pothole: A type of marsh found on glacial till in
Minnesota, Iowa, North Dakota, South Dakota, and Montana that is
characterized by small seasonally or permanently flooded depressions
and emergent hydrophytic vegetation.
Preservation: The protection of ecologically important wetlands or
other aquatic resources in perpetuity through the implementation of
appropriate legal and physical mechanisms. Preservation may include
protection of upland areas adjacent to wetlands as necessary to ensure
protection and/or enhancement of the overall aquatic ecosystem.
Project area: The acreage of land, including waters of the United
States and uplands, utilized for the single and complete project. The
acreage is determined by the amount of land cleared, graded, and/or
filled to construct the single and complete project, including any
buildings, utilities, stormwater management facilities, roads, yards,
and other attendant features. The project area also includes any other
land that is used in conjunction with the single and complete project,
such as open space. Roads constructed by State or local governments for
general public use are not included in the project area.
Restoration: Re-establishment of wetland and/or other aquatic
resource characteristics and function(s) at a site where they have
ceased to exist, or exist in a substantially degraded state.
[[Page 39371]]
Riffle and pool complex: Riffle and pool complexes are special
aquatic sites under the 404(b)(1) Guidelines. Steep gradient sections
of streams are sometimes characterized by riffle and pool complexes.
Such stream sections are recognizable by their hydraulic
characteristics. The rapid movement of water over a course substrate in
riffles results in a rough flow, a turbulent surface, and high
dissolved oxygen levels in the water. Pools are deeper areas associated
with riffles. Pools are characterized by a slower stream velocity, a
streaming flow, a smooth surface, and a finer substrate.
Single and complete project: The term ``single and complete
project'' is defined at 33 CFR 330.2(i) as the total project proposed
or accomplished by one owner/developer or partnership or other
association of owners/developers (see definition of independent
utility). For linear projects, the ``single and complete project''
(i.e., a single and complete crossing) will apply to each crossing of a
separate water of the United States (i.e., a single waterbody) at that
location. An exception is for linear projects crossing a single
waterbody several times at separate and distant locations: Each
crossing is considered a single and complete project. However,
individual channels in a braided stream or river, or individual arms of
a large, irregularly-shaped wetland or lake, etc., are not separate
waterbodies.
Stormwater management: Stormwater management is the mechanism for
controlling stormwater runoff for the purposes of reducing downstream
erosion, water quality degradation, and flooding and mitigating the
adverse effects of changes in land use on the aquatic environment.
Stormwater management facilities: Stormwater management facilities
are those facilities, including but not limited to, stormwater
retention and detention ponds and BMPs, which retain water for a period
of time to control runoff and/or improve the quality (i.e., by reducing
the concentration of nutrients, sediments, hazardous substances and
other pollutants) of stormwater runoff.
Stream bed: The substrate of the stream channel between the
ordinary high water marks. The substrate may be bedrock or inorganic
particles that range in size from clay to boulders. Wetlands contiguous
to the stream bed, but outside of the ordinary high water marks, are
not considered part of the stream bed.
Stream channelization: The manipulation of a stream channel to
increase the rate of water flow through the stream channel.
Manipulation may include deepening, widening, straightening, armoring,
or other activities that change the stream cross-section or other
aspects of stream channel geometry to increase the rate of water flow
through the stream channel. A channelized stream remains a water of the
United States, despite the modifications to increase the rate of water
flow.
Tidal wetland: A tidal wetland is a wetland (i.e., a water of the
United States) that is inundated by tidal waters. The definitions of a
wetland and tidal waters can be found at 33 CFR 328.3(b) and 33 CFR
328.3(f), respectively. Tidal waters rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters end where the rise and fall of the water surface
can no longer be practically measured in a predictable rhythm due to
masking by other waters, wind, or other effects. Tidal wetlands are
located channelward of the high tide line (i.e., spring high tide line)
and are inundated by tidal waters two times per lunar month, during
spring high tides.
Vegetated shallows: Vegetated shallows are special aquatic sites
under the 404(b)(1) Guidelines. They are areas that are permanently
inundated and under normal circumstances have rooted aquatic
vegetation, such as seagrasses in marine and estuarine systems and a
variety of vascular rooted plants in freshwater systems.
Vernal pool: A type of marsh found in Mediterranean-type climates
(i.e., wet winters and dry summers), especially on coastal terraces in
southwestern California, the central valley of California, and areas
west of the Sierra Mountains, that is characterized by shallow,
seasonally flooded wet meadows with emergent hydrophytic vegetation.
Waterbody: A waterbody is any area that in a normal year has water
flowing or standing above ground to the extent that evidence of an
ordinary high water mark is established. Wetlands contiguous to the
waterbody are considered part of the waterbody.
[FR Doc. 99-18292 Filed 7-20-99; 8:45 am]
BILLING CODE 3710-92-P