[Federal Register Volume 65, Number 47 (Thursday, March 9, 2000)]
[Notices]
[Pages 12818-12899]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5194]
[[Page 12817]]
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Part III
Department of Defense
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Department of the Army, Corps of Engineers
Final Notice of Issuance and Modification of Nationwide Permits; Notice
Federal Register / Vol. 65, No. 47 / Thursday, March 9, 2000 /
Notices
[[Page 12818]]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
Final Notice of Issuance and Modification of Nationwide Permits
AGENCY: Army Corps of Engineers, DoD.
ACTION: Final notice.
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SUMMARY: The Corps of Engineers (Corps) is issuing 5 new Nationwide
Permits (NWPs) and modifying 6 existing NWPs to replace NWP 26 which
expires on June 5, 2000. The Corps is also modifying nine NWP general
conditions and adding two new NWP general conditions. The new NWP
general conditions will increase protection of designated critical
resource waters and waters of the United States within 100-year
floodplains. In December 1996, the Corps decided to replace NWP 26,
which authorizes discharges of dredged or fill material into headwaters
and isolated waters of the United States, with activity-specific NWPs.
The new and modified NWPs authorize many of the same activities that
NWP 26 authorized, but the new and modified NWPs are activity-specific,
with terms and conditions to ensure that these activities result in
minimal adverse effects on the aquatic environment. The new and
modified NWPs will substantially increase protection of the aquatic
environment, while efficiently authorizing activities with minimal
adverse effects on the aquatic environment. The maximum acreage limits
of most of the new and modified NWPs is \1/2\ acre. Most of the new and
modified NWPs require notification to the district engineer for
activities that result in the loss of greater than \1/10\ acre of
waters of the United States. This notice also constitutes the Corps
application to States, Tribes, and the Environmental Protection Agency
(EPA) for Section 401 water quality certification (WQC) and Coastal
Zone Management Act (CZMA) consistency determinations. These agencies
have 90 days to determine if the new and modified NWPs meet state or
Tribal water quality standards and are consistent with state coastal
zone management plans.
DATES: The new and modified NWPs and general conditions will become
effective on June 5, 2000. The expiration date for NWP 26 is June 5,
2000.
ADDRESSES: HQUSACE, ATTN: CECW-OR, 20 Massachusetts Avenue, NW,
Washington, DC 20314-1000.
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
In the December 13, 1996, issue of the Federal Register (61 FR
65874) the Corps reissued NWP 26 for a period of two years and
announced its intention to replace NWP 26 with activity-specific NWPs.
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. 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. Isolated waters are
non-tidal waters of the United States that are not part of a surface
tributary system to interstate or navigable waters and are not adjacent
to such surface tributary systems to interstate or navigable waters.
In the July 1, 1998, issue of the Federal Register (63 FR 36040)
the Corps published its initial proposal to replace NWP 26, including 6
new NWPs, modifying 6 existing NWPs, modifying 6 NWP general
conditions, and adding one new NWP general condition. In the October
14, 1998, issue of the Federal Register (63 FR 55095), the Corps
published a supplementary proposal to limit the use of the proposed new
and modified NWPs in 100-year floodplains, impaired waters, and
designated critical resource waters. In the October 14, 1998, Federal
Register notice, the Corps also announced the withdrawal of the
proposed NWP for master planned development activities and the
extension of the expiration date of NWP 26 to September 15, 1999. The
Corps also announced, in the October 14, 1998, Federal Register notice,
its intent to solicit additional comments on the proposed new and
modified NWPs and regional conditions proposed by Corps districts.
As a result of the comments received in response to the July 1,
1998, and October 14, 1998, Federal Register notices, the Corps made
changes to the proposed NWPs and general conditions. The Corps also
modified and reproposed the three new NWP general conditions to limit
the use of NWPs in 100-year floodplains, impaired waters, and
designated critical resource waters. The draft NWPs and general
conditions were published in the July 21, 1999, issue of the Federal
Register (64 FR 39252) for a 45-day comment period. Concurrent with
this Federal Register notice, Corps districts proposed the latest
drafts of their proposed regional conditions for the new and modified
NWPs. In the September 3, 1999, issue of the Federal Register (64 FR
48386), the Corps announced that the comment period for the draft NWPs
and general conditions was extended an additional 30 days to provide a
75-day comment period. The comment period for the July 21, 1999,
Federal Register notice ended on October 7, 1999. In the September 3,
1999, Federal Register notice, the Corps also announced that the
expiration date of NWP 26 was extended to January 5, 2000.
As a result of the number of substantial comments received in
response to the July 21, 1999, Federal Register notice and the need for
additional time to review those comments and develop the final NWPs and
general conditions, the Corps issued another Federal Register notice on
December 15, 1999 (64 FR 69994). This Federal Register notice announced
a revised expiration date for NWP 26 and the process for accepting NWP
26 PCNs. The expiration date for NWP 26 was extended to April 14, 2000.
Since the schedule published in the December 15, 1999, Federal
Register notice has changed, we are extending the expiration date of
NWP 26 to June 5, 2000. NWP 26 PCNs submitted on or before March 9,
2000, (whether required or not) will be reviewed under the existing
terms and conditions of NWPs. If those activities are authorized by NWP
26, their authorizations will be valid until February 11, 2002. If the
activity is under construction or under contract prior to February 11,
2002, the permittee will have 12 additional months to complete the
authorized activity. NWP 26 PCNs for activities that require
notification which are submitted after March 9, 2000, will be reviewed
under the new and modified NWPs or other types of DA authorization,
such as individual permits. NWP 26 activities that do not require a PCN
are authorized by NWP 26 until June 5, 2000. For those NWP 26
activities that do not require notification, the permittee has 12
months to complete the work if construction begins or is under contract
before June 5, 2000.
The terms and limits of the new and modified NWPs are intended to
authorize activities that have minimal adverse effects on the aquatic
environment, individually and cumulatively. Most of the new NWPs
authorize activities in non-tidal waters of the United States,
excluding non-tidal wetlands adjacent to tidal waters. The
[[Page 12819]]
acreage limit for most of the new and modified NWPs is \1/2\ acre. For
the new and modified NWPs, the Corps has established pre-construction
notification (PCN) thresholds to ensure that any activity that
potentially may have more than minimal adverse effects on the aquatic
environment is reviewed by a district engineer on a case-by-case basis.
Most of the new NWPs require submission of a PCN for discharges of
dredged or fill material resulting in the loss of greater than \1/10\
acre of waters of the United States. Regional conditions may be added
to the NWPs by division engineers to lower notification thresholds.
The new and modified NWPs issued today will become effective on
June 5, 2000. This Federal Register notice begins the 90-day Clean
Water Act Section 401 water quality certification (WQC) and Coastal
Zone Management Act (CZMA) consistency determination processes. Because
of the changes to the proposed new and modified NWPs, including the
general conditions, we have increased the normal 60-day WQC and CZMA
consistency determination processes to 90 days. During this 90-day
period, Corps divisions and districts will finalize their regional
conditions for the new and modified NWPs.
Discussion of Public Comments
I. Overview
In response to the July 21, 1999, Federal Register notice, we
received over 1,700 comments. We reviewed and fully considered all of
these comments. Most of the commenters expressed opposition to the
proposed NWPs, but a few commenters indicated support for these NWPs.
One commenter stated that NWP 26 should be retained without any
changes. A number of commenters support the current NWP program,
because data collected by the Corps during Fiscal Year (FY) 1997
indicates that there are net gains in aquatic resources because of the
Corps mitigation requirements. These commenters indicated that this net
gain demonstrates that the current NWP program results only in minimal
adverse effects on the aquatic environment.
After considering the comments received in response to the July 21,
1999, Federal Register notice, we have made several important changes
to the new and modified NWPs. For most of these NWPs, we have
established a \1/2\ acre limit. Notification to the district engineer
will be required for most activities that result in the loss of greater
than \1/10\ acre of waters of the United States. For NWPs 39, 40, 42,
and 43, we have imposed a 300 linear foot limit for filling and
excavating stream beds. We have also increased the notification review
period to 45 days. We have revised nine general conditions and added
two new general conditions. The new NWP general conditions limit
activities in designated critical resource waters and fills in waters
of the United States within 100-year floodplains. All above-grade fill
under NWPs 29, 39, 40, 42, 43, and 44 is prohibited within the FEMA-
mapped 100-year floodplain below the headwaters of any stream. Within
the headwaters, above-grade fill is prohibited within the FEMA-mapped
regulatory floodway, and any above-grade fill in the flood fringe must
meet FEMA standards.
These new restrictions on use of the NWPs will substantially
increase the protection of the Nation's aquatic environment. These
revised NWPs continue a trend by the Corps of Engineers of enhancing
the protection of the aquatic environment through the NWP program. In
1977 the predecessor to NWP 26 authorized unlimited fill in headwaters
and isolated waters without any notification of the Corps. In 1984 the
Corps established a maximum project specific impact limit of 10 acres
and a notification of the Corps for any impact greater than 1 acre. In
1996, we reduced these project specific limits to 3 acres maximum and
\1/3\ acre for notification of the Corps. To further ensure that the
NWP program properly protects the aquatic environment, the Corps is
conducting a Programmatic Environmental Impact Statement, which will be
completed in early 2001. To ensure full protection of endangered
species, the Corps is formally consulting with the U.S. Fish and
Wildlife Service and the National Marine Fisheries Service on the NWP
program.
All of these substantial improvements will increase costs to
applicants to some degree and will increase the funding needed by the
Corps to maintain our current level of service to the public. Based on
a report prepared by the Corps Institute for Water Resources (IWR) in
response to the Corps FY 2000 Appropriations Act, the changes to the
NWP program announced today will increase direct costs for permit
applicants by about $20 million per year. Further, based on the IWR
report, the Corps would need about $6 million in additional funding to
maintain current levels of service to the public. We believe the
changes are necessary to ensure the statutory requirement that general
permits, including NWPs, will have no more than minimal adverse effects
on the aquatic environment.
II. General Comments
In the following discussion, where the comments and responses were
the same as for the July 21, 1999, Federal Register notice, we referred
to the July 21, 1999, Federal Register notice instead of repeating
those responses.
Many commenters objected to the proposed NWPs for the following
reasons: (1) The proposed NWPs are too complex; (2) the proposed NWPs
are contrary to the Congressional intent of Section 404(e) of the Clean
Water Act; (3) the proposed NWPs are contrary to the Administration's
1993 Wetlands Plan, which states that Federal regulatory programs
should be fair, flexible, and effective; (4) the proposed NWPs are
contrary to the 1998 Clean Water Action Plan, which states that
duplication between Federal, state, and local agencies and Tribal
governments should be reduced wherever possible; (5) the conditions of
these NWPs will cause many activities with minimal adverse effects on
the aquatic environment to be processed as individual permits; and (6)
these NWPs will result in unnecessary and costly burdens on the
regulated public, increase delays, and increase the Corps workload
without providing any benefits.
We have reduced the complexity of these NWPs as much as possible by
making the scope of applicable waters for most of the new NWPs the same
and establishing similar PCN thresholds. In addition, we have
eliminated the indexed acreage limits from NWPs 39 and 40 and
established a \1/2\ acre limit for these NWPs. However, some complexity
is unavoidable because different activities in waters of the United
States do not have the same effects on the aquatic environment and each
NWP must have different conditions to address those dissimilar impacts.
The new and modified NWPs are conditioned to ensure that only those
activities that have minimal adverse effects on the aquatic environment
are authorized by these permits.
The new and modified NWPs are not contrary to Section 404(e) of the
Clean Water Act, because each NWP authorizes activities that are
similar in nature, with terms and conditions to ensure that those NWPs
authorize only activities with minimal adverse effects on the aquatic
environment. These NWPs still provide an expedited authorization
process when compared to the standard permit process, because the
district engineer must respond to the applicant within 45 days of the
receipt date for a complete preconstruction
[[Page 12820]]
notification (PCN). The 45-day PCN review period is shorter than the
average evaluation time for individual permits, which was 100 days in
FY 1999.
The new and modified NWPs comply with the President's 1993 Wetlands
Plan, by allowing the Corps regulatory program to 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 new and modified NWPs, including the new and
modified general conditions, will more clearly address individual and
cumulative adverse effects on the aquatic environment and ensure that
those adverse effects are minimal. The new and modified NWPs address
specific applicant group needs and provide more predictability and
consistency to the regulated public. During the development of these
NWPs, we recognized the concerns of the natural resource agencies and
environmental interest groups for 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.
Although certain aspects of the new and modified NWPs duplicate
existing Federal, state, and local agency programs, such duplication is
not contrary to the 1998 Clean Water Action Plan because it provides
additional protection for the aquatic environment. While some state and
local governments may address some of the same issues that are
addressed by the NWPs and general conditions, there are many areas of
the country where those issues are not addressed. Therefore, we believe
it is necessary to add certain conditions to the NWPs to address
potential adverse effects to the aquatic environment. For example,
General Condition 9 requires a water quality management plan for
certain NWP activities, unless the state or Tribal Section 401 agency
requires an adequate water quality management plan. If the state or
Tribe does not adequately address impacts to water quality through its
water quality certification process, the district engineer can require
additional measures such as stormwater management facilities and
vegetated buffers to protect water quality. There are circumstances
where the Corps needs to consider more stringent NWP requirements to
ensure that the adverse effects to the aquatic environment are minimal,
individually and cumulatively.
We agree that the terms and conditions of the new and modified NWPs
may cause some activities with minimal adverse effects on the aquatic
environment to be subject to the individual permit process. It is
important to note that aquatic resource functions and values differ
greatly across the country. When developing NWPs that have national
applicability, there will be many parts of the country where the terms
and limits of the NWPs will not authorize some activities that have
minimal adverse effects on the aquatic environment. In these areas,
district engineers can issue regional general permits in the future to
provide expedited authorization for categories of activities with
minimal adverse effects on the aquatic environment.
However, for six months after the publication date of the new and
modified NWPs, district engineers will not issue regional general
permits or letters of permission (LOPs) that explicitly authorize the
same activities as the new and modified NWPs. This six month period
will allow Corps districts to assess how effectively the new and
modified NWPs authorize activities with minimal adverse effects on the
aquatic environment, individually and cumulatively.
As required by the Energy and Water Development Appropriations Act,
2000, we have conducted a study of the workload and compliance costs of
the NWPs, including the new general conditions, proposed in the July
21, 1999, Federal Register notice. The report for this study was
finalized in January 2000. This report is available on the Internet at
the Corps headquarters regulatory home page.
The workload and compliance costs study determined that the
proposal published in the July 21, 1999, Federal Register would
increase the number of standard individual permit applications received
by the Corps by 4,429 per year. This and other workload increases would
result in direct compliance costs incurred by the regulated public by
an estimated $46 million annually. The study also examined indirect
compliance costs (i.e., opportunity costs) of the July 21, 1999,
proposal. The indirect compliance costs include the opportunity costs
that result from increases in permit processing times and an estimate
of foregone development value caused by the vegetated buffer
requirement. The study estimates that the processing times for standard
permits would steadily increase each year if the July 21, 1999,
proposal were to be implemented and Corps budget resources are not
increased. Within five years, the average standard permit processing
time and number of backlogged permit applications would increase three
to four times the levels measured in FY 1998.
The study also examined an alternative replacement NWP package that
included lowering the acreage limit of the new and modified NWPs to \1/
2\ acre and withdrawing the three proposed new NWP general conditions.
The alternative replacement NWP package would result in 40% fewer
standard permit applications and 30% less direct compliance costs than
the July 21, 1999, proposal would. After five years, the standard
permit processing times and permit application backlog would be
approximately \1/2\ of that estimated for the proposal published in the
July 21, 1999, Federal Register.
Many commenters objected to the Corps statement in the July 21,
1999, Federal Register notice that NWPs are optional permits, and that
if they do not want to comply with the terms and conditions of the
NWPs, then they can request an individual permit. Numerous commenters
indicated that the new and modified NWPs are likely to result in
decreased protection of the aquatic environment because of the higher
numbers of individual permits and a greater workload for the Corps that
would result if these NWPs were implemented as proposed. Some
commenters also stated that the new and modified NWPs would also result
in less protection of the aquatic environment because project
proponents would have less incentive to build projects with smaller
impacts to aquatic resources due to the strict acreage limits,
notification requirements, and conditions. In contrast, one commenter
said that developers will modify their projects to comply with the new
and modified NWPs. Another commenter said that the costs to the Corps
and regulated public that are imposed by the new and modified NWPs will
be offset by the additional environmental protection provided by those
NWPs.
NWPs provide an expedited Corps permit process for activities that
have minimal adverse effects on the aquatic environment, individually
and cumulatively. The NWPs are conditioned to ensure that only
activities with minimal adverse effects are authorized. If a
prospective permittee cannot comply with all of the terms and
conditions of the NWPs, then he or she can request another form of
Department of the Army (DA) authorization, such as a regional general
permit or a standard individual permit.
[[Page 12821]]
We believe that the terms and conditions of the new and modified
NWPs, including the \1/2\ acre limit and \1/10\ acre PCN threshold, are
substantially more protective of the aquatic environment. The terms and
conditions of these NWPs will ensure that only activities with minimal
adverse effects on the aquatic environment are authorized by NWPs. Many
project proponents will design their projects to comply with the \1/2\
acre limit so that they can qualify for an NWP and receive
authorization more quickly than they could through the standard permit
process.
Many commenters stated that the new and modified NWPs would cause
more than minimal adverse effects on the aquatic environment,
individually and cumulatively. A few commenters said that the proposed
NWPs do not comply with the requirement that general permits authorize
only activities that are similar in nature. A number of commenters
objected to the NWPs, because they provide no opportunity for the
public to comment on individual projects.
We have developed terms and conditions for the new and modified
NWPs to ensure that they authorize only those activities that result in
minimal individual or cumulative adverse effects on the aquatic
environment. The new and modified NWPs have PCN thresholds that require
prospective permittees to notify district engineers prior to conducting
activities that could result in more than minimal adverse effects. Most
of the new and modified NWPs require notification to district engineers
for discharges resulting in the loss of greater than \1/10\ acre of
waters of the United States. Division engineers can regionally
condition these NWPs to lower notification thresholds, protect high
value waters, or add additional restrictions to ensure that authorized
activities result only in minimal adverse effects. District engineers
will review PCNs on a case-by-case basis to determine if the adverse
effects of the proposed work are minimal. If the adverse effects of a
particular activity are more than minimal, the district engineer can
either add conditions to the NWP authorization to ensure that the
adverse effects on the aquatic environment are minimal or exercise
discretionary authority to require an individual permit for the
proposed work.
Each of the new and modified NWPs authorizes activities that are
similar in nature, in full compliance with section 404(e) of the Clean
Water Act. This issue was discussed in detail in the July 21, 1999,
Federal Register notice (64 FR 39263), and we have not changed our
position on this matter.
The intent of general permits, including NWPs, is to efficiently
authorize activities that have minimal adverse effects on the aquatic
environment. These activities are usually non-controversial, and would
generate few or no comments from the public if they were subject to the
standard permit process. Conducting full public interest reviews for
activities with minimal adverse effects on the aquatic environment
would substantially increase the Corps workload with little or no added
value for the aquatic environment.
A large number of commenters objected to the proposed NWPs, stating
that the new and modified NWPs would result in significant wetland
losses. Many commenters said that the new and modified NWPs would
undermine the Administration's goal of net gain in wetland acreage
stated in the Clean Water Action Plan.
The new and modified NWPs will not result in significant losses of
wetlands because they are conditioned to require prospective permittees
to avoid and minimize impacts to waters of the United States on-site to
the maximum extent practicable (see General Condition 19). In addition,
the \1/2\ acre limit will substantially reduce wetland losses.
Compensatory mitigation is often required for activities that require
notification to the district engineer, which offset losses of wetlands
and other aquatic habitats so that significant losses of wetlands do
not occur as a result of the NWP program.
As discussed in the July 21, 1999, Federal Register notice, the NWP
program supports the Administration's goal of no net loss and is not
contrary to the goals of the Clean Water Action Plan.
Several commenters objected to the proposed NWPs, stating that the
NWPs place too much reliance on the assertion of discretionary
authority by district engineers. They said that this process does not
provide adequate protection of the aquatic environment. Another
commenter stated that the proposed NWPs are inappropriately based on
the intent of the prospective permittee, instead of potential impacts
to aquatic resources. One commenter indicated that there is too much
overlap between the new and modified NWPs, which would be confusing to
permit applicants.
We disagree with these commenters, because the notification process
allows case-by-case review of those activities that have the potential
for more than minimal adverse effects on the aquatic environment. If
the adverse effects of the proposed activity are more than minimal,
then the district engineer can either add special conditions to the NWP
authorization to ensure that the activity results in minimal adverse
effects or exercise discretionary authority and require an individual
permit. This process provides substantial protection for the aquatic
environment.
The new and modified NWPs are activity-specific to satisfy the
requirements of section 404(e) of the Clean Water Act. These NWPs
address impacts to the aquatic environment, because they are limited to
certain types of waters and are conditioned to ensure that the adverse
effects resulting from the authorized work are minimal, individually
and cumulatively. Since these NWPs are activity-specific, they have to
reflect specific categories of work that are conducted by individuals
of certain occupations.
Although there is some overlap between the activities authorized by
the new and modified NWPs, such redundancy is necessary because our
intent was to develop NWPs that authorize single and complete projects
generally without having to resort to using multiple NWPs. For
instance, NWP 39 authorizes most features of residential, commercial,
or institutional developments, including road crossings and stormwater
management facilities.
Several commenters stated that the NWPs should only authorize
activities that are water dependent. One of these commenters said that
limiting the NWPs only to water dependent activities would result in a
regulatory program that is easier to administer and result in wetland
gains. Some commenters indicated that the proposed NWPs do not comply
with the Section 404(b)(1) guidelines.
We addressed the issue of water dependency in the preamble of the
July 21, 1999, Federal Register notice and have not changed our
position on this issue. The new and modified NWPs comply fully with the
requirements for general permits in the Section 404(b)(1) guidelines
(see 40 CFR 230.7).
A few commenters opposed the new and modified NWPs because they
said that the Corps has failed to define the term ``minimal effects''
in an understandable or meaningful way. Many commenters stated that the
minimal adverse effects criterion for the NWPs is too subjective and
that an assessment procedure that considers the size of impacts and
quality of waters must be used instead.
The term ``minimal effect'' as it is used in the context of general
permits,
[[Page 12822]]
including NWPs, cannot be simply defined. The terms and conditions of
general permits are established so that those permits authorize most
activities that result in minimal adverse effects on the aquatic
environment. Preconstruction notifications are an important mechanism
to ensure compliance with the minimal adverse effect requirement. Case-
specific special conditions and regional general conditions are also
important for addressing site-specific and regional concerns for the
aquatic environment and ensuring that the NWPs authorize only
activities with minimal adverse effects. For activities that require
notification to the district engineer, the minimal adverse effects
determination requires consideration of site-specific factors, such as
the quality of waters that may be impacted by the proposed work, the
functions and values of those waters, the geographic setting of the
proposed work, and other factors. The minimal adverse effects criterion
must be subjective, due to the complexity of the analysis required.
Two commenters suggested issuing the new NWPs with an expiration
date of February 11, 2002, so that these NWPs will expire on the same
day as the current NWPs. One commenter said that the new NWPs should be
reevaluated when the current NWPs are reevaluated to determine if the
use of all NWPs will result in more than minimal impacts. Two
commenters recommended allowing NWP 26 to expire in January 2000 and
not issuing the new NWPs until the next NWP reissuance in 2002. In the
interim, individual permits would be required for activities that do
not qualify for any of the current NWPs.
The new and modified NWPs issued today will expire on June 5, 2005
(i.e., five years from their effective date). However, when the current
NWPs are proposed for reissuance in 2002, the new and modified NWPs are
likely to be part of that proposal, so that all of the NWPs will be on
the same five year cycle for review. We do not agree with the third
comment of the previous paragraph. Allowing NWP 26 to expire prior to
the effective date of the new and modified NWPs would be unfair to the
regulated public.
Several commenters requested that the expiration date for NWP 26
should be extended to the expiration date of the current NWPs to ensure
that NWP 26 is available until the effective date of the new and
modified NWPs.
We do not agree that it is necessary to extend the expiration date
of NWP 26 to February 11, 2002, because the new and modified NWPs will
become effective on June 5, 2000. Keeping NWP 26 in place while the new
and modified NWPs are effective would be contrary to the Corps goal of
replacing NWP 26 with activity-specific NWPs.
One commenter suggested that the Corps clarify in this Federal
Register notice that activities authorized by NWP 26 prior to the
expiration date will continue to be authorized by NWP 26 for 12 months,
provided the permittee has commenced construction or is under contract
to commence construction. Another commenter recommended changing the
12-month grandfather provision for the NWPs to 24 months to provide
adequate time for the completion of transportation projects.
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, before the date NWP 26 expires (see
33 CFR 330.6(b)). Except as indicated below, 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 330.4(e) and 33 CFR 330.5(c) or
(d). We do not agree that it is necessary to increase the time period
for the grandfathering provision from 12 months to 24 months. However,
anyone who submitted a NWP 26 PCN on or before March 9, 2000, will have
until February 11, 2003, to complete the work, provided the permittee
receives an NWP 26 verification and has commenced construction or
signed a construction contract prior to February 11, 2002.
Jurisdictional Issues
In response to the July 21, 1999, Federal Register notice, we
received many comments concerning the scope of the Corps regulatory
authority. These comments addressed excavation activities in waters of
the United States and whether ephemeral streams, drainage ditches, and
certain other categories of waterbodies are waters of the United
States. Today's action addresses only NWPs, and in no way affects or
alters the geographic or activities-based jurisdiction of the CWA nor
is it intended to create new policy related to such jurisdiction.
Many commenters said that the Corps is ignoring recent court
decisions by including excavation activities as regulated activities in
the text of the new and modified NWPs. 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. Two commenters stated that
the reference to excavation activities in the new and modified NWPs
requires project proponents to submit a notification to the Corps to
determine if a Corps permit is required. One commenter said that the
final NWPs should contain guidance that explains when excavation is a
regulated activity. This commenter also recommended that the Corps
clarify how excavation activities are included in the calculation of
acreage loss of waters of the United States, to determine if a
particular activity exceeds PCN thresholds or NWP acreage limits.
The agencies revised their regulations on May 10, 1999, to respond
to the results of the American Mining Congress lawsuit (64 FR 25120).
It is important to recognize that not all excavation activities in
waters of the United States are conducted so that only incidental
fallback occurs. Excavation activities that result in the redeposit of
dredged material into waters of the United States other than incidental
fallback require a Section 404 permit. For example, excavated material
may be temporarily stockpiled in waters of the United States before it
is removed. Excavation activities that result only in discharges
identified by the Corps as ``incidental fallback'' do not require a
Section 404 permit. However, all excavation activities in Section 10
navigable waters require Corps permits under section 10 of the Rivers
and Harbors Act of 1899. We have retained the excavation language in
the new and modified NWPs and the definition of ``loss of waters of the
United States'' because some excavation activities in Section 404 only
waters of the United States result in discharges that still
[[Page 12823]]
require a Section 404 permit. These activities may be authorized by
NWPs. NWPs issued under the Corps Section 10 authority also authorize
excavation activities in navigable waters of the United States. No
permit is required for excavation activities that do not meet the
definition of discharge of dredged or fill material. As with any
activity in waters of the United States, a landowner who is uncertain
whether their activity needs a permit may contact the Corps.
Two commenters noted that a statement in the July 21, 1999, Federal
Register notice (64 FR 39276) concerning excavation activities is
inaccurate and misleading. This statement said that excavation
activities that result in the replacement of an aquatic area with dry
land or change the bottom elevation of a waterbody require a Section
404 permit. These commenters said that this statement is actually the
definition of ``fill material'' and that excavation cannot, by itself,
result in the replacement of an aquatic area with dry land or change
the bottom elevation of a waterbody.
We agree that the statement in the Federal Register is inaccurate
and have included clarification concerning when excavation activities
require a Section 404 and/or a Section 10 permit from the Corps (see
the above discussion). Excavation activities can change the bottom
elevation of a waterbody by removing material and increasing the depth
of the waterbody. Increasing the depth of a waterbody without
associated discharges of dredged material other than incidental
fallback does not require a Section 404 permit, but a Section 10 permit
would be required if the activity is in Section 10 waters. However, an
excavation activity that involves redeposit of dredged material into
waters of the United States other than incidental fallback or involves
the discharge of fill material that increases the bottom elevation of a
waterbody or creates dry land requires a Section 404 permit (unless the
activity qualifies for a Section 404(f) exemption).
A number of commenters stated that the Corps does not have
authority to regulate discharges into ephemeral streams because these
watercourses, by definition, contain water only briefly and therefore
are not waters of the United States. One of these commenters noted that
33 CFR 328.3 includes intermittent streams, but does not include
ephemeral streams. A few commenters remarked that the Corps has not
explained how an ordinary water mark can be present in a watercourse
that has water flow only during a short time after rain events. These
commenters assert that under ordinary circumstances, ephemeral
watercourses do not have flowing water and cannot develop an ordinary
high water mark (OHWM). They said that the Corps needs to define what
constitutes an ``ordinary flow'' in an ephemeral watercourse that
establishes an OHWM and what indicators are to be used to determine the
presence and location of the OHWM. In addition, these commenters stated
that the Corps cannot use peak flows and flood stages in lieu of
ordinary flows and the Corps cannot use cut banks, shelving, or debris
that is influenced only by peak flows or flooding.
An ephemeral stream is a water of the United States, provided it
has an OHWM. An ephemeral stream that does not have an OHWM is not a
water of the United States. The frequency and duration at which water
must be present to develop an OHWM has not been established for the
Corps regulatory program. District engineers use their judgement on a
case-by-case basis to determine whether an OHWM is present. The
criteria used to identify an OHWM are listed in 33 CFR 328.3(e).
Several commenters said that the Corps can only exercise
jurisdictional authority over those ephemeral waters that are
tributaries to waters of United States. These commenters said that the
low frequency of water flows in these watercourses requires the Corps
to define criteria and circumstances to determine whether ephemeral
watercourses are tributaries to waters of the United States. Some
commenters also stated that the Corps has not demonstrated how
ephemeral streams have any nexus to interstate commerce or how
discharges of dredged or fill material into those watercourses would
affect interstate commerce.
We agree that ephemeral streams that are tributary to other waters
of the United States are also waters of the United States, as long as
they possess an OHWM. The upstream limit of waters of the United States
is the point where the OHWM is no longer perceptible (see 51 FR 41217).
Ephemeral streams that are part of an interstate surface tributary
system are waters of the United States, because they are an integral
part of that surface tributary system, which supports interstate
commerce.
Three commenters stated that the proposed NWPs illegally assert
jurisdiction over drainage ditches. Three commenters objected to a
statement in the July 21, 1999, Federal Register notice that drainage
ditches constructed in waters of the United States remain waters of the
United States. These commenters said that if a drainage ditch converts
a water of United States to a non-jurisdictional upland, the drainage
ditch would not be a water of United States unless the area remains a
wetland or other type of water of United States. These commenters also
objected to the Corps assertion that non-tidal drainage ditches are
waters of the United States if they extend the OHWM of an existing
water of the United States. They said that this position is contrary to
preamble to November 13, 1986, final rule for the Corps regulatory
program (51 FR 41217) and that this change requires justification. One
commenter requested that the Corps clarify whether the entire ditch
becomes jurisdictional if the OHWM becomes extended within the ditch or
whether jurisdiction is extended only to that portion of the ditch that
develops an OHWM. Two commenters asked for clarification whether a
drainage ditch that runs through a series of uplands and waters of the
United States is jurisdictional. One commenter asked how an OHWM that
develops within a drainage ditch would be determined to be due to
ordinary flows, not peak flows or flooding.
A drainage ditch constructed in a stream, wetland, or other water
of the United States remains a water of the United States, provided an
OHWM is still present. Since drainage ditches constructed in waters of
the United States are constructed either by channelizing a stream or
excavating the substrate to improve drainage, it is unlikely that the
drainage ditches will become dry land unless the hydrology is removed
by some other action. District engineers will determine, on a case-by-
case basis, whether a particular area is a water of the United States.
If the construction of a drainage ditch has legally converted the
entire area to dry land, then the area drained is not a water of the
United States, however, in most cases the drainage ditch would remain a
water of the United States.
The statement that non-tidal drainage ditches are waters of the
United States if they extend the OHWM of an existing water of the
United States is consistent with the final rule published in the
November 13, 1986, Federal Register and applies to ditches constructed
in waters or that connect waters. Nothing in the NWP notice was
intended to change the November 13, 1986, Federal Register notice which
states that drainage ditches constructed entirely in upland areas
generally are not considered to be waters of the United States.
Drainage ditches constructed in uplands that connect two waters of
the United States may be considered waters of the United States if
those ditches
[[Page 12824]]
constitute a surface water connection between those two waters of the
United States. As previously noted, drainage ditches constructed
entirely in uplands generally are not considered to be waters of the
United States. District engineers will use the criteria at 33 CFR
328.3(e) to determine the presence and extent of an OHWM that may have
developed in a drainage ditch.
One commenter stated that the July 21, 1999, Federal Register
notice incorrectly asserts jurisdiction over farmed wetlands by
considering them to be waters of the United States and the Corps does
not have authority to require permits for discharges into these areas.
Another commenter said that the Corps does not have the authority to
regulate activities in isolated wetlands. Two commenters indicated that
the Corps contradicts its regulations concerning the construction and
maintenance of stormwater management facilities. These commenters
assert that the Corps regulations published in the November 13, 1986,
Federal Register state that detention and first flush basins are
generally not considered waters of the United States. One commenter
requested clear definitions of the terms ``waters of the United
States,'' ``navigable waters,'' and ``navigable waters of the United
States.''
Farmed wetlands as defined under the Food Security Act are waters
of the United States provided they meet the criteria at 33 CFR 328.3.
In addition, those criteria further provide that prior converted
croplands are not waters of the United States. Isolated wetlands are
waters of the United States, provided they meet the criteria at 33 CFR
328.3. (Within the Fourth Circuit, isolated waters must be shown to
have an actual connection to interstate or foreign commerce.)
Stormwater management facilities constructed in waters of the United
States may, under certain circumstances, be considered waters of the
United States. The Corps has the discretion to determine on a case-by-
case basis whether or not a particular waterbody is a water of the
United States (see 51 FR 41217). The term ``waters of the United
States'' is defined at 33 CFR 328.3 and refers to the Corps Section 404
jurisdiction. The term ``navigable waters'' as used in Section 404 of
the Clean Water Act has the same meaning as ``waters of the United
States.'' The term ``navigable waters of the United States'' is defined
at 33 CFR part 329 and refers to the Corps Section 10 jurisdiction.
None of these definitions were changed by the proposed NWPs or these
final NWPs.
Procedural Comments
Many commenters stated that the Corps was required to hold public
hearings on the draft NWPs proposed in the July 21, 1999, Federal
Register notice. Some of these commenters said that the draft NWPs,
especially the three proposed new NWP general conditions, represent a
substantial change from the proposed NWPs published in the July 1,
1998, Federal Register notice and that these changes warrant an
additional public hearing. Numerous commenters stated that the 75-day
comment period was inadequate to thoroughly review and comment on the
July 21, 1999, Federal Register notice. Some of these commenters said
that the comment period should be extended because many districts did
not post their draft regional conditions on their Internet home pages
quickly enough.
We believe that we have fully complied with the public hearing
requirements of the Clean Water Act. After the publication of the July
1, 1998, Federal Register notice, public hearings on the proposed new
and modified NWPs were held across the country, including a public
hearing in Washington, DC on August 19, 1998. The proposal published in
the July 21, 1999, Federal Register was a modification of the original
July 1, 1998, proposal to replace NWP 26 with activity-specific NWPs.
The 75-day comment period for the July 21, 1999, Federal Register
notice provided adequate time for the public to review and comment on
the draft NWPs. Within one week of the publication of the July 21,
1999, Federal Register notice, 31 out of 38 districts had posted their
draft regional conditions on their Internet home pages, which allowed
the public sufficient time to consider how the regional conditioning
process affected the proposed new and modified NWPs. All Corps
districts had posted their draft regional conditions on their Internet
home pages by September 3, 1999.
A large number of commenters said that the Corps has completely
ignored the economic and workload implications of the new and modified
NWPs and general conditions proposed in the July 21, 1999, Federal
Register notice. These commenters indicated that the economic impacts
of this proposal would be substantial. Many commenters stated that the
new and modified NWPs should not be issued or implemented until an
economic and workload analysis study is completed.
As required by the Energy and Water Development Appropriations Act,
2000, we have prepared, through the Institute for Water Resources
(IWR), a study of the workload and compliance costs that would be
incurred by the July 21, 1999, proposal. The study report will be
available on the Internet at the Corps headquarters regulatory home
page. This study demonstrated that the proposal published in the July
21, 1999, Federal Register would result in substantial increases in
workload and costs to the Corps and the regulated public. The proposed
new and modified NWPs, including the three proposed general conditions,
would result in a 50% increase in the number of standard permit
applications received by the Corps each year. The proposed new and
modified NWP package would increase the Corps costs for processing
permit applications at the current levels of service by $11.5 million
annually, nearly a 15% increase over FY 1998 program funding. In
addition, the July 21, 1999, proposal would also increase the direct
compliance costs incurred by the regulated public by $46 million
annually. In contrast, the modifications to the new and modified NWPs
issued today (i.e., the \1/2\ acre limit and the revised floodplain
condition) would result in impacts very similar to the IWR estimate for
a \1/2\ acre approach to the NWPs. That IWR estimate was 40% fewer
standard permit applications than the July 21, 1999, proposal and 30%
less in direct compliance costs. It is also important to note that the
modified NWPs being issued today will protect the aquatic environment
substantially better than the July 21, 1999, proposal would. These
final NWPs are also less complex than the proposed NWPs, which will
assist the regulated public.
Many commenters stated that the proposed new and modified NWPs,
including the proposed general conditions, violate the Administrative
Procedures Act (APA). These commenters said that the Corps has failed
to provide an adequate administrative record and failed to demonstrate
that the proposed acreage limits and other restrictions are necessary
to provide protection for the aquatic environment. Some of these
commenters stated that the Corps must provide an environmental basis
for the acreage limits of the new and modified NWPs. Several commenters
said that the proposal to issue new and modified NWPs to replace NWP 26
falls under the jurisdiction of the APA, because these NWPs are an
agency statement of general applicability to implement, interpret, or
prescribe a law or policy. A number of commenters stated that the
proposed NWPs violate the APA because the schedule published in the
[[Page 12825]]
July 21, 1999, Federal Register notice implies that the decision to
issue these NWPs and new general conditions was predetermined and the
schedule did not include adequate time for the Corps to carefully
consider comments received in response to that notice.
The new and modified NWPs issued today comply with Section 404(e),
which requires notice and opportunity for public hearing. The Corps
notice and comment process is virtually the same as the APA process. We
have prepared an adequate administrative record to justify the issuance
of these NWPs. In addition, we have fully considered all comments
received in response to the July 21, 1999, Federal Register notice to
determine the terms and conditions for the new and modified NWPs. This
included three extensions of the final NWP issuance in order to fully
and fairly consider all comments.
The acreage limit for an NWP is established so that the NWP
authorizes most activities that result in minimal adverse effects on
the aquatic environment, individually or cumulatively. However, since
NWPs are issued for national applicability, the terms and conditions of
NWPs, including the acreage limits, must be restrictive enough to
ensure that the NWPs authorize only those activities with minimal
adverse effects on the aquatic environment, individually and
cumulatively, across the country. The NWPs also contain notification
requirements that provide district engineers with the opportunity to
review certain activities to determine if those activities will result
in minimal adverse effects on the aquatic environment. Aquatic resource
functions and values vary considerably across the country. Therefore,
the minimal adverse effects determination by Corps districts is based
site-specific or regional criteria.
The acreage limits of the new and modified NWPs do not preclude any
proposed activity from qualifying for a DA permit. If a proposed
activity does not meet the terms and conditions of an NWP, then that
activity could be authorized by other forms of DA permits. Regional
general permits may be available to authorize certain activities that
have minimal adverse effects on the aquatic environment based on local
environmental conditions. The proposed work may also be authorized by
individual permits, including letters of permission, if the activity
involves more than minimal adverse effects on the aquatic environment.
We recognize that there are specific activities or classes of
activities in areas of the country that will result in minimal adverse
effects on the aquatic environment, but exceed the acreage limits of
the new and modified NWPs. Corps districts can develop regional general
permits in the future to authorize these activities.
Several commenters stated that the Corps is obligated to minimize
regulatory burdens on small businesses, as required by Small Business
Regulatory Enforcement Fairness Act of 1996. Two commenters said that
the Corps is not in compliance with the Regulatory Flexibility Act
because an ``initial regulatory flexibility analysis'' was not provided
in the Federal Register notice. One commenter indicated that the Corps
must comply with the Congressional Review Act. Another commenter said
that the July 21, 1999, proposal to issue new and modified NWPs does
not comply with Executive Order 12630, ``Governmental Actions and
Interference with Constitutionally Protected Property Rights,'' because
the Corps has not identified the takings implications of the proposed
NWPs.
The new and modified NWPs comply with the Small Business Regulatory
Enforcement Fairness Act of 1996 because they provide an expedited
authorization for activities in waters of the United States that have
minimal adverse effects on the aquatic environment. We are not required
to provide an initial regulatory flexibility analysis because we
proposed to issue new and modified NWPs, not change our regulations.
The Corps believes it is not required to submit the final new and
modified NWPs to Congress pursuant to the Congressional Review Act, but
as a matter of comity, we will submit the final NWPs to Congress. The
new and modified NWPs will not result in the taking of private property
because the NWPs provide an expedited authorization process for certain
activities in waters of the United States that have minimal individual
and cumulative adverse effects on the aquatic environment but require a
Corps permit. If a proposed activity does not comply with the terms and
conditions of an NWP, then the project proponent can request another
form of DA permit, including regional general permits, letters of
permission, or individual permits. Therefore, there are no takings
implications for these NWPs.
General Terms and Limits of NWPs
One commenter stated that the acreage limits for the new and
modified NWPs are too high. One commenter said that the NWPs should not
have an acreage limit greater than 1 acre. Other commenters recommended
maximum acreage limits of \1/3\ acre and \1/4\ acre. Several commenters
suggested higher acreage limits for NWP activities in ephemeral streams
located in the western United States. Two commenters said that the NWPs
should have lower acreage limits for activities in certain types of
wetlands, such as forested wetlands, playas, prairie potholes, vernal
pools, kettles, pocosins, and bogs. Two commenters opposed the use of
indexed acreage limits.
We have fully considered comments concerning acreage limits for the
new and modified NWPs. To simplify the new and modified NWPs and ensure
that these NWPs still authorize only activities with minimal individual
and cumulative adverse effects on the aquatic environment, all of the
new NWPs, except for NWP 41, will have a \1/2\ acre limit. We have not
imposed a \1/2\ acre limit on NWP 41 because it only authorizes
activities that benefit the aquatic environment. The acreage limits for
specific NWPs are discussed in detail in the preamble discussions for
each NWP. Division engineers can regionally condition these NWPs to
lower acreage limits if there are specific concerns for the aquatic
environment in a particular part of the country. We do not agree that
there should be higher acreage limits on the NWPs for discharges of
dredged or fill material into ephemeral streams in the western states,
due to the national scope of the NWPs. However, Corps districts may
issue RGPs with larger acreage thresholds in any local situations where
they determine that the activity would result in no more than minimal
adverse effects, individually or cumulatively. Division engineers can
also regionally condition these NWPs to restrict or prohibit their use
in certain types of high value waters of the United States. We have
eliminated the indexed acreage limits from NWPs 39 and 40 because the
simple \1/2\ acre limit is a more effective way to ensure that these
NWPs authorize only activities with minimal adverse effects and the
vast majority of activities authorized by NWP 26 are below or slightly
above \1/2\ acre.
Many commenters indicated that the PCN thresholds for the new and
modified NWPs should be \1/3\ acre, instead of \1/4\ acre. These
commenters believe the difference between these two notification
thresholds is too small to provide any value and that the lower PCN
threshold will increase the Corps workload without providing any
benefits. One commenter recommended providing more consistency in PCN
thresholds for the NWPs. Several commenters stated that PCNs should be
[[Page 12826]]
required for all activities authorized by NWPs and one commenter
remarked that PCNs should be required for all discharges into special
aquatic sites. One commenter said that lower acreage limits for the
NWPs should result in fewer PCN requirements, not a lowering of PCN
thresholds.
To further ensure that the new NWPs authorize only activities with
minimal adverse effects on the aquatic environment, we have established
a \1/10\ acre PCN threshold for the new NWPs (except for NWP 41) and
retained the original PCN thresholds for impacts to open waters,
including streams. The notification threshold for NWP 14 has also been
lowered to \1/10\ acre. The \1/10\ acre PCN threshold will result in a
workload increase for Corps districts, but we believe that this
increase will be minor, since many permittees request written
verification of NWP authorizations, even when notification is not
required. We believe that the PCN thresholds in the new and modified
NWPs are consistent. There are circumstances, such as NWP 39 activities
that impact open waters, where we believe it is necessary to review all
proposed activities. However, we do not agree that is necessary to
require notification for all NWP activities because most minor
activities authorized by NWPs result in minimal adverse effects.
Division engineers can impose regional conditions on NWPs to lower PCN
thresholds in those geographic areas where there is the potential for
more than minimal adverse effects on the aquatic environment. We do not
agree that lower acreage limits should result in fewer PCN requirements
because the notification process is necessary to address activities
that might result in more than minimal adverse effects.
Several commenters suggested adding PCN requirements for discharges
into ephemeral streams, not just perennial and intermittent streams,
because ephemeral streams are important in arid regions. One commenter
recommended reducing the 500 linear foot PCN threshold for perennial
and intermittent stream impacts to 200 linear feet. One commenter said
that PCNs should be required for all discharges into open waters to
allow district engineers to determine appropriate vegetated buffer
requirements.
Except for those NWPs that require notification for all activities
or all discharges of dredged or fill material into open waters, we
believe that notification requirements for stream impacts should be
limited to perennial and intermittent streams, since discharges of
dredged or fill material into ephemeral streams are likely to result in
minimal adverse effects. In geographic areas where discharges of
dredged or fill material into ephemeral stream beds may result in more
than minimal adverse effects on the aquatic environment, division
engineers can regionally condition these NWPs to require notification
for these activities. For some of the new NWPs, we have replaced the
500 linear foot PCN threshold for stream bed impacts with a 300 linear
foot limit. Division engineers can impose regional conditions to
require a PCN threshold to address activities that may result in more
than minimal adverse effects. With the exception of NWP 39, we do not
agree that it is necessary to require notification for all discharges
of dredged or fill material into open waters to determine vegetated
buffer requirements. Vegetated buffers are not required for all
activities authorized by the NWPs. District engineers will determine on
a case-by-case basis when it is appropriate to require vegetated
buffers next to open waters.
Cumulative Impact Assessment and Data Collection
Many commenters objected to the Corps position stated in the July
21, 1999, Federal Register notice that the Corps can monitor only those
cumulative adverse effects on the aquatic environment that result from
activities permitted by the Corps regulatory program. Some of these
commenters said that this position is contrary to the Clean Water Act
and recommended that the Corps utilize the definition of cumulative
impacts found in the regulations for the National Environment Policy
Act (NEPA). Numerous commenters asserted that cumulative impact
analysis should include both regulated and unregulated losses of
aquatic habitat within a geographic area. One commenter said that
cumulative impact analysis should include all activities that affect
water quality. Two commenters objected to the Corps statement in the
July 21, 1999, Federal Register notice that district engineers must
have 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 more than minimal cumulative
adverse effects on the aquatic environment, not unregulated activities,
before revoking or suspending the use of NWPs. One commenter stated
that cumulative impact assessment should consider temporary and
permanent losses of waters of the United States in a different manner.
This commenter also remarked that the cumulative impact assessment must
also consider both losses of waters of the United States and
compensatory mitigation to determine the net cumulative adverse effects
on the aquatic environment.
The Corps position in the July 21, 1999, Federal Register notice
concerning cumulative impact assessment is based on the statutory
requirements of Section 404(e) of the Clean Water Act. There are no
other references to cumulative adverse effects in Section 404 of the
Clean Water Act. The requirement for authorized activities to cause no
more than minimal adverse effects on the aquatic environment applies
only to general permits (including NWPs), not the entire Corps
regulatory program. This position is also supported by the regulations
for implementing the Section 404(b)(1) guidelines at 40 CFR 230.7.
These regulations state that activities authorized by general permits
can result only in minimal adverse effects on water quality and the
aquatic environment (see 40 CFR 230.7(a)(3)).
The Corps scope of analysis for the purposes of NEPA is discussed
in 33 CFR part 325, appendix B. The Corps can only address the impacts
of the specific activity that requires a Department of the Army permit
and those portions of the activity over which the district engineer has
sufficient control and responsibility to warrant Federal review.
The Corps does provide different consideration to temporary and
permanent losses of waters of the United States when assessing the
adverse effects of regulated activities on the aquatic environment. As
discussed in the NWP definition of ``loss of waters of the United
States,'' waters of the United States that are temporarily filled,
flooded, excavated, or drained, but restored after construction, are
not included in the measurement of loss of waters of the United States.
Therefore, temporary losses would not be included in the Corps
cumulative impact assessment since the affected areas would be restored
as waters of the United States. When assessing cumulative adverse
effects on the aquatic environment, the Corps also considers
compensatory mitigation for losses authorized by NWPs, because
compensatory mitigation is often required to offset losses of waters of
the United States and ensure that the activities authorized by NWPs
have minimal adverse effects. Corps districts assess cumulative impacts
on a watershed basis. Attempting to assess cumulative impacts across
the nation is not possible, or appropriate.
[[Page 12827]]
Two commenters supported the Corps assertion that cumulative
impacts must be assessed on a watershed basis. One of these commenters
said that watersheds should be defined by the 8-digit watershed
cataloging units designated by the U.S. Geological Survey (USGS). Two
commenters requested that the Corps develop a method to quantify
potential cumulative and indirect impacts that will result from
activities authorized by NWPs in a watershed. Two commenters said that
district engineers must demonstrate that the use of NWPs in a watershed
or geographic area will not result in more than minimal adverse effects
on the aquatic environment.
As discussed in the July 1, 1998, Federal Register notice, the
Corps utilizes the 8-digit hydrological unit codes developed by USGS to
identify watersheds for its data collection process. However, district
engineers can utilize subwatersheds within these hydrological units
when conducting cumulative impact assessments. The Corps does not have
the resources to develop a method to quantify potential cumulative and
indirect impacts that may result from activities authorized by NWPs. If
the division or district engineer determines that the use of NWPs to
authorize activities within a particular watershed or geographic area
will result in more than minimal individual or cumulative effects on
the aquatic environment, then he or she can modify, suspend, or revoke
those NWPs in that area (see 33 CFR 330.4). This is a determination
that must be made by districts as they administer the Corps regulatory
program in specific geographic areas.
Two commenters said that the Corps should analyze the cumulative
impacts of the current NWPs and any NWPs that will be proposed in the
future before issuing the new and modified NWPs. These commenters
recommended that this analysis consider the efficiency of compensatory
mitigation. Two commenters objected to the Corps assertion that it
cannot make the individual and cumulative adverse effects determination
nationally.
When the Corps issues or modifies an NWP, an environmental
assessment, a finding of no significant impact (FONSI), and if
necessary, an evaluation of compliance with the Section 404(b)(1)
guidelines is prepared for each NWP. These items are contained in one
document. This document includes an analysis of the cumulative impacts
that are expected to occur during the time the NWP is in effect. This
analysis also includes estimates of the amount of compensatory
mitigation that will be required to offset losses of waters of the
United States authorized by the NWP. We maintain our position that an
assessment of cumulative adverse effects that result from the use of
the NWPs cannot be made at the national level, and that the only
technically sound method to conduct this assessment is on a watershed
basis, through the district offices. Concurrent with the issuance of
the new and modified NWPs and the final decision documents for each of
the new and modified NWPs, division engineers will issue supplementary
decision documents that address the impacts of the NWPs in Corps
districts.
Several commenters said that Corps record-keeping methods are
inadequate and that the Corps should issue quarterly public reports on
wetland losses and the status of compensatory mitigation. A number of
commenters recommended that the Corps establish a data collection
system that tracks various types of compensatory mitigation (i.e.,
creation, restoration, enhancement, preservation) and monitors
compliance with the goal of no net loss. Numerous commenters indicated
that the Corps needs to commit to stronger monitoring and enforcement
efforts.
We do not have the resources to publish quarterly reports on
impacts to waters of the United States and compensatory mitigation at
this time. 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 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 for
all activities. We are committed to strong enforcement and monitoring
efforts, but enforcement and compliance efforts are limited to
available district resources. The Corps permit evaluation workload must
take precedence over enforcement and monitoring.
Compliance with the National Environmental Policy Act
Several commenters stated that the proposed NWPs require an
Environmental Impact Statement (EIS). Two commenters objected to the
Corps statement in the July 21, 1999, Federal Register notice that the
NWP program does not require an EIS because the NWPs can only authorize
activities with minimal individual and cumulative adverse effects on
the aquatic environment.
We maintain our position that the NWPs do not require an EIS, but
we are in the process of preparing a Programmatic Environmental Impact
Statement (PEIS) for the NWP program.
A number of commenters indicated that the Corps needs to reevaluate
the Finding of No Significant Impact (FONSI) issued on June 23, 1998,
since the draft NWPs are substantially different from the NWPs proposed
in the July 1, 1998, Federal Register notice. These commenters said
that the three proposed new general conditions warrant reevaluation of
the FONSI.
We do not agree that the FONSI issued on June 23, 1998, requires
revision. The FONSI issued on June 23, 1998, was a general statement of
findings for the NWP program. That FONSI did not address a specific set
of NWPs. The three proposed new general conditions are intended to
provide additional protection to the aquatic environment and their
implementation would not substantially change the scope of the FONSI
issued on June 23, 1998, or its findings.
Two commenters said that the Corps should release or issue the
Environmental Assessments (EAs) for the new and modified NWPs before
those permits are issued so that the public can comment on those EAs.
These commenters stated that the EAs should also include regional
analyses in addition to the national analyses. One of these commenters
indicated that the EAs should contain analyses of potential impacts on
recreation, wildlife habitat, endangered species, cultural resources,
land use, and habitat degradation, as well as address cumulative
impacts that occur when an NWP is used with other NWPs. Another
commenter requested that the EAs assess the expansion of geographic
scope of the new NWPs, the amount of cumulative and individual impacts
that may be authorized by these NWPs, the types of waters that may be
adversely affected by the new and modified NWPs, and the functions of
those waters. Other commenters objected to the preliminary EAs, stating
that those EAs did not include an ecological rationale for the proposed
acreage limits.
We do not agree that it was necessary to issue new preliminary EAs
for the draft NWPs proposed in the July 21, 1999, Federal Register
notice. We received few comments in response to the preliminary EAs
that were issued with the July 1, 1998, Federal Register
[[Page 12828]]
notice. Those individuals that commented on the preliminary EAs
requested that the Corps include an alternatives analysis in each EA.
We have included an alternatives analysis in each EA for the new and
modified NWPs. The EAs for the new and modified NWPs issued today
discuss, in general terms, the acreage limits for these NWPs, the types
of waters subject to the new and modified NWPs, and the functions of
those waters. The EAs also include projected impacts to waters of the
United States that will occur through the use of these NWPs. Since
aquatic resource functions and values vary considerably across the
country, we cannot include detailed ecological analyses to support the
acreage limits for these NWPs. However, division engineers will be
issuing supplemental EAs that will address issues at the district
level.
The final EAs for the new and modified NWPs have been substantially
modified from the preliminary EAs issued in conjunction with the July
1, 1998, Federal Register notice. The final EAs contain general
discussions of potential individual and cumulative impacts to the 20
public interest review factors at 33 CFR 320.4 and the factors in
Subparts C through F of the Section 404(b)(1) guidelines (40 CFR Part
230).
In response to the July 21, 1999, Federal Register notice, some
commenters addressed the Programmatic Environmental Impact Statement
(PEIS) of the NWP program that the Corps is preparing. One commenter
supported the PEIS, but asserted that an EIS is required. Another
commenter stated that the PEIS is unwarranted and unnecessary. Many
commenters said that the Corps cannot finalize the NWPs before the PEIS
is completed.
These issues concerning the PEIS were addressed in the July 21,
1999, Federal Register notice (see 64 FR 39265) and we have not changed
our position.
Compliance with the Endangered Species Act
Two commenters stated that the proposed NWPs require Endangered
Species Act (ESA) Section 7 consultation. Three commenters asserted
that the proposed new and modified NWPs do not comply with ESA. One of
these commenters said that the Corps does not adequately address the
direct, secondary, and cumulative impacts on endangered and threatened
species that will result from activities authorized by the NWPs. This
commenter also stated that the Corps cannot rely on prospective
permittees to conduct adequate investigations to determine whether
endangered or threatened species or designated critical habitat occur
on the project site. Three commenters indicated that compliance with
ESA cannot be ensured for activities that do not require notification
to the district engineer.
We have requested programmatic ESA consultation for the NWP
program. We contend that the new and modified NWPs, through the
requirements of General Condition 11, comply with ESA. We use the ESA
interagency consultation regulations at 50 CFR Part 402 when
determining compliance with ESA. Scope of analysis issues for ESA will
be resolved through consultation with the U.S. Fish and Wildlife
Service (FWS) and the National Marine Fisheries Service (NMFS). General
Condition 11 requires non-Federal permittees to notify the district
engineer if any listed species or designated critical habitat might be
affected or is in the vicinity of the project. The permittee shall 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.
Three commenters asserted that the Corps cannot issue the new and
modified NWPs prior to completing programmatic ESA consultation. One
commenter stated that programmatic ESA consultation does not obviate
the need for regional and site-specific consultation. One commenter
said that since Standard Local Operating Procedures for Endangered
Species (SLOPES) have not yet been completed, the Corps cannot rely on
SLOPES to ensure compliance with ESA. One commenter suggested that
SLOPES should be developed for all issued NWPs.
We can issue the NWPs prior to the completion of the NWP
programmatic ESA consultation, because issuance of the NWPs has not
foreclosed opportunities to address endangered species and the NWPs
already contain safeguards to ensure compliance with ESA. The
programmatic consultation will provide additional assurance that the
existing NWPs, as well as the new and modified NWPs issued today, 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, or destroy or
adversely modify the critical habitat of such species. Both the
programmatic ESA consultation and the PEIS will address potential
cumulative effects on endangered and threatened species and their
designated critical habitat regarding the NWP program. We maintain that
the SLOPES help ensure compliance with the ESA at the district level.
Districts can meet with local offices of the FWS and NMFS at any time
to modify or improve their SLOPES. Districts will enter case-specific
consultation in any case where the district determines the proposed
project may affect a threatened or endangered species.
In addition to NWP General Condition 11, division and district
engineers have imposed and can impose additional regional conditions on
the NWPs and case-specific special 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 for specific geographic areas. Also, Corps districts have
and will conduct case-specific Section 7 consultation for endangered
species. 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 ESA.
Stream Impacts
Many commenters objected to the proposed NWPs, stating that
thousands of feet of stream bed could be channelized or filled under
these NWPs. These commenters said that linear foot limits for stream
bed impacts should be imposed on the NWPs instead of acreage limits. A
large number of commenters recommended adding a 250 linear foot limit
for stream bed impacts to the new and modified NWPs. Other commenters
suggested linear stream bed impact limits of 200, 100, and 50 linear
feet. A few commenters said that the NWPs should not authorize any
stream impacts. Another commenter requested clarification regarding the
PCN thresholds for linear feet of stream bed impacts, asking if the
flooded area is included with the filled area.
After consideration of these comments, we have decided to impose on
NWPs 39, 40, 42, and 43, a 300 linear foot limit for filling or
excavation activities in stream beds. This 300 linear foot limit
applies only to stream beds that normally have flowing water.
[[Page 12829]]
Division engineers can regionally condition the NWPs to lower the 300
linear foot limit for stream bed impacts, impose linear foot limits for
stream bed impacts on other NWPs, or establish lower PCN thresholds for
filling or excavating stream beds.
Several commenters stated that all Corps districts must use the
same method to determine where the average annual flow of a stream is 1
cfs. One of these commenters recommended using drainage area as a
substitute. Another commenter suggested that the guidance in the
preamble to the final rule for the NWP regulations (33 CFR part 330)
published in the November 22, 1991, Federal Register (56 FR 59112)
should be used to establish where the 1 cfs point of a stream is
located. That guidance described how to determine the geographic
location of the limit of headwaters for perennial, intermittent, and
ephemeral streams.
District engineers will utilize the best methods available to
identify where the average annual flow of a stream is 1 cfs. Although
the guidance published in the November 22, 1991, Federal Register was
intended to assist district engineers and the regulated public in
identifying the geographic location of headwaters (i.e., where the
average annual flow is less than 5 cfs), this guidance can also be used
to locate the 1 cfs point on a stream. District engineers can utilize
the median flow, rather than the average flow, to establish where the 1
cfs point on a stream is located. This approach recognizes that streams
with highly irregular flows, such as those occurring in the western
portion of the United States, could be dry at the 1 cfs point for most
of the year and still average, on an annual basis, a flow of 1 cfs
because of high volume, flash flood type flows which greatly distort
the average. Furthermore, we recognize that using the median flow for
an entire year in streams that have no stream flow for over half the
year but with flows greater than 1 cfs for several months would also
distort the average. It should also be noted that precision is not
required in establishing the 1 cfs point. The definition allows the
district engineer to use approximate means to compute it. The drainage
area that will contribute an average annual flow of 1 cfs can be
estimated by approximating the proportion of average annual
precipitation that is expected to find its way into the stream. Knowing
the amount of area that will produce this flow in a particular region,
the 1 cfs point can be approximated from drainage area maps. For
example, in most areas of the eastern United States (i.e., east of the
Mississippi River), one square mile of drainage area produces 1 cfs of
stream flow annually.
Applicable Waters for the New and Modified Nationwide Permits
A number of commenters objected to the increased scope of waters in
which the proposed NWPs published in the July 21, 1999, Federal
Register could be used. One commenter stated that the NWPs should be
used only in headwaters and isolated waters. Two commenters supported
the use of the new and modified NWPs in non-tidal waters. Three
commenters objected to prohibiting the use of the new and modified NWPs
in tidal waters and non-tidal wetlands adjacent to tidal waters. One
commenter stated that the Corps has not provided justification for
excluding the new and modified NWPs from non-tidal wetlands that are
adjacent to tidal waters and recommended that the Corps utilize the
term ``contiguous'' instead of ``adjacent.''
We contend that limiting the new NWPs to non-tidal waters, except
for non-tidal wetlands adjacent to tidal waters, provides adequate
protection of the aquatic environment and helps ensure that these NWPs
authorize only activities with minimal adverse effects. Regional
conditioning of the new and modified NWPs by division engineers will
provide additional protection by restricting or prohibiting the use of
the new and modified NWPs in high value waters. General Condition 25
will also protect high value waters. General Condition 26 does not
allow permanent, above-grade fills in the 100-year floodplain
downstream of the headwaters.
We do not agree that the new and modified NWPs should be used in
tidal waters or non-tidal wetlands adjacent to tidal waters. We have
identified tidal waters as high value waters on a national basis. Non-
tidal wetlands adjacent to tidal waters contribute to the ecological
integrity of tidal waters and should not be subject to the new and
modified NWPs. District engineers can develop regional general permits
for discharges into non-tidal waters adjacent to tidal waters, if such
regional general permits are needed for activities that result in
minimal adverse effects on the aquatic environment, individually or
cumulatively.
One commenter requested that the Corps define the term ``adjacent''
for the purposes of the new and modified NWPs. One commenter stated
that the definition of the term ``adjacent'' at 33 CFR 328.3(c) is
confusing for use in the NWP program and that the Corps needs to
provide a definition that is easily understandable by the regulated
public. This commenter also said that the NWPs should be limited to
only those non-tidal wetlands that are both adjacent to and inundated
by spring tides; wetlands landward of the mean high tide line would be
considered as non-tidal wetlands adjacent to tidal waters and wetlands
landward of the spring high tide line would not be considered adjacent
to tidal waters. Two commenters asked the Corps to provide a clear
explanation of the upstream limit of non-tidal wetlands adjacent to
tidal waters and whether non-tidal wetlands miles upstream of tidal
waters would be considered adjacent to those tidal waters.
For the new and modified NWPs, the definition of the term
``adjacent'' at 33 CFR 328.3(c) will be used. Since aquatic systems
vary considerably across the country, we cannot establish more specific
criteria at a national level to further define adjacency. District
engineers will make appropriate determinations of adjacency, based on
regional hydrologic conditions.
Wetlands located between mean high water and the spring high tide
line are tidal wetlands because they are inundated by tidal waters (see
33 CFR 328.4(b)(1)). Non-tidal wetlands that are bordering, contiguous,
or neighboring to tidal waters are considered adjacent to those tidal
waters. The upstream limit of non-tidal wetlands adjacent to tidal
waters is determined by the degree of influence of the tidal waterbody
on non-tidal wetlands. Those non-tidal wetlands that exert direct
hydrologic influence on tidal waters are considered adjacent to those
tidal waters. For the purposes of the NWPs, non-tidal streams located
upstream of the head of tide are not considered adjacent to tidal
waters, although those streams eventually flow into tidal waters and
are part of the surface tributary system. Wetlands adjacent to non-
tidal streams are within the scope of waters for the new and modified
NWPs.
One commenter stated that the new and modified NWPs should not
authorize discharges into prairie potholes, playa lakes, or vernal
pools. Another commenter said that the NWPs should not be used in rare
and irreplaceable wetlands.
We do not agree that the new and modified NWPs should be subject to
a national prohibition against discharges of dredged or fill material
into prairie potholes, playa lakes, or vernal pools. Rare and
irreplaceable wetlands have not been formally defined. General
Condition 25 restricts activities in designated critical resource
waters. Further, division engineers can
[[Page 12830]]
regionally condition these NWPs to restrict or prohibit discharges into
high value waters. For those activities that require notification,
district engineers can exercise discretionary authority if the proposed
work will result in more than minimal adverse effects on the aquatic
environment.
Mitigation
A large number of commenters specifically addressed the
compensatory mitigation requirements of the proposed new and modified
NWPs. One commenter said that the goal of compensatory mitigation is
not clearly defined in the proposed NWPs. Several commenters requested
that the Corps clarify when compensatory mitigation is required for
activities authorized by NWP. These commenters said that there are some
inconsistencies concerning compensatory mitigation requirements in the
July 21, 1999, Federal Register notice. Two of these commenters
referred to Corps statements in the July 21, 1999, Federal Register
notice that: (1) Compensatory mitigation will normally be required for
activities that require notification and, (2) in some circumstances,
compensatory mitigation may be unnecessary because the adverse effects
on the aquatic environment are minimal without mitigation.
For the NWP program, including the new and modified NWPs, the
purpose of compensatory mitigation is to ensure that the authorized
work results in minimal adverse effects on the aquatic environment. For
those activities that require notification to the district engineer,
compensatory mitigation may be necessary to ensure that the authorized
work results in minimal adverse effects on the aquatic environment.
District engineers will determine, on a case-by-case basis, when
compensatory mitigation is not practicable. Our use of the word
``normally'' when referring to compensatory mitigation for NWP
activities allows district engineers flexibility in determining when
compensatory mitigation will be required and lets the regulated public
know that compensatory mitigation is likely to be required for impacts
that exceed PCN thresholds, except under circumstances where the
adverse effects are minimal without compensatory mitigation. Activities
that do not require notification are presumed to result in minimal
adverse effects and do not require compensatory mitigation to ensure
minimal adverse effects. Division engineers can regionally condition an
NWP to lower the notification threshold to allow district engineers to
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.
Many commenters opposed the use of compensatory mitigation to
ensure that activities authorized by NWPs result in minimal adverse
effects on the aquatic environment. Several commenters supported the
use of compensatory mitigation to ensure that authorized activities
result in minimal adverse effects. One of these commenters said that
compensatory mitigation should not be required simply to meet a ``no
net loss'' of wetland acreage goal. One commenter indicated that
compensatory mitigation should not be required for activities
authorized by NWP because NWPs can only authorize activities with
minimal adverse effects.
Compensatory mitigation is often necessary to offset losses of
waters of the United States and ensure that the authorized activity
results in minimal adverse effects on the aquatic environment. The NWP
regulations at 33 CFR 330.1(e)(3) allow permittees to provide
compensatory mitigation to reduce the adverse effects of the proposed
work to the minimal level. In the July 21, 1999, Federal Register
notice, we stated that for the purposes of the NWP program,
compensatory mitigation is required 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. NWP compensatory mitigation requirements are
not driven by the ``no net loss'' goal, but will help support that
goal. A district engineer can determine, for an activity that requires
notification, that compensatory mitigation is not practicable.
Two commenters said that compensatory mitigation should be required
only for impacts to waters of the United States. Another commenter
stated that the Corps is proposing to require mitigation for activities
not subject to its regulatory authority, such as flooding, excavation,
and drainage activities. One commenter indicated that the July 21,
1999, Federal Register notice requires compensatory mitigation for non-
wetland impacts. One commenter remarked that compensatory mitigation
for wetland or stream losses should be subject to a public notice
process because mitigation is being used to avoid significant impacts.
Compensatory mitigation may be required by district engineers to
offset losses of waters of the United States to ensure that the
authorized work results in minimal adverse effects on the aquatic
environment. Although district engineers may require out-of-kind
compensatory mitigation, such as the restoration of upland riparian
zones, to compensate for losses of the functions and values of waters
of the United States, compensatory mitigation is required only to
offset losses of waters of the United States. District engineers can
require compensatory mitigation for losses of aquatic resource
functions and values caused by flooding, excavation, and drainage
caused by activities that are associated with activities that are
regulated by the Corps (i.e., discharges of dredged or fill material).
However, if the activity does not involve work in navigable waters of
the United States or a discharge of dredged or fill material into
waters of the United States, compensatory mitigation cannot be required
because no Corps permit is necessary to conduct the activity. We do not
agree that a public notice process is required for compensatory
mitigation projects.
Several commenters stated that the mitigation requirements
discussed in the July 21, 1999, Federal Register notice do not
adequately protect wetlands. Numerous commenters said that the NWPs
should be conditioned to require a full alternatives analysis. Many
commenters requested that the Corps condition all NWPs to require
project proponents to avoid impacts to the maximum extent practicable
and implement compensatory mitigation that fully replaces all losses of
wetland acreage and functions. One commenter objected to including
minimization as a form of mitigation. Two commenters asserted that the
NWPs should be subject to the mitigation requirements of the 1990
mitigation Memorandum of Agreement (MOA), including sequencing
requirements.
The mitigation requirements of the new and modified NWPs adequately
protect wetlands. General Condition 19 requires permittees to avoid and
minimize discharges into waters of the United States on-site to the
maximum extent practicable. General Condition 19 also states that
district engineers can require compensatory mitigation to ensure that
the authorized work results in minimal adverse effects on the aquatic
environment. The use of minimization as mitigation is well established
in Federal regulations (see the Council on Environmental Quality's
regulations at 40 CFR 1508.20). The avoidance provisions of the 1990
mitigation MOA apply only to standard individual permits, not
activities authorized by NWPs.
One commenter stated that some of the new NWPs (e.g., NWPs 39 and
43)
[[Page 12831]]
require compensatory mitigation without requiring submission of a
notification to the district engineer. This commenter said that
compensatory mitigation should not be required unless the district
engineer reviews the PCN and determines that compensatory mitigation is
necessary to offset authorized losses of waters of the United States.
One commenter objected to requiring compensatory mitigation for
activities that require notification, but another commenter supported
this requirement. Two commenters objected to allowing district
engineers to make the final determination whether compensatory
mitigation is required.
Compensatory mitigation is not required for NWP activities that do
not require notification to the district engineer. Division engineers
can regionally condition NWPs to lower PCN thresholds or require
notification for all activities, if such PCN thresholds are necessary
to allow district engineers to require compensatory mitigation to
ensure that adverse effects to the aquatic environment are minimal. We
believe that it is appropriate for district engineers to make the final
decisions whether compensatory mitigation is necessary to ensure that
activities authorized by NWPs result in minimal adverse effects.
A large number of commenters recommended that the Corps require
acre-for-acre wetland restoration as compensatory mitigation for all
activities resulting in the loss of greater than \1/4\ acre of
wetlands. Other commenters suggested \1/2\, \1/3\, and 1 acre
thresholds for requiring compensatory mitigation. Many commenters said
that a minimum 1:1 mitigation ratio should be required for all losses
of waters of the United States authorized by NWPs. Other commenters
recommended higher mitigation ratios. One commenter said that the Corps
should provide compensatory mitigation guidelines that addresses site
selection and design, options for compensatory mitigation, and a
description of success criteria and monitoring requirements.
While final specific compensatory mitigation requirements, such as
replacement ratios, are determined by district engineers on a case-by-
case basis, we agree that there should be a minimum requirement of an
acre-for-acre (1:1) wetland replacement as compensatory mitigation for
all activities requiring notification. The Corps can require
compensatory mitigation in excess of a 1:1 ratio of impact acreage to
compensatory mitigation acreage to adequately replace aquatic resource
functions and values that are lost as a result of activities authorized
by NWPs. The Corps can also accept out-of-kind compensatory mitigation,
if it is best for the aquatic environment. Existing policy and guidance
for compensatory mitigation provides a preference for on-site and in-
kind replacement of the functions and values of the impacted aquatic
resource. If on-site compensatory mitigation is not practicable, off-
site compensatory mitigation should be undertaken in the same
geographic area if practicable, (i.e., in close proximity and, to the
extent possible, the same watershed) or environmentally preferable. The
Corps can also accept out-of-kind compensatory mitigation, if it is
best for the aquatic environment.
Many commenters stated that the Corps should require in-kind, on-
site replacement of wetlands. Several commenters supported the
utilization of off-site, out-of-kind compensatory mitigation for losses
of waters of the United States authorized by NWPs. These commenters
also supported the Corps position that the appropriate compensatory
mitigation required for activities authorized by NWPs should be based
on what is best for the aquatic environment. One commenter remarked
that the selected mitigation method should best replace site-specific
functions and values of the impacted aquatic habitat. One commenter
supported the use of out-of-kind compensatory mitigation, such as the
establishment and maintenance of vegetated buffers next to streams, and
stream restoration, and the preservation of wetland/upland complexes.
When reviewing compensatory mitigation proposals, district
engineers will consider what is best for the aquatic environment,
including requirements for vegetated buffers next to perennial and
intermittent streams and other open waters. Wetland restoration,
enhancement, creation, and, only in exceptional circumstances,
preservation are not the only methods of providing compensatory
mitigation for activities authorized by NWPs. Stream restoration and
enhancement, including the restoration or preservation of riparian
zones, can also provide compensatory mitigation for losses resulting
from activities authorized by NWPs. The establishment and maintenance
of vegetated buffers next to streams and other open waters as
compensatory mitigation for losses of waters of the United States
authorized by NWPs are discussed in the next section of this notice.
Many commenters opposed the Corps preference for the use of
mitigation banks and in lieu fee programs to provide compensatory
mitigation for losses of waters of the United States authorized by
NWPs. A number of other commenters supported the Corps preference for
consolidated compensatory mitigation methods. One commenter indicated
that the preference for consolidated compensatory mitigation methods
should not be limited to mitigation banks. One commenter expressed some
support for using mitigation banks and other consolidated mitigation
methods as alternatives for on-site compensatory mitigation because of
the uncertainty for success in some individual compensatory mitigation
projects. This commenter also recommended developing guidance for in
lieu fee programs and other consolidated mitigation methods before
allowing widespread use of these methods. Another commenter recommended
that the text of the NWPs and the preamble to the notice announcing the
issuance of the NWPs refer to the Federal guidance for compensatory
mitigation, especially for the use of mitigation banks and in lieu fee
programs. Two commenters indicated that in lieu fee programs should not
be considered as compensatory mitigation until guidance has been
developed for these programs. One commenter objected to the use of in
lieu fee programs to provide compensatory mitigation because the
commenter asserts that these programs are not subject to agency and
public review and do not ensure compliance with the goal of no net
loss.
Consolidated compensatory mitigation methods, including mitigation
banks, are often an efficient means of compensating for losses of
waters of the United States, particularly for multiple small
activities. We recognize that consolidated compensatory mitigation
methods are often more practicable and successful because of the
planning and implementation efforts typically expended on these
activities by their proponents. 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 larger contiguous wetland areas that
benefit the overall local aquatic environment and many of the species
that utilize larger aquatic habitats.
One commenter stated that where mitigation banks and in lieu fee
programs are in the same watershed, preference should be given to using
the mitigation bank since mitigation banks subject to more stringent
requirements
[[Page 12832]]
and more likely to be successful. Two commenters said that mitigation
banks should be located in the same watershed as the site of the NWP
activity. One commenter said that in lieu fee programs should not be
used as compensatory mitigation for activities that result in the loss
of greater than \1/10\ acre of waters of the United States.
Where practicable, mitigation banks and other consolidated
mitigation methods should be located in the same watershed as the site
of the activity authorized by NWP. District engineers have the
authority to approve or disapprove the use of specific mitigation
approaches 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. We do
not agree that there should be an acreage limit that would preclude the
use of any particular type of mitigation to provide compensatory
mitigation for losses of waters of the United States authorized by
NWPs.
Several commenters stated that the preservation of high value
wetlands should be encouraged as a form of compensatory mitigation. A
number of commenters objected to the use of preservation as
compensatory mitigation, unless one-to-one replacement of aquatic
habitats has been achieved. One commenter objected to the use of
enhancement unless one-to-one replacement of wetlands has been
accomplished.
We concur that the preservation of high value wetlands is one
appropriate method of compensatory mitigation for losses of waters of
the United States, but only in exceptional circumstances. Preservation
of aquatic habitats should be done in conjunction with aquatic habitat
restoration, creation, or enhancement to offset losses of waters of the
United States. The amount of preservation or enhancement that will be
accepted as compensatory mitigation for impacts authorized by NWPs will
be determined by district engineers on a case-by-case basis.
To further clarify the issue of mitigation, we have removed some of
the mitigation information from General Condition 13 and consolidated
the mitigation requirements for the NWPs in General Condition 19.
Vegetated Buffers
In the July 21, 1999, Federal Register notice, we proposed to
require the establishment and maintenance of vegetated buffers adjacent
to waters of the United States as an alternative form of compensatory
mitigation to ensure that activities authorized by NWPs result in
minimal adverse effects on the aquatic environment. The vegetated
buffer requirement was in the draft NWP 39 and the proposed
modifications to General Conditions 13 and 19.
As a result of our review of the comments received in response to
the July 21, 1999, Federal Register notice, we have made several
changes to the vegetated buffer requirements for the NWPs. For example,
vegetated buffers are required only if there are perennial or
intermittent streams or other open waters on the project site.
Vegetated buffers will be established and maintained on the uplands or
wetlands next to the open waters. For the purposes of the NWPs,
vegetated buffers are not required next to ephemeral streams or
wetlands. The use of vegetated buffers as mitigation for NWP activities
is discussed in General Condition 19. The changes to the vegetated
buffer requirements are discussed in more detail below.
Many commenters supported the vegetated buffer requirements for the
new and modified NWPs. A number of commenters stated that vegetated
buffers should not be a condition of an NWP authorization. These
commenters said that vegetated buffers should be considered only when a
landowner voluntarily agrees to establish and maintain vegetated
buffers adjacent to waters of the United States as an alternative form
of compensatory mitigation. Several commenters contend that
compensatory mitigation sites should be protected by vegetated buffers.
Another commenter stated that the use of upland buffers should be
consistent with current Federal guidance, particularly the ``Federal
Guidance for the Establishment, Use and Operation of Mitigation Banks''
(60 FR 58605). A commenter stated that the vegetated buffer requirement
should not apply to all activities that require a Corps permit, such as
piers.
Vegetated buffers will be required only when there are open waters,
such as perennial or intermittent streams, on the project site, and the
NWP activity involves discharges of dredged or fill material into
waters of the United States. However, a required vegetated buffer could
be established off-site for impacts on the project site. Project
proponents will not be required to establish and maintain vegetated
buffers next to ephemeral streams. Vegetated buffers are not normally
required for activities that require only Section 10 permits, but
district engineers can require vegetated buffers as compensatory
mitigation for activities authorized by Section 10 permits, if such
compensatory mitigation is appropriate. District engineers will
determine, on a case-by-case basis, whether or not vegetated buffers
are required. Vegetated buffers are required only when it is
practicable for the permittee to establish these areas and the
vegetated buffer will be self-maintaining, other than restrictions on
cutting or removal of the buffer. If the permittee does not own the
land next to the open waters, then vegetated buffers are not required
unless the permittee can reasonably obtain the appropriate conservation
easements for those buffers.
Compensatory mitigation sites can be protected by vegetated
buffers, but we do not agree that this should be a requirement of the
NWP program. However, providing a buffer to the restored waters of the
United States in a mitigation bank is precisely why a good mitigation
bank will have a matrix of waters and uplands for maximum ecological
functions and values. The ``Federal Guidance for the Establishment, Use
and Operation of Mitigation Banks'' does not contain any useful
guidance concerning the establishment and maintenance of vegetated
buffers next to open waters. During the revision of the vegetated
buffer requirements for the NWPs, we considered the riparian forest
buffer Conservation Practice Standard (Code 391A) issued by NRCS in
July 1997. We also considered the information in the document entitled
``Riparian Forest Buffers: Function and Design for Protection and
Enhancement of Water Resources'' published by the Forest Service.
A large number of commenters opposed the vegetated buffer
requirement. Those in opposition to this requirement were divided into
two groups. One group objected to vegetated buffers as compensatory
mitigation for discharges of dredged or fill material into wetlands
because they believe that wetland losses should be compensated only
through wetland restoration, creation, or enhancement. The other group
of commenters stated that the Corps does not have the regulatory or
statutory authority to require vegetated buffers adjacent to waters of
the United States.
Those commenters that oppose the use of vegetated buffers as
[[Page 12833]]
compensatory mitigation for losses of wetlands indicated that vegetated
buffers adjacent to waters of the United States do not replace the lost
functions that would be provided by wetland restoration or creation.
Many of these commenters said that vegetated buffers next to open
waters and streams do not provide flood storage capacity, wildlife
habitat, water quality, or groundwater recharge functions. Numerous
commenters stated that using vegetated buffers as compensatory
mitigation will not help the Administration achieve its goal of a net
gain of 100,000 acres of wetlands per year. Other commenters indicated
that vegetated buffers as compensatory mitigation is contrary to the
``no net loss'' goal. One commenter said that the use of vegetated
buffers is contrary to the 1990 mitigation MOA.
Vegetated buffers next to streams and other open waters on the
project site are an important type of compensatory mitigation that
provides substantial aquatic habitat, water quality, and flood storage
benefits. The establishment and maintenance of vegetated buffers may be
a preferable form of compensatory mitigation because it may be
infeasible to create or restore wetlands on the project site after the
activity is built. Vegetated buffers, even if they are established on
uplands next to streams and other open waters, would provide on-site
aquatic habitat, water quality, and flood storage functions.
Vegetated buffers next to streams and other open waters provide
many of the same functions that wetlands provide. In fact, many
vegetated buffers will be wetlands. Due to their proximity to open
waters, vegetated buffers are more effective at protecting open waters
than wetlands distant from those open waters. We have refined the
following list of the functions of vegetated buffers from the list of
functions published in the July 21, 1999, Federal Register notice. In
general, vegetated buffers next to streams and open waters provide the
following functions: (1) Reduce adverse effects to water quality by
removing nutrients and pollutants from surface runoff; (2) reduce
concentrations of nutrients and pollutants in subsurface water that
flows into streams and other open waters; (3) moderate storm flows to
streams, which reduces downstream flooding and degradation of aquatic
habitat; (4) stabilize soil (through plant roots), which reduces
erosion in the vicinity of the open waterbody; (5) provide shade to the
waterbody, which moderates water temperature changes and provides a
more stable aquatic habitat for fish and other aquatic organisms; (6)
provide detritus, which is a food source for many aquatic organisms;
(7) provide large woody debris from riparian zones, which furnishes
cover and habitat for aquatic organisms and may cause the formation of
pools in the stream channel; (8) provide habitat to a wide variety of
aquatic and terrestrial species; (9) trap sediments, thereby reducing
degradation of the substrate that provides habitat for fish and other
aquatic organisms (e.g., some fish species depend upon gravel stream
beds for spawning habitats); and (10) provide corridors for movement
and dispersal of many species of wildlife. In addition, vegetated
buffers next to streams provide flood storage capacity and groundwater
recharge functions.
Although we are requiring the establishment and maintenance of
vegetated buffers in uplands next to open waters as compensatory
mitigation for certain activities, we expect to continue our documented
programmatic no net loss of wetlands approach to the regulatory
program. For most activities authorized by NWPs, vegetated buffers will
only be a portion of the required compensatory mitigation. Moreover,
where the project involves filling wetlands, vegetated buffers will
only be required after a 1:1 ratio based on acreage of wetland
mitigation has been required. Only \1/3\ of the additional mitigation
required for the project may be non-wetland vegetated buffers. The
vegetated buffer requirement for the NWPs is not contrary to the 1990
mitigation MOA, because vegetated buffers next to open waters help
achieve the goals of the Clean Water Act. It is also important to note
that the 1990 mitigation MOA applies only to activities subject to the
standard permit process.
One commenter requested clarification as to where vegetated buffers
must be located. A few commenters disagree with the Corps position that
vegetated buffers adjacent to waters of the United States provide
benefits for the aquatic environment. One commenter requested that the
Corps explain why vegetated buffers are necessary and specify the goals
that will be accomplished by vegetated buffers. This commenter said
that the goals of vegetated buffers will affect width requirements.
This commenter also believes that not all areas adjacent to open waters
provide significant benefits to water quality and that all vegetated
buffers do not perform all 10 functions listed on page 39274 of the
July 21, 1999, Federal Register notice, because the functions of
vegetation buffers are dependent on the vegetation present and site and
soil characteristics.
For the purposes of the NWPs, vegetated buffers are to be
established and maintained on uplands or wetlands next to perennial and
intermittent streams and other open waters. The functions and values of
vegetated buffers next to open waters, especially forested riparian
zones next to streams, are well documented in the scientific
literature. The main goal of the vegetated buffer requirement is to
restore, enhance, and protect open waters. In general, properly
designed and implemented vegetated buffers, especially those inhabited
by trees, will perform the functions listed above. Since we are not
requiring vegetated buffers next to ephemeral streams, most vegetated
buffers should have adequate amounts of water to naturally establish
and support trees in the riparian zone. Vegetated buffers will normally
be 25 to 50 feet wide on both sides of streams, but the district
engineer can require wider vegetated buffers to address documented
water quality concerns. A 25 to 50 foot wide vegetated buffer next to a
stream provides important aquatic habitat functions and values, as well
as substantial water quality benefits.
Many commenters believe that the vegetated buffer requirements for
the new and modified NWPs exceed the Corps regulatory authority.
Several commenters consider the vegetated buffer requirement as an
attempt to expand the scope of the Corps jurisdiction to uplands.
Numerous commenters indicated that the Corps is requiring vegetated
buffers even if the work does not involve discharges of dredged or fill
material into waters of the United States. Many commenters said that
any vegetated buffer requirements should be imposed by the states, who
have authority under Section 401 of the Clean Water Act to address
water quality issues. Several commenters said that vegetated buffers
could also be imposed by states through the requirements of the
National Pollutant Discharge Elimination System program.
The Corps has the statutory authority to require vegetated buffers
next to streams and other open waters because the goal of the Clean
Water Act is to restore and maintain the chemical, physical and
biological integrity of Nation's waters. This goal is stated in Section
101 of the Clean Water Act and is applicable to all sections of the
Clean Water Act, including section 404. Vegetated buffers next to
streams and other open waters help maintain the chemical, physical, and
biological integrity of these waters. The establishment and maintenance
of vegetated buffers next to streams is the
[[Page 12834]]
restoration of riparian zones. Discharges of dredged or fill material
into waters of the United States, which the Corps regulates under
section 404 of the Clean Water Act, result in the loss of aquatic
resource functions and values. The establishment and maintenance of
vegetated buffers next to streams and other open waters offsets losses
of aquatic resource functions and values and reduces degradation of
these aquatic resources.
The vegetated buffer requirement is not an attempt to expand the
Corps regulatory jurisdiction. We are not asserting jurisdiction over
uplands next to streams and other open waters. We cannot require
compensatory mitigation for upland impacts, but we can require, as
compensatory mitigation, upland vegetated buffers that restore or
protect aquatic habitat and water quality. The establishment or
maintenance of a vegetated buffer next to waters of the United States
can be an important part of the compensatory mitigation required for a
Corps permit. The establishment and maintenance of vegetated buffers
next to open waters can be considered as compensatory mitigation that
offsets losses of waters of the United States and ensures that the
adverse effects of the authorized work on the aquatic environment are
minimal. Vegetated buffers are not normally required for activities
that do not involve discharges of dredged or fill material into waters
of the United States. For example, vegetated buffers are not required
for structures in navigable waters of the United States, unless the
district engineer determines that such compensatory mitigation is
necessary to offset impacts to those waters.
Vegetated buffers next to streams and other open waters do more
than protect water quality. Eight of the 10 functions listed in the
July 21, 1999, Federal Register notice relate to aquatic habitat. Only
two functions listed in that notice exclusively addressed water quality
functions. Likewise, most of the functions of vegetated buffers listed
in this Federal Register notice are aquatic habitat functions.
Commenters objecting to the vegetated buffer requirement focused only
on the water quality functions of vegetated buffers, and ignored the
aquatic habitat functions.
A number of commenters stated that the vegetated buffer requirement
duplicates, and may conflict with, local land use planning. Two
commenters said that the vegetated buffer requirement is contrary to 33
CFR 320.4(j)(2), which states that the primary responsibility for
zoning lies with state, local and Tribal governments. Many commenters
believe that the vegetated buffer requirement constitutes a taking of
private property. Two commenters said that the vegetated buffer
requirement has the potential to result in a taking of private property
because the Corps has failed to demonstrate the causal link between the
vegetated buffer requirement and specific water quality concerns caused
by discharges of dredged or fill material into waters of the United
States authorized by the NWPs. These commenters assert that the Corps
must allow alternative methods to address water quality concerns.
The vegetated buffer requirement does not duplicate or conflict
with local land use planning. Although some state and local governments
have vegetated buffer requirements, there are many regions that do not
have such requirements. The district engineer will consider state and
local vegetated buffer requirements when determining the vegetated
buffer requirements for NWP activities. If the state or local vegetated
buffer requirements are adequate, then the district engineer can defer
to those requirements. The vegetated buffer requirement is not contrary
to 33 CFR 320.4(j)(2) because it does not override state or local
zoning decisions. If it is impractical for the permittee to establish
and maintain vegetated buffers next to open waters on the project site,
then vegetated buffers are not required. If the project proponent does
not want to establish and maintain vegetated buffers and the district
engineer determines that such buffers are necessary to ensure the
proposed work results in minimal adverse effects on the aquatic
environment, then the project proponent can request an individual
permit or other form of DA permit.
The vegetated buffer requirement does not constitute a taking of
private property because it is compensatory mitigation to offset losses
of aquatic resource functions and values. If the project proponent does
not want to establish and maintain vegetated buffers next to open
waters on the project site, then he or she can request another form of
DA permit to authorize the activity. The removal of nutrients,
sediments, and pollutants from surface and shallow subsurface waters by
vegetated buffers next to open waters is well documented in the
scientific literature. The establishment and maintenance of vegetated
buffers is a type of out-of-kind compensatory mitigation to offset
authorized losses of wetlands and other waters of the United States,
which also remove these chemical compounds from waters. The vegetated
buffer requirement is no different than requiring the alteration of
uplands to create wetlands as compensatory mitigation for losses of
wetlands. In fact, the establishment and maintenance of vegetated
buffers next to streams and other open waters is likely to be more
successful and less costly than attempting to create wetlands by
grading and altering uplands. When reviewing compensatory mitigation
proposals, district engineers can consider alternative forms of
compensatory mitigation to address water quality concerns, if vegetated
buffers are not practical for the project site.
Several commenters opposed the vegetated buffer requirement,
stating that it substantially reduces the amount of developable area on
a parcel of land. Two commenters said that the vegetated buffer
requirement will be difficult to implement for those projects that have
already received subdivision approval. These commenters also assert
that this requirement will increase the cost of housing. Several
commenters said that the establishment and maintenance of vegetated
buffers is practical only in large, open spaces. One commenter stated
that the vegetated buffer requirement will increase sprawl development
because it requires buildings to be constructed farther apart from each
other.
Although the vegetated buffer requirement may reduce the amount of
developable land on a particular parcel, we do not agree that such a
reduction will be substantial. In most situations, vegetated buffers
will be located in 100-year floodplains, in which there are often state
or local building restrictions. If it is impractical for the project
proponent to establish and maintain vegetated buffers on the property
because of prior subdivision approval, then the district engineer can
determine that vegetated buffers are not required. We do not agree that
the vegetated buffer requirement will increase the cost of housing more
than any other type of compensatory mitigation requirement, such as the
creation of wetlands. In most circumstances, establishing and
maintaining vegetated buffers will be less costly than grading land to
create wetlands. The vegetated buffer requirement will not encourage
sprawl development.
One commenter believes that the Corps needs to provide a cost-
benefit analysis for the vegetated buffer requirement. This commenter
also stated that this requirement requires an environmental impact
statement because it is a major Federal action.
The vegetated buffer requirement does not need a cost-benefit
analysis or an environmental impact statement.
In the July 21, 1999, Federal Register notice, we stated that
vegetated buffers
[[Page 12835]]
will normally be 50 to 125 feet wide, but provided district engineers
with the flexibility to impose narrower or wider vegetated buffers.
Many commenters stated that the widths of vegetated buffers required
for NWP activities should be based on the width necessary to ensure
that the adverse effects to the aquatic environment are minimal. These
commenters said that permit conditions, including mitigation
requirements, must be directly related to impacts of the proposed work
and appropriate to scope and degree of those impacts. One of these
commenters cited 33 CFR 325.4(a). Another commenter cited 33 CFR
320.4(r) and remarked that the Corps has not demonstrated that
vegetated buffers provide compensatory mitigation for identifiable
losses of resources. Numerous commenters said that the requirement for
50 to 125 foot wide vegetated buffers would, in some cases, result in
compensatory mitigation requirements that would exceed the impacts of
the activity. Two commenters disapprove of the vegetated buffer
requirement, stating that it is not tailored to the effects of the
authorized activity and could result in large vegetated buffers for
projects that result in small losses of waters of the United States.
Several commenters said that vegetated buffer requirements for
particular projects must be in proportion of the impacts of the
authorized work.
After considering these comments, we have reduced the recommended
width of vegetated buffers to 25 to 50 feet wide on both sides of the
stream or 25 to 50 feet from the OHWM or bank of the open waterbody.
District engineers can require wider vegetated buffers if there are
documented water quality concerns. The width of the vegetated buffer is
measured in a direction perpendicular to the OHWM or bank of the open
waterbody. The 25 to 50 foot wide vegetated buffer will provide aquatic
habitat functions and values, as well as water quality benefits. When
determining the appropriate width of vegetated buffers, district
engineers will consider the degree of the adverse effects on the
aquatic environment caused by the authorized work and require
compensatory mitigation to the extent necessary to ensure that the
adverse effects are minimal. The required compensatory mitigation,
including vegetated buffers, will be in proportion, from an aquatic
function and value perspective, to the authorized impacts to waters of
the United States. If the authorized work results in minimal adverse
effects on the aquatic environment without compensatory mitigation,
then vegetated buffers are not required.
Two commenters said that the Corps should not specify a minimum
width for vegetated buffers. One of these commenters contends that the
benefits of vegetated buffers is likely to be different for dissimilar
types of wetlands and waterbodies. One commenter requested
clarification concerning the criteria that will be used to determine
the width of vegetated buffers for specific project sites and which
plant species should be used to establish the vegetated buffer. One
commenter asked if a 50 to 125 foot wide vegetated buffer will be
required in all cases. Two commenters recommended a minimum vegetated
buffer width of 100 feet.
One commenter stated that many factors are cited in the current
literature for determining the appropriate width of vegetated buffers.
This commenter said that the Corps needs a standard method that
district engineers can use to determine appropriate, site-specific
vegetated buffer widths. This commenter also indicated that the width
of the vegetated buffer should be based on the value of the aquatic
resource to be protected and adjacent land uses. In addition, the
method should identify situations where vegetated buffers are
inappropriate or impractical. Several commenters said that the Corps
should use a more flexible approach for vegetated buffer requirements,
including the consideration of other methods that provide the same
benefits, while utilizing less land. One commenter suggested methods to
provide flexibility for vegetated buffer requirements, including buffer
averaging to allow certain buffer areas to be narrower as long as the
average width meets minimum requirements, conservation easements that
can be donated to responsible charitable trusts and owner tax benefits,
and density trading which allows developers density credits to offset
loss of useable land to buffers.
We believe that recommending a 25 to 50 foot wide vegetated buffer
and allowing district engineers the flexibility to determine
appropriate vegetated buffer widths on a case-by-case basis is
appropriate. A 25 to 50 foot wide vegetated buffer next to open waters
will protect or restore aquatic habitat functions and values and
provide water quality benefits. District engineers can require wider
vegetated buffers if there are documented water quality concerns that
can be addressed by a wider vegetated buffer. The district engineer
will determine the appropriate width of the vegetated buffer on a case-
by-case basis, based on the degree of impacts and the quality of
waters. District engineers will also assess, on a case-by-case basis,
whether or not vegetated buffers are impractical or inappropriate.
District engineers can also consider the use of buffer width averaging.
Density trading is more appropriately addressed by local planning and
zoning agencies.
One commenter suggested using vegetated buffer width guidelines
published by NRCS, which are based on soil type, slope, and topography.
Two commenters stated that appropriate vegetated buffer widths should
be determined by district engineers after consultation with Federal and
state resource agencies. Two commenters requested that the Corps
provide guidance for determining the length of the vegetated buffer
along the open waterbody (i.e., how far upstream and downstream the
vegetated buffer should extend).
We do not agree that it is necessary, for the purposes of the NWPs,
to utilize complex vegetated buffer width guidelines based on soil
types, slopes, and topography. Vegetated buffers 25 to 50 feet wide
provide substantial aquatic habitat functions and water quality
benefits. District engineers can require wider vegetated buffers to
address documented water quality concerns or narrower vegetated buffers
where it is not practicable to require 25 foot wide buffers. District
engineers can coordinate with Federal and state resource agencies to
determine the appropriate vegetated buffer width for a particular
project, but we do not believe that this is necessary in all cases. The
length of the vegetated buffer should extend along the open waterbody
to the extent the district engineer determines necessary to offset
authorized impacts.
Several commenters indicated that the guidance in the July 21,
1999, Federal Register notice concerning the width of vegetated buffers
contradictory. For instance, General Condition 9 states that vegetated
buffers must be established to the maximum extent practicable but there
is a statement on page 39339 that says that the vegetated buffer should
be as wide as possible. In addition, on page 39274 there is a statement
that the width of the vegetated buffer must balance the benefits to
environment with the uses of property resulting from authorized work.
These commenters believe that the width of the vegetated buffer should
be based on the benefits of the buffer and the adverse effects of the
regulated activity (i.e., the discharge of dredged or fill material
into waters of the United States), not all uses of the project.
[[Page 12836]]
We do not agree that the discussion of vegetated buffer
requirements in the July 21, 1999, Federal Register notice contains
contradictions. The appropriate width of a vegetated buffer is
dependent on what is practicable for the prospective permittee and the
amount of vegetated buffer that is necessary to ensure that the
activity results in minimal adverse effects to the aquatic environment.
Several commenters said that vegetated buffers should not be
required in all cases, particularly in those situations where the
adverse effects on the aquatic environment are minimal. One commenter
asked if vegetated buffers are required for activities that do not
require notification to the district engineer. Another commenter asked
if vegetated buffers are required even if the proposed work does not
result in any impacts to streams, open waters, or wetlands on the
project site. One commenter stated that vegetated buffers should be
required only if there are perennial or intermittent streams on the
site. Two commenters asserted that vegetated buffers should not be
required next to ephemeral streams. One commenter stated that
flexibility for district engineers to determine vegetated buffer widths
reduces predictability for the regulated public when planning
developments. Two commenters recommended that joint Federal agency
guidance be developed for vegetated buffer requirements.
Vegetated buffers are not required if the proposed work results in
minimal adverse effects on the aquatic environment without compensatory
mitigation. Vegetated buffers are only required where the proposed
project requires a Corps permit. The Corps is not establishing any new
authority to regulate riparian areas, where no Corps permit is
otherwise required. Vegetated buffers are not required for activities
that do not require notification, since these activities result in
minimal adverse effects on the aquatic environment. Vegetated buffers
are required if there are open waters on the project site. We agree
that vegetated buffers should not be required next to ephemeral
streams. We will consider the development of joint guidance for
vegetated buffer requirements.
Two commenters objected to requirements for conservation easements
or deed restrictions for vegetated buffers. Another commenter supported
the requirement for conservation easements or deed restrictions.
As with other forms of compensatory mitigation, conservation
easements or deed restrictions for vegetated buffers are necessary to
ensure that the compensatory mitigation site is maintained and
protected from future alteration.
Three commenters requested clarification concerning how vegetated
buffers are to be maintained and for how long vegetated buffers must be
maintained. Two commenters stated that the requirement to maintain
vegetated buffers is too burdensome for permittees because it implies
that the permittees would have to monitor vegetated buffers and replace
any vegetation that dies or is damaged during a flood or other storm
event. One commenter indicated that the maintenance of vegetated
buffers is problematic in arid regions because water would have to be
provided to the plants to ensure their survival, which would be costly
and contrary to water conservation policies. Two commenters suggested a
limit of one year for the maintenance of vegetated buffers.
Permittees are not required to establish and maintain vegetated
buffers that would require active management, such as irrigation. If
the vegetated buffer must be planted, it must be self-sustaining,
without the need for maintenance. Trees and shrubs damaged by storms
and other events do not need to be replaced because the vegetation will
grow back at the buffer site.
Two commenters supported the requirement for native species in
vegetated buffers. Several commenters objected to requiring native
species in vegetated buffers. One commenter said that this requirement
is contrary to current best management practices because certain non-
invasive, non-native plant species may be preferable in certain
circumstances. Two commenters stated that the requirement for native
species is unnecessary because there is no connection between water
quality and the planting of native species or the removal of noxious
weeds. Two commenters indicated that the requirement for native trees
and shrubs in vegetated buffers is too strict and permittees should be
able to plant native grasses and other herbaceous species instead of
trees and shrubs. One commenter requested a list of ``acceptable''
native plant species for vegetated buffers.
Permittees are encouraged to plant vegetated buffers with native
species, but this is not an absolute requirement. Vegetated buffers
should be planted with native species, but a well-established vegetated
buffer that contains some non-native species should not be removed and
replaced. We recognize that there are circumstances where non-native
species may be more appropriate. The planting of native species is
important for the habitat functions of vegetated buffers. We encourage
permittees to plant seedlings and saplings of trees in the vegetated
buffer, but permittees can plant herbaceous vegetation in the vegetated
buffer and allow natural succession processes to allow a woody plant
community to develop at a later time. We do not agree that it is
necessary to provide a list of ``acceptable'' native species that
should be planted in vegetated buffers.
One commenter requested clarification whether vegetated buffers
must be grassed or wooded. Another commenter objected to wooded
vegetated buffers because they would impede flood flows and increase
erosion. One commenter stated that wooded vegetated buffers would cause
a loss of hydraulic capacity of the channel.
Vegetated buffers should have woody vegetation because woody
plants, especially trees, are important components of an effective
vegetated buffer. Woody plants, especially trees, provide shade to the
open waters, as well as substantial amounts of detritus that is an
important component of aquatic food webs. Woody vegetation in riparian
zones often slows the velocity of floodwaters, which can provide water
quality benefits by allowing sediment to drop out of suspension and
decrease the sediment load in the water column. We do not agree that
vegetated buffers increase erosion. The roots of woody vegetation help
stabilize the soil, thereby decreasing erosion. Although woody
vegetation, especially tree falls that create snags, may reduce the
hydraulic capacity of a stream channel, it is important to consider the
ecological functions and values of the stream, not just the hydraulic
capacity of the stream channel and water conveyance. With the new and
modified NWPs, we are placing greater emphasis on protecting open
waters, especially streams.
One commenter supported the Corps statement in the July 21, 1999,
Federal Register notice that mowed lawns are not considered vegetated
buffers. Several commenters objected to this statement and believe that
mowed lawns should be considered vegetated buffers.
We do not consider mowed lawns next to streams and other open
waters as vegetated buffers because mowed lawns do not provide most of
the functions and values that a vegetated buffer inhabited by trees or
shrubs would provide. For example, mowed lawns cannot shade streams to
moderate water temperature changes or produce
[[Page 12837]]
woody debris that creates important aquatic habitat. In many areas,
mowed lawns are intensively managed through the application of
fertilizers, herbicides, and pesticides. Intensively managed mowed
lawns next to streams can exacerbate water quality problems that
vegetated buffers are intended to address. Since mowed lawns next to
streams and other open waters do not provide the functions and values
that wooded vegetated buffers provide, it would be inappropriate to
consider mowed lawns next to streams and other open waters as
compensatory mitigation for activities authorized by NWPs.
One commenter said that the requirement for vegetated buffers is
inconsistent with the proposed NWP definitions. For example, the
definition for the term ``compensatory mitigation'' does not include
vegetated buffers that are established and maintained on uplands next
to streams and other open waters. This commenter also contends that
vegetated buffers cannot be considered enhancement because the proposed
NWP definition for this term is limited to activities in aquatic
habitats that increase one or more aquatic functions.
The establishment and maintenance of vegetated buffers next to
streams and other open waters as compensatory mitigation is not
inconsistent with the definition of the term ``compensatory
mitigation'' provided in the ``Definitions'' section of the NWPs. The
planting of trees and shrubs next to a stream in a pasture enhances the
quality of the stream. Stream restoration activities usually involve
planting the upland or wetland riparian zone with trees and shrubs. We
have added a definition of the term ``vegetated buffer'' in the
``Definitions'' section of the NWPs.
One commenter requested that the Corps provide guidance concerning
the specific amount of vegetated buffer that will be required as
compensatory mitigation to offset losses of waters of the United
States. Two commenters stated that vegetated buffers should be an
additional requirement after the permittee has provided full
compensation for wetland losses. A commenter asked if vegetated buffers
alone can be used to satisfy compensatory mitigation requirements for
the NWPs. This commenter also stated that, in many cases, vegetated
buffers already exist on site and that the preservation of these areas
is strongly discouraged by Corps mitigation policy because of the ``no
net loss'' goal. This commenter believes that the vegetated buffer
requirement is contrary to Corps mitigation policy.
We have modified General Condition 19 to provide guidance regarding
the proportion of compensatory mitigation that should consist of
vegetated buffers. If there are open waters on the project site and the
district engineer requires compensatory mitigation for wetland impacts
to ensure that the net adverse effects on the aquatic environment are
minimal, any vegetated buffer will comprise a portion or all of the
remaining compensatory mitigation acreage after the permanently filled
wetlands have been replaced at a one-to-one acreage basis. By using
vegetated buffers as compensatory mitigation, the quality of open
waters will be protected or enhanced by maintaining these vegetated
areas if they already exist on the site. If the vegetated buffer is not
used as compensatory mitigation, then the permittee could cut down the
existing vegetation next to the open waters (which often does not
require a DA permit), which would adversely affect the quality of the
open waters. Programmatically, the Corps will continue to support the
``no net loss'' goal for wetlands, but the establishment and
maintenance of vegetated buffers for NWP activities will provide
substantial benefits for open waters, especially streams.
Many commenters stated that the vegetated buffer requirement is
problematic for companies and agencies that do not own the property
where the vegetated buffer would be located on the project site. For
example, the authority of flood control agencies is often limited to
the channel, not to the land adjacent to the channel. As another
example, utility companies have limited easement rights in utility line
rights-of-way and cannot impose deed restrictions or conservation
easements in these areas. Numerous commenters said that vegetated
buffers should not be required where the project proponent does not own
the land next to the open waters on the project site. Several
commenters stated that the costs for public agencies to obtain rights-
of-way to establish and maintain vegetative buffers will be prohibitive
or economically impractical.
District engineers will not normally require vegetated buffers next
to streams and other open waters if the permittee does not own the land
next to the open waterbody. Such vegetated buffers will only be
required where the permittee has or can reasonably obtain the
appropriate conservation easements. Likewise, vegetated buffers are not
required in utility line easements. However, if the utility company is
building a substation on its land and there are open waters on the
project site, the district engineer can require vegetated buffers next
to those open waters as compensatory mitigation.
Two commenters said that vegetated buffers are impractical in urban
areas where most of the surface runoff is directed to storm drain
pipes, not streams. A commenter stated that maintaining vegetated
buffers adjacent to facilities built by developers but handed over to
local governments would increase costs to those local governments.
Another commenter said that the vegetated buffer requirement will
increase project and maintenance costs for state Department of
Transportation projects. Two commenters assert that the vegetated
buffer requirement will make maintenance of authorized facilities
difficult or prohibitive. One commenter requested clarification whether
a vegetated buffer disturbed during a maintenance activity will require
additional mitigation or whether the project proponent would be
required only to replace the disturbed vegetation.
If it is impractical to establish and maintain vegetated buffers
next to streams in urban areas because of the limited amount of
available land, then vegetated buffers are not required. In these
circumstances, off-site compensatory mitigation may be preferable,
including off-site vegetated buffers. If vegetated buffers next to open
waters would make the maintenance of facilities in waters of the United
States too costly, then other forms of compensatory mitigation should
be considered. We do not agree that the vegetated buffer requirement
would increase costs for transportation projects, because these
activities usually require compensatory mitigation. If it is necessary
to disturb the vegetated buffer during maintenance activities, the
project proponent is only required to allow the vegetation to grow
back. Additional compensatory mitigation will not be required for the
disturbance of a vegetated buffer if it is allowed to grow back.
Several commenters said that vegetated buffers should not be
required for activities authorized by NWPs 3 or 12. One commenter
indicated that vegetated buffers should not be required for linear
transportation crossings that are constructed perpendicular to the
stream. Another commenter said that vegetated buffers should not be
required for flood control maintenance activities.
District engineers can require vegetated buffers for activities
that involve discharges of dredged or fill material into waters of the
United States if there are open waters on the project site. Activities
authorized by NWP 3 typically do not require compensatory
[[Page 12838]]
mitigation, including vegetated buffers. There may be circumstances
where vegetated buffers will be required for utility line activities,
if compensatory mitigation is necessary to ensure that the adverse
effects on the aquatic environment are minimal. Activities authorized
by NWP 31 usually would not require vegetated buffers, especially if
the flood control authority does not own the land next to the flood
control facility or compensatory mitigation was required for the
construction of the facility or previous maintenance activities.
Regional Conditioning
One commenter supported the Corps increased emphasis on regional
conditioning to ensure that the new and modified NWPs authorize only
those activities that result in minimal adverse effects on the aquatic
environment. Numerous commenters objected to imposing regional
conditions on the new and modified NWPs and stated that the Corps
should rely on case-specific special conditions instead of regional
conditions. Several commenters said that regional conditioning of the
NWPs is unnecessary and contrary to the purpose of the NWPs, which is
to authorize activities that have minimal adverse effects. Two
commenters suggested that the Corps impose more stringent national
terms and conditions on the NWPs instead of relying on regional
conditions. One commenter indicated that the Corps reliance on regional
conditions for the new and modified NWPs demonstrates that these NWPs
authorize activities with more than minimal adverse effects. Two
commenters said that regional conditions do not provide adequate
protection for wetlands.
We do not agree that only case-specific special conditions should
be added to NWPs. Regional conditions are more effective at ensuring
that NWPs authorize only those activities with minimal adverse effects
on the aquatic environment, individually and cumulatively. Regional
conditions also benefit the regulated public by providing them with
advance notice of additional NWP restrictions and promoting consistency
in the implementation of the NWP program. Regional conditions are
necessary because aquatic resource functions and values vary
considerably across the country. Utilization of regional conditions is
not contrary to the NWP program because those conditions help ensure
that the NWPs do not authorize activities with more than minimal
adverse effects on the aquatic environment.
Imposing more stringent national terms and limitations on the NWPs
instead of imposing regional conditions would not be a practical
alternative, because it would severely limit the ability of the NWPs to
authorize many activities that have minimal adverse effects on the
aquatic environment. It is far more efficient to develop NWPs that
authorize most activities that have minimal adverse effects on the
aquatic environment and allow division and district engineers to limit
the use of these NWPs or exercise discretionary authority in specific
situations that may result in more than minimal adverse effects on the
aquatic environment. For particular regions of the country or specific
waterbodies where additional safeguards are necessary to ensure that
the NWPs authorize only those activities with minimal adverse effects,
regional conditions are the appropriate mechanism. Case-specific
discretionary authority or special conditions cannot substitute 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 lower PCN thresholds for activities in high
value waters to allow district engineers to review those activities and
determine if the work can be authorized by NWPs. Division and district
engineers are much more knowledgeable about local aquatic resource
functions and values and can prohibit or limit the use of the NWPs in
high value waters. We contend that regional conditioning of the NWPs
provides effective protection for high value wetlands and other aquatic
habitats.
Several commenters indicated that regional conditions should be
more consistent between Corps districts. One of these commenters also
stated that regional conditions should be based on environmental
factors and climate, not political boundaries. One commenter
recommended Corps division boundaries as the smallest unit for
consistency in regional conditions. Another commenter suggested state
boundaries as the smallest unit for consistency of regional conditions.
Several commenters said that regional conditions make it more difficult
for companies that work in more than one state to efficiently manage
their operations to comply with the NWPs.
To a certain extent, regional conditions are based on environmental
factors but it is usually necessary to provide some consistency within
political boundaries, such as state boundaries. Consistency within a
particular state is beneficial to the regulated public because it
results in more effective cooperation between state agencies, such as
the state agencies responsible for making Section 401 and CZMA
determinations, and the Corps. In those states where more than one
Corps district is present, we have recommended that those Corps
districts develop, to the extent practicable, consistent regional
conditions statewide. However, we recognize that there may be certain
regions within a state, such as specific high value waterbodies, that
may warrant regional conditions that are not necessary in other areas
of that state. Different regional conditions can be imposed in those
unique situations. Within Corps division boundaries, there is often
wide variability in aquatic resource functions and values. Therefore,
consistency in regional conditions at a scale larger than a state 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 Corps district or more than one state will have to
comply with the regional conditions established in each district or
within each state.
One commenter stated that the Corps assertion that regional
conditions cannot be elevated to headquarters is inconsistent with the
regional conditioning process established in the July 1, 1998, Federal
Register notice. Three commenters indicated that division engineers
should be able to increase the acreage limit of an NWP or delete or
modify conditions of an NWP through regional conditions and recommended
that the Corps revise its regulations to provide division engineers
with such authority.
The authority to require regional conditions lies solely with
division engineers and cannot be elevated to the Headquarters level.
The regulations for the NWPs (33 CFR Part 330) clearly state that the
modification, suspension, or revocation of any NWP on a regional basis
is the decision of the division engineer. The regional conditioning
process described in the July 1, 1998, Federal Register notice did not
include elevation of NWP regional conditions to headquarters. Meetings
between Corps district commanders and Regional Administrators of EPA
and Regional Directors of the U.S. Fish and Wildlife Service and
National Marine Fisheries Service were to occur to discuss proposed
regional conditions and resolve any disputes concerning those regional
conditions (see 63 FR 36048).
[[Page 12839]]
As discussed in the July 21, 1999, Federal Register notice,
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 determines that
regional general permits (RGPs) 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. However, we have established a six month moratorium on RGPs
and LOPs that are germane to the new and modified NWPs to allow
districts time to assess the true need for such RGPs and LOPs.
One commenter stated that the regional conditioning process
violates the Administrative Procedures Act and that proposed regional
conditions must be published in the Federal Register for comment. This
commenter said that posting draft regional conditions on Internet home
pages provides inadequate notice because most citizens do not use the
Internet. This commenter also requested that the Corps publish a notice
in the Federal Register that includes all proposed regional conditions
to solicit public comments on those regional conditions. Several
commenters objected to the regional conditioning process because all
draft regional conditions were not available when the July 21, 1999,
Federal Register notice was published. Two commenters said that
regional conditions should not be drafted or subject to comment until
the new and modified NWPs are issued.
Regional conditions for the NWPs do not need to be published in the
Federal Register for public comment. It is important to remember that
regional conditions are issued by division commanders, not Corps
headquarters. District public notices for regional conditions provide
adequate opportunities for public comment. Since the proposed regional
conditions do not affect the process for issuing the new and modified
NWPs, we do not agree that it was necessary to have all draft regional
conditions posted on district Internet home pages at the same time the
July 21, 1999, Federal Register notice was published. The 75-day
comment period provided adequate opportunities for the public to
consider both the July 21, 1999, Federal Register notice and all draft
regional conditions proposed by Corps districts.
One commenter stated that it is difficult for prospective
permittees to determine in which district their activities would occur
and recommended that the Corps make maps of district boundaries
available. One commenter suggested that high value waters subject to
regional conditioning include warm water fisheries and waters with
benthic macroinvertebrates.
The Corps has a general map of Corps division and district
boundaries that is available on the Internet at http://
www.usace.army.mil/inet/locations/bdry-pages/. This interactive map
also provides links to Corps district home pages. Due to the scale of
this map and since most Corps district boundaries are based on
watershed boundaries, prospective permittees should contact the nearest
Corps district office to determine which Corps district will review
their PCN or permit application. Division engineers can determine that
waters of the United States supporting warm water fisheries or benthic
macroinvertebrates are high value waters that should be subject to
regional conditioning.
Essential Fish Habitat
For the proposed new and modified NWPs published in the July 21,
1999, Federal Register notice, we conducted programmatic Essential Fish
Habitat (EFH) consultation with the National Marine Fisheries Service
(NMFS), pursuant to Section 305(b)(2) of the Magnuson-Stevens Fishery
Conservation and Management Act. In response to our request for
programmatic consultation, NMFS made two programmatic EFH conservation
recommendations. The first EFH conservation recommendation was for
Corps districts to work with NMFS regional offices to the extent
necessary to develop NWP regional conditions that conserve EFH and are
consistent with NMFS regional EFH conservation recommendations. The
second EFH conservation recommendation indicated that paragraph (e) of
General Condition 13, which states that district engineers will provide
no responses to resource agency comments on PCNs, should not apply to
EFH conservation recommendations provided by NMFS.
We concur with both of these EFH conservation recommendations. We
have directed our district offices in geographic regions with EFH to
coordinate with NMFS regional offices to develop, to the extent
necessary, regional conditions for the new and modified NWPs that
conserve EFH and are consistent with NMFS regional EFH conservation
recommendations. In addition, we have added a sentence to paragraph (e)
of General Condition 13 to require district engineers to respond to
NMFS within 30 days of receipt of any EFH conservation recommendations.
This requirement is necessary to comply with section 305(b)(4)(B) of
the Magnuson-Stevens Fishery Conservation and Management Act.
Workload Implications of the New and Modified Nationwide Permits
A large number of commenters stated that the lower acreage limits
and PCN requirements of the new and modified NWPs, as well as the three
proposed general conditions, will result in substantial increases in
the number of standard permit applications processed by the Corps and
processing times for all Section 404 permits. Many commenters objected
to the proposed NWPs because the Corps did not explain how it will
handle the increase in workload. A number of commenters said that if
the proposed changes to the NWP program are implemented, the Corps will
need to increase its resources to process the additional standard
applications and PCNs in a timely manner. One commenter said that the
cumulative impact analysis requirements will increase the Corps
workload while another commenter cited regional conditions as another
factor that will increase the Corps workload.
One commenter predicted that the Corps will experience an increase
of 17,000 individual permit applications per year. Another commenter
estimated an increase of 2,000 individual permits per year as a result
of the proposed changes. This commenter also predicted that average
individual permit processing times will increase from 89 days to 350
days over the next six years and estimates that the permit application
carryover will double during that time period.
The workload and compliance costs study conducted by IWR, and
mentioned above in the overview, for the proposal published in the July
21, 1999, Federal Register showed that the proposed NWP package would
result in a 50% increase in the number of standard individual permit
applications received by the Corps per year. The study estimated that
the Corps would receive 4,429 additional standard permit applications
per year and receive 2,878 fewer NWP PCNs per year. As a result of the
increased standard permit workload, the average amount of time that it
takes for the Corps to process permit applications would increase three
to four times within five years. Likewise, the permit application
[[Page 12840]]
backlog would increase by the same amount during that five year period.
The changes to the new and modified NWP issued today, including the
\1/2\ acre limit and the modification of the general condition for
fills in 100-year floodplains, are estimated to result in 40% fewer
standard permit applications compared to the proposal published in the
July 21, 1999, Federal Register. Also, the standard permit processing
times and the permit application backlog would increase by one and a
half to two times the amount for FY 1998.
We have also reviewed an analysis, based on the July 21, 1999,
proposal, that was conducted on behalf of the National Association of
Counties. This analysis examined the impacts of the July 21, 1999,
proposal on the Corps workload and costs to the Corps and the regulated
public.
We have not proposed any changes to our approach for analyzing
cumulative adverse effects on the aquatic environment cause by NWPs.
Therefore, cumulative adverse effect analysis will not impose
additional workload on Corps district offices. Although regional
conditions will cause some increases in the Corps workload, those
increases are manageable and necessary to ensure that the NWPs do not
authorize activities that result in more than minimal adverse effects
on the aquatic environment.
One commenter said that the increases in workload caused by the
three proposed general conditions are offset by the increased scope of
applicable waters for these NWPs, because many of these activities
would have required individual permits when NWP 26 was in place. In
contrast, another commenter stated that the proposed NWPs will result
in more individual permit applications because the new NWPs do not
authorize activities in tidal waters.
We do not agree that the larger geographic scope of the new NWPs,
when compared to the geographic scope of NWP 26, will offset the
increase in workload caused by the new NWP general conditions. For
example, General Condition 26 prohibits discharges of dredged or fill
material into waters of the United States within 100-year floodplains
of stream segments below headwaters. Since NWP 26 did not authorize
discharges of dredged or fill material into tidal waters, prohibiting
the use of the new NWPs in tidal waters will not cause any increases in
the number of individual permit applications processed by the Corps.
Other Issues
In response to the July 21, 1999, Federal Register notice, some
commenters raised additional issues related to the new and modified
NWPs. Several commenters expressed concern that none of the new and
modified NWPs authorize oil and gas development facilities. These
commenters said that NWP 26 was used to authorize these facilities
where no regional general permits (RGPs) are available and recommended
that the Corps develop such an NWP. One commenter suggested that the
Corps modify NWP 39 to authorize oil and gas wells as industrial
facilities.
When we developed the new and modified NWPs that will replace NWP
26, we considered an NWP to authorize oil and gas facilities. However,
when we surveyed Corps districts to determine how frequently such an
NWP would be used, we found that there was little need for this NWP
because most of the districts that frequently authorize oil and gas
facilities have issued RGPs to authorize these activities. The
development of RGPs for this activity is more appropriate than
developing a new NWP. We do not agree with the recommendation to modify
NWP 39 to authorize these activities, because NWP 39 authorizes
building pads and attendant features, and oil and gas wells are not
buildings.
Two commenters recommended that the Corps develop an NWP to
authorize the construction of fish passage facilities and other stream
enhancement activities, such as relocating a portion of a stream
channel to provide proper alignment for fish passage, because these
activities were authorized by NWP 26.
We do not agree that there is sufficient need to develop a new NWP
to authorize the construction of fish passage facilities. Stream
enhancement activities may be authorized by NWP 27, provided the
proposed work meets the terms and conditions of this NWP. Discharges
into waters of the United States associated with the construction of
fish passage facilities may also be authorized by other NWPs, RGPs, or
individual permits.
Several commenters requested that the Corps reverse its decision to
withdraw NWP B, which was proposed in the July 1, 1998, Federal
Register notice to authorize master planned development activities. One
of these commenters stated that the withdrawal of proposed NWP B is
contrary to ``smart growth'' initiatives.
Our decision to withdraw NWP B is discussed in the October 14,
1998, and July 21, 1999, Federal Register notices. We have not changed
our position on this matter, but we could propose an NWP for master
planned development activities at a later time. We do not agree that
the withdrawal of NWP B is contrary to smart growth initiatives,
because developments that are part of smart growth planning efforts can
be authorized by other NWPs, such as NWP 39, RGPs, and individual
permits.
One commenter objected to the draft NWPs, stating that they do not
authorize certain activities associated with railroad operations, such
as the completion of drainage improvements along unstable embankments,
bank stabilization to protect tracks from slide events, small fills
associated with the installation of signals and switches, and the
construction of miscellaneous structures associated with railroad
tracks.
Some of these activities can be authorized by existing NWPs,
including some of the NWPs modified today. For example, bank
stabilization activities to protect railroad tracks from slide events
may be authorized by NWP 13. Small fills associated with the
installation of signals, switches, and minor drainage improvements may
be authorized by NWP 18. NWP 14 may also be used to authorize some
activities associated with railroads, since railways are linear
transportation projects. These activities can also be authorized by
RGPs and individual permits, if they do not qualify for authorization
under the NWP program.
Two commenters said that a new NWP should be developed to authorize
the construction of flood control improvements, including structures
and fills for flood control facilities. Two commenters stated that the
new and modified NWPs and regional conditions will make it more
difficult to maintain a previously authorized flood-control facility.
We do not agree that a new NWP should be developed for the
construction of flood control facilities. Such activities are likely to
result in more than minimal adverse effects on the aquatic environment
by reducing or eliminating the natural functions and values of open
waters, including streams, and floodplains. Flood control activities
may be authorized by NWPs, RGPs, or individual permits. The new and
modified NWPs will not make it more difficult to maintain flood control
facilities. We have withdrawn the proposed general condition for
impaired waters. General Condition 26, Fills in 100-year Floodplains,
does not apply to NWP 31, which authorizes the
[[Page 12841]]
maintenance of existing flood control facilities.
One commenter requested that the Corps develop a new NWP to
authorize abandoned mined land cleanup activities, since NWP 27 does
not authorize all of these activities. This commenter said that NWP 26
was used to authorize these activities.
During the reissuance process for the existing NWPs that will begin
in 2001, we will consider developing an NWP to authorize discharges of
dredged or fill material into waters of the United States for abandoned
mined land cleanup projects.
One commenter recommended that the Corps revoke the NWPs in all
watersheds or sub-basins that have exceeded 8% imperviousness. Another
commenter suggested that the Corps condition the NWPs to encourage or
require planting of native plant species in areas that are impacted by
NWP activities, because such a condition would support Executive Order
13112, entitled ``Invasive Species.'' Two commenters said that the
Corps should develop and implement a classification system that
assesses the potential for restoring or enhancing degraded wetlands to
encourage restoration or enhancement, instead of issuing permits to
fill these areas.
We do not agree that the NWPs should be revoked simply because the
amount of impervious surface within a particular watershed has exceeded
a certain threshold. District engineers will monitor the use of the
NWPs to ensure that the NWPs do not authorize activities with more than
minimal adverse effects on the aquatic environment, individually or
cumulatively. We cannot require all permittees to plant native species
at sites impacted by activities authorized by NWPs, but they are
encouraged for vegetated buffers. While we encourage restoration and
enhancement of degraded wetlands as compensatory mitigation for
activities authorized by DA permits, including NWPs, we cannot develop
a classification system to identify these areas and prohibit discharges
of dredged or fill material into those waters.
Two commenters requested that the final notice announcing the
issuance of the new and modified NWPs include a statement that the
three new NWP conditions proposed in the July 21, 1999, Federal
Register notice should not become conditions on all Corps permits,
including individual permits. Two commenters said that any regional
general permits or Section 404 letters of permission issued by Corps
districts must include the three proposed new NWP general conditions.
We agree that the proposed general conditions limiting the use of
NWPs in designated critical resource waters, impaired waters, and
waters of the United States within 100-year floodplains should not be
incorporated into all Corps permits. RGPs issued by Corps districts can
authorize only activities that result in minimal adverse effects on the
aquatic environment. Since RGPs are local solutions for implementing
the Corps regulatory program, these general permits will thoroughly
address local concerns for the aquatic environment. Therefore, it is
not necessary for all RGPs issued by district engineers to contain
conditions limiting their use in designated critical resource waters,
impaired waters, and waters of the United States within 100-year
floodplains. Standard permits are subject to the public interest review
process, which considers impacts to public interest factors, including
critical resource waters, impaired waters, and waters of the United
States within 100-year floodplains.
One commenter recommended that the Federal Register notice
announcing the final new and modified NWPs contain a compilation of all
regulatory information concerning the NWPs to make the preamble
discussions available to the regulated public. Another commenter
indicated that the Corps cannot issue provisional NWP authorizations in
states that have denied water quality certification for those NWPs.
All Federal Register notices concerning the new and modified NWPs
are currently available to the public. Due to the length of these
notices and the many changes that have occurred since these NWPs were
initially proposed on July 1, 1998, it would be impractical to compile
the preambles for all of these notices into one document. In the July
21, 1999, Federal Register notice (64 FR 39261), we addressed comments
concerning the issuance of provisional NWP verifications and we have
not changed our position on this matter.
One commenter said that the new NWPs and general conditions should
not become effective until six to nine months after the new NWPs are
issued, so that activities that have already been planned can proceed
under the NWPs issued in 1996. One commenter objected to using NWPs to
authorize the expansion of existing projects, stating that this
discourages avoidance and minimization of losses of waters of the
United States. One commenter stated that the new and modified NWPs
should address impacts to prior converted cropland. Several commenters
said that NWP 29 should be revoked.
The new and modified NWPs, including the new and modified general
conditions, will become effective on June 5, 2000. Until the effective
date of the new and modified NWPs and general conditions, the current
NWPs (as published in the December 13, 1996, Federal Register) are
applicable. Permittees that begin work, or are under contract to begin
work, prior to the effective date of the new and modified NWPs, have
one year to complete the work under the term and conditions of the NWPs
issued in 1996. However, in a notice published in the December 15,
1999, issue of the Federal Register (64 FR 69994), we established a
procedure for processing NWP 26 PCNs. We do not agree that a longer
implementation schedule is necessary. In addition, an extended
implementation schedule would be contrary to our intent to replace NWP
26 with activity-specific NWPs that authorize activities with minimal
adverse effects on the aquatic environment.
The use of NWPs to authorize the expansion of existing projects
does not discourage avoidance and minimization of activities in waters
of the United States. These activities are required to comply with all
NWP terms and conditions, including General Condition 19, and must
result only in minimal adverse effects on the aquatic environment. The
new and modified NWPs do not need to address impacts to prior converted
cropland, since these areas are not waters of the United States. If
prior converted cropland is abandoned and reverts back to
jurisdictional wetlands, then those areas are subject to the permit
requirements of Section 404 of the Clean Water Act. We do not agree
that NWP 29 should be revoked, since it authorizes single family
housing activities with minimal adverse effects on the aquatic
environment.
III. Comments and Responses on Specific Nationwide Permits
3. Maintenance: In the July 21, 1999, Federal Register notice, we
proposed to modify this NWP to authorize the removal of accumulated
sediment in the vicinity of existing structures and authorize
activities in waters of the United States associated with the
restoration of uplands damaged by storms, floods, or other events.
These additional activities are in paragraphs (ii) and (iii),
respectively, of this NWP.
One commenter said that the proposed modifications are not
[[Page 12842]]
maintenance activities and should not be authorized by this NWP. Some
commenters requested clarification whether this NWP only applies to
activities not statutorily exempt under section 404(f)(1)(B) of the
Clean Water Act. One commenter objected to this NWP, stating that it is
used to change existing projects to different use categories. Another
commenter asked what is meant by the phrase ``minor deviations in the
structure's configuration or filled area.''
We believe that the activities authorized by paragraphs (ii) and
(iii) of this NWP are maintenance activities. The note at the end of
this NWP states that NWP 3 authorizes the repair, rehabilitation, or
replacement of any previously authorized structure or fill that does
not qualify for the Section 404(f) exemptions for maintenance. The
first sentence of paragraph (i) explicitly states that NWP 3 does not
authorize changes in use for the authorized structure or fill. The
phrase ``minor deviations in the structure's configuration or filled
area'' allows the project proponent to make minor changes to a
previously authorized structure or fill during the repair or
maintenance activity so that the structure or fill complies with
current construction standards or other regulations.
Several commenters supported the removal of the notification
requirement from paragraph (i) of this NWP. One commenter said that
replacement activities should allow reconfiguration of structures such
as marina piers. One commenter believes that paragraph (i) contains
contradictory language because it authorizes the repair, replacement,
or rehabilitation of previously authorized, currently serviceable
structures or fills and the replacement of structures destroyed by
storms. Another commenter said that some maintenance activities take
longer than two years and recommended that the NWP be modified to
accommodate those longer repair periods. One commenter recommended that
the NWP authorize the use of cofferdams during maintenance activities.
The reconfiguration of marinas is authorized by NWP 28. The
reconfiguration of other types of structures may be authorized by other
NWPs, regional general permits, or individual permits. Authorizing the
repair of currently serviceable structures or fills and the replacement
of structures or fills damaged by storms, floods, or other discrete
events is not contradictory because both of these activities are
maintenance activities that typically have minimal adverse effects on
the aquatic environment. These provisions are also consistent with the
Section 404(f) exemptions for maintenance. We do not agree that it is
necessary to increase the two-year limit for maintenance activities
because this amount of time is adequate for most maintenance
activities. In addition, NWP 3 contains a provision that allows
district engineers to waive this time limit. The use of cofferdams
during maintenance activities may be authorized by NWP 33.
Some commenters recommended removing the proposed limitations in
paragraph (ii) of NWP 3. Several commenters suggested adding acreage
limits to paragraph (ii) and others suggested that the 200 linear foot
limit should be reduced to 50 feet. One commenter stated that this
provision is unnecessary and that NWP 3 should not be modified to
authorize this activity. Another commenter said that paragraph (ii)
should not authorize the installation of rip rap.
We believe that the 200 linear foot limit for the removal of
accumulated sediments in the vicinity of existing structures is
appropriate and will ensure that this NWP authorizes only activities
with minimal adverse effects on the aquatic environment. The removal of
accumulated sediments allows structures to continue to function
properly and ensure the safety of the users of the structure. The
installation of rip rap is often necessary to protect these structures
after the accumulated sediment is removed and should be authorized by
this NWP as part of the single and complete project.
One commenter supported paragraph (iii) of the proposed
modification of NWP 3, which authorizes activities in waters of the
United States associated with the restoration of uplands damaged by
storms and other discrete events. One commenter said that paragraph
(iii) is unnecessary because these activities should be considered
exempt and bank stabilization can be authorized by NWP 13. One
commenter stated that the activities authorized by paragraph (iii) will
have more than minimal adverse effects on the aquatic environment. Two
commenters objected to the proposed modification, stating that it would
prevent natural stream processes from occurring and allow stream
channelization. A commenter said that this NWP should not authorize
bank stabilization activities in floodplains. Another commenter stated
that separate authorization should not be required if excavated
material is used to replace material that is lost as a result of
erosion. One commenter recommended modifying the text of paragraph
(iii) to state that the NWP does not authorize the replacement of
uplands lost through gradual erosion processes.
The intent of paragraph (iii) of NWP 3 is to authorize activities
in waters of the United States associated with the replacement of
uplands that are damaged as a result of storms and other catastrophic
events. The restoration of uplands damaged as a result of storms and
other catastrophic events is exempt from Section 404 permit
requirements, as long as the upland area is replaced to its original
extent. For example, a hurricane may cause substantial erosion and
destroy a section of a road constructed in uplands or on a permitted
fill. The restoration of those uplands or the permitted fill and the
replacement of the destroyed road are exempt from Section 404 permit
requirements, provided the area is repaired to its original extent.
However, the restoration work may involve activities in waters of the
United States, which are authorized by paragraph (iii), provided those
activities comply with the terms and conditions of NWP 3. We maintain
our position that this is a maintenance activity that should be
authorized by NWP 3. Paragraph (iii) does not authorize new stream
channelization or stream relocation activities. We believe that bank
stabilization is a necessary component of this activity and should be
authorized by paragraph (iii) as part of the single and complete
project. We concur with the last comment in the previous paragraph and
have made the appropriate modification of the text of paragraph (iii).
One commenter indicated that the district engineer should have
discretion over which flood damage repair activities require
notification and another commenter said that notification should not be
required for any of these activities. One commenter suggested that the
50 cubic yard limit for removal of obstructions should be replaced with
500 linear foot and \1/3\ acre limits.
We contend that notification should be required for all of the
activities authorized by paragraph (iii) to ensure that these
activities result in minimal adverse effects on the aquatic
environment. We do not agree that the 50 cubic yard limit for the
removal of obstructions should be replaced with 500 linear foot or \1/
3\ acre limits.
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
[[Page 12843]]
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 is subject to General Condition
25, which requires notification for activities in designated critical
resource waters. NWP 3 is reissued with the modifications discussed
above.
7. Outfall Structures and Maintenance: In the July 21, 1999,
Federal Register notice, we proposed to modify NWP 7 to authorize
maintenance excavation, including dredging, to remove accumulated
sediments from intake or outfall structures and canals associated with
these structures.
Several commenters stated that the maintenance activities
authorized by the proposed modification of this NWP are exempt from
permit requirements. Numerous commenters indicated that the removal of
accumulated sediments should be authorized by NWP 3 and that the
modification of this NWP is unnecessary. Several commenters requested
clarification regarding what types of maintenance activities are
authorized by this NWP. Another commenter said that the Corps should
withdraw the proposed modification. This commenter also recommended
prohibiting removal of material in special aquatic sites and small
impoundments. One commenter said that the construction of outfall
structures that does not involve discharges of dredged or fill material
into waters of the United States should not require a Corps permit.
Maintenance dredging to remove accumulated sediments from intake
and outfall structures in Section 10 waters is not exempt from Corps
permit requirements. Although the removal of accumulated sediments in
the vicinity of existing structures is authorized by paragraph (ii) of
NWP 3, there are maintenance dredging or excavation activities
associated with intake and outfall structures that do not meet the
terms and conditions of NWP 3 and could be authorized by NWP 7. The
text of this NWP clearly states which maintenance activities are
authorized by NWP 7. District engineers will review PCNs for
maintenance activities in special aquatic sites and small impoundments
to ensure that the adverse effects on the aquatic environment are
minimal. Outfall structures constructed in Section 10 waters require a
Corps permit, even if there are no associated discharges of dredged or
fill material into waters of the United States.
One commenter said that acreage and linear limits should be imposed
on this NWP. Several commenters contend that this NWP should not
authorize activities in tidal waters or special aquatic sites. One
commenter stated that this NWP should not authorize maintenance
activities associated with aquaculture facilities or power plants. A
commenter remarked that maintenance excavation and dredging activities
could result in more than minimal adverse effects on the aquatic
environment and that notification should be required for all activities
authorized by this NWP. Another commenter objected to the requirement
for notification for all activities authorized by this NWP.
We do not agree that it is necessary to impose acreage or linear
foot limits on the activities authorized by this NWP or restrict the
applicable waters because all activities authorized by this NWP require
notification to the district engineer. The removal of accumulated
sediments from outfall and intake structures associated with
aquaculture facilities and power plants is necessary to ensure the
efficient operation of these installations. The district engineer will
review these PCNs to ensure that the NWP authorizes only those
activities with minimal adverse effects on the aquatic environment.
One commenter said that delineations of special aquatic sites
should be limited to the impact area or within 200 feet of the proposed
activity. Two commenters stated that it is unnecessary to require
delineations of special aquatic sites since this NWP authorizes
maintenance activities. One commenter remarked that there should be a
provision in the NWP that allows maintenance of existing structures
when the original design capacities and configurations are not
available. Another commenter said that paragraph (d) of the proposed
modification should be removed because this requirement is already
addressed by General Condition 3.
The text of this NWP states that the requirement for delineations
of special aquatic sites is limited to the vicinity of the proposed
work. The delineation of special aquatic sites, especially vegetated
shallows, is necessary to ensure that the NWP authorizes only
activities with minimal adverse effects on the aquatic environment. If
the original design capacities and configurations of the facility are
not available, district engineers will use their judgement to determine
if the proposed work is authorized by this NWP. The requirements of
paragraph (d) of this NWP and General Condition 3 are not the same.
Therefore, we believe that paragraph (d) is necessary to ensure that
NWP 7 authorizes only activities with minimal adverse effects on the
aquatic environment.
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 is subject to General Condition 25, which
restricts its use in designated critical resource waters. NWP 7 is
reissued with the modifications discussed above.
12. Utility Line Activities: In the July 21, 1999, Federal Register
notice, we proposed to modify NWP 12 to authorize utility line
substations; foundations for overhead utility line towers, poles, and
anchors; and permanent access roads for the construction and
maintenance of utility lines.
Many commenters supported the proposed modifications, but a few
commenters opposed the proposed modifications. Several commenters
believe that this NWP will authorize activities with more than minimal
adverse effects on the aquatic environment. One commenter said that NWP
12 should have a maximum limit of 2 acres for a single and complete
utility line activity and another commenter suggested a \1/3\ acre
limit. One commenter supported the \1/4\ acre PCN threshold and also
recommended requiring notification for activities that result in the
loss of greater than 100 linear feet of stream bed, with agency
coordination for activities that result in the loss of greater than 250
linear feet of stream bed. Another commenter said that the PCN
threshold should be \1/3\ acre. One commenter requested clarification
concerning the emergency authorization of utility line activities.
The terms and conditions of this NWP, including PCN requirements,
will ensure that NWP 12 will authorize only activities with minimal
individual and cumulative adverse effects on the aquatic environment.
We do not agree that an overall acreage limit is appropriate for this
NWP, since many of the impacts to waters of the United States caused by
the construction and maintenance of utility lines will be temporary.
Acreage limits and PCN thresholds for specific activities authorized by
this NWP are discussed below. This NWP can be used to authorize the
emergency installation,
[[Page 12844]]
replacement, or repair of utility lines in waters of the United States.
Emergency procedures for the Corps regulatory program are discussed in
33 CFR 325.2(e)(4).
One commenter said that this NWP is too restrictive for the
installation of underground gas transmission lines. Two commenters
stated that this NWP should authorize wireless communication towers.
Another commenter suggested that well drilling fluid flowlines should
be authorized by this NWP. One commenter said that pipeline maintenance
activities should be exempt from permit requirements. A commenter
stated that PCNs should be required for all underground utility lines
to ensure that the installation of those utility lines does not drain
wetlands. Another commenter said that sidecast material from utility
line installation should be removed within 30 days. One commenter
indicated that utility lines constructed in waters of the United States
parallel to streambeds should be limited to 500 feet in length to
ensure that those activities result in minimal adverse effects on the
aquatic environment.
This NWP authorizes the construction, maintenance, and repair of
utility lines, including underground gas transmission lines, that have
minimal adverse effects on the aquatic environment. We do not agree
that the terms for underground transmission lines are too restrictive.
This NWP does not authorize wireless communication towers because these
facilities are not utility lines. Well drilling fluid flowlines are not
authorized by this NWP, because they are not utility lines. The
construction or installation of wireless communication towers or well
drilling fluid flowlines in waters of the United States can be
authorized by individual permits, regional general permits, or other
NWPs. Pipeline maintenance activities can be authorized by this NWP or
NWP 3, although some pipeline maintenance activities may be eligible
for the Section 404(f) exemption. This NWP contains specific terms to
ensure that the installation of utility lines does not drain wetlands.
This NWP does not authorize the installation of utility lines that
result in french drains. We believe that the 180 day limit is
appropriate for temporary sidecasting of excavated material, but
division engineers can regionally condition this NWP to reduce this
time period, if such a reduction is necessary to ensure that the NWP
authorizes only activities with minimal adverse effects. Paragraph (d)
of the ``Notification'' section of this NWP will allow district
engineers to review proposed utility lines to be installed in waters of
the United States parallel to stream beds and ensure that these
activities result in minimal adverse effects on the aquatic
environment.
One commenter requested clarification whether a Corps permit is
required if the United States Coast Guard does not require a permit
under Section 9 of Rivers and Harbors Act. Another commenter said that
pipelines are transportation structures.
A Section 10 permit is not required for utility lines constructed
over navigable waters of the United States to transport gaseous,
liquid, liquifiable, or slurry substances, because these structures are
considered bridges which are regulated under Section 9, not Section 10,
of the Rivers and Harbors Act. Pipelines constructed over navigable
waters may be considered bridges under Section 9 of the Rivers and
Harbors Act.
Two commenters supported the inclusion of utility line substations
in the proposed modification of this NWP. One commenter said that the
acreage limit of utility line substations should be \1/4\ acre. Several
commenters recommended adding ``storage facilities'' to paragraph (ii)
to authorize these activities with utility line substations. Two
commenters requested a definition of the term ``substation.'' One
commenter said that this NWP should not authorize the construction of
substations in floodplains. Another commenter stated that electric and
pumping substations should be sited in uplands.
We have changed the acreage limit for the construction or expansion
of utility line substations to \1/2\ acre, to ensure that this NWP
authorizes only activities with minimal adverse effects on the aquatic
environment. Notification is required for discharges of dredged or fill
material resulting in the loss of greater than \1/10\ acre of non-tidal
waters of the United States for the construction or expansion of
utility line substations.
We do not agree that storage facilities should be included with
utility line substations. These facilities may be authorized by NWPs,
regional general permits, or individual permits. 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. There are situations where utility line
substations must be located in waters of the United States within 100-
year floodplains or other waters of the United States. Utility line
substations constructed in waters of the United States within 100-year
floodplains must comply with General Condition 26.
One commenter recommended limiting foundations for overhead utility
line towers, poles, and anchors to 1 acre or 250 linear foot of stream
bed. This commenter also said that losses of waters of the United
States resulting from the installation of overhead utility line towers,
anchors, and poles should be included with the impacts caused by
utility line substations when determining if an activity meets the
acreage limits of this NWP.
We do not believe it is necessary to impose an acreage limit on
foundations for overhead utility line towers, poles, and anchors, but
division engineers can regionally condition this NWP to impose such
limits if it is necessary to ensure that the NWP authorizes only
activities with minimal adverse effects on the aquatic environment. We
do not agree that foundations for overhead utility line towers, poles,
and anchors should be included with the acreage limit for utility line
substations. For those utility line activities that require
notification, district engineers will review PCNs to ensure that these
activities result in minimal adverse effects on the aquatic
environment.
One commenter objected to the proposed modification to authorize
the construction of permanent access roads in waters of the United
States. Another commenter asked whether permanent or temporary access
roads are authorized by paragraph (iv) of this NWP. One commenter said
that the 1 acre limit is too high and recommended a \1/10\ acre limit
for permanent access roads. Another commenter recommended a 250 linear
foot limit on stream bed impacts for the construction of access roads.
One commenter asked if the 500 linear foot PCN threshold for permanent
access roads constructed above-grade in waters of the United States
applies to an entire project or a single crossing.
Permanent access roads are necessary for the operation and
maintenance of utility lines and should be authorized by this NWP as
part of a single and complete utility line project. Paragraph (iv) of
the NWP authorizes only permanent access roads; temporary access roads
can be authorized by NWP 33. We have changed the acreage limit for
above-grade permanent access roads to \1/2\ acre, to ensure that this
NWP authorizes activities with minimal adverse effects on the aquatic
environment. We do not agree that it is necessary to impose a 250
linear foot limit on stream bed impacts for access roads, since most of
the access roads will be constructed perpendicular to
[[Page 12845]]
streams. The 500 linear foot PCN threshold for access roads applies to
each single and complete crossing (see 33 CFR 330.2(i)).
One commenter supported the provision requiring access roads to be
constructed with pervious surfaces. Two commenters objected to this
requirement. One of these commenters noted that it may not be possible
to utilize pervious surfaces, because those materials may not be
practicable, stable, or safe in certain situations.
We have deleted the last sentence of paragraph (iv) to allow this
NWP to authorize permanent access roads constructed with impervious
material. However, to ensure that permanent access roads constructed
with impervious material result in minimal adverse effects on the
aquatic environment, we have added paragraph (g) to the
``Notification'' section to require notification when access roads for
utility lines are constructed with impervious materials.
One commenter requested clarification whether this NWP authorizes
mechanized landclearing necessary to maintain a previously established
utility line right-of-way. One commenter said that this NWP should not
authorize mechanized landclearing of forested wetlands, unless the
acreage and functions of those wetlands are replaced. Several
commenters objected to the requirement for mitigation to offset
permanent adverse effects to waters of the United States, such as the
conversion of forested wetlands to emergent wetlands in permanently
maintained utility line right-of-ways. One commenter objected to the
language in the NWP that excludes temporary adverse effects due to
filling, flooding, excavation, or drainage from the calculation of
permanent losses of waters of the United States. One commenter said
that mitigation plans should be required with all PCNs. Two commenters
supported the Corps position that it does not regulate groundwater
flow. Another commenter said that this NWP should be conditioned to
prohibit impacts to groundwater.
This NWP authorizes mechanized landclearing that is necessary to
maintain an existing utility line right-of-way, provided the cleared
area is kept to the minimum necessary and preconstruction contours are
maintained as close as possible. District engineers will require
mitigation for the permanent conversion of wetland types to ensure that
utility line activities will result in minimal adverse effects on the
aquatic environment. Impacts to waters of the United States due to
temporary filling, flooding, excavation, or drainage should not be
considered as permanent losses, because this NWP requires the
restoration of temporarily affected waters of the United States. We do
not agree that it is necessary to require the submission of mitigation
plans with all PCNs, because compensatory mitigation is not required
for all utility line activities. We maintain our position that we do
not regulate groundwater flows, but district engineers may consider
adverse effects to groundwater when reviewing PCNs.
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 is subject to General Condition 25, which
restricts its use in designated critical resource waters. For utility
line activities resulting in discharges of dredged or fill material
into waters of the United States within 100-year floodplains, General
Condition 26 requires the permittee to notify the district engineer and
demonstrate that the proposed work complies with FEMA or FEMA-approved
local floodplain construction requirements. NWP 12 is reissued with the
modifications discussed above.
14. Linear Transportation Crossings: In the July 21, 1999, Federal
Register notice, we proposed to modify NWP 14 to authorize the
construction, expansion, modification, or improvement of linear
transportation crossings, with a higher acreage limit for public linear
transportation crossings constructed in non-tidal waters, excluding
non-tidal wetlands adjacent to tidal waters.
Two commenters said that the proposed modification of NWP 14 will
authorize activities with more than minimal adverse effects on aquatic
environment. Two commenters said that this NWP should have the same
terms and conditions as NWPs 41 and 43 because these NWPs authorize
similar activities.
The terms and conditions of this NWP will ensure that only
activities with minimal adverse effects on the aquatic environment will
be authorized. Most activities authorized by this NWP require
notification to the district engineer, which will allow case-by-case
review of proposed NWP 14 activities. NWPs 14, 41, and 43 authorize
distinctly different activities and should not contain the same terms.
However, these NWPs can be combined to authorize a single and complete
project, provided the activity complies with General Condition 15.
One commenter supported limiting the modification of this NWP to
the authorization of linear transportation crossings. Another commenter
said that this NWP should not authorize new linear transportation
crossings. A commenter stated that the maintenance of road crossings
should be exempt from permit requirements and that NWP 14 should be
needed only for the construction of new crossings. One commenter
indicated that this NWP should be limited to the construction of span
bridges and should not authorize culverted crossings. A commenter said
that the NWP should authorize integral features associated with the
linear transportation crossing. One commenter objected to the proposed
modification, stating that it should not authorize the expansion of
airport runways. Two commenters said that the term ``public-use
airport'' should be used when describing airport runways that are to be
used by the general public and considered as public transportation
crossings.
We have not changed the categories of authorized activities from
the proposed modification of NWP 14 published in the July 21, 1999,
Federal Register notice. Some road crossing maintenance activities may
qualify for the Section 404(f) exemption and not require a DA permit.
Maintenance activities that require changes in the configuration or
design of the linear transportation crossing are authorized by this
NWP, provided the work meets the terms and conditions of the NWP and
results in minimal adverse effects on the aquatic environment. We do
not agree that this NWP should be limited to span bridges. Culverts and
fords can be used to construct linear transportation crossings that
have minimal adverse effects on the aquatic environment. Features that
are an integral part of the linear transportation crossing, such as
interchanges, rail spurs, stormwater detention basins, and water
quality enhancement measures are authorized by this NWP. However, this
NWP can be combined with other NWPs to authorize a single and complete
project provided the activity complies with the requirements of General
Condition 15. We maintain our position that this NWP should authorize
the expansion of airport runways. We do not agree that it is necessary
to incorporate the term ``public-use airport'' in the text of the NWP.
District engineers will determine on a case-by-case basis whether the
[[Page 12846]]
construction of a linear transportation crossing for an airport is a
public or private activity.
Several commenters objected to the differentiation between public
and private linear transportation crossings for the acreage limits of
the proposed modification of this NWP. Two commenters agreed that
public linear transportation crossings should have higher acreage
limits under this NWP. One commenter requested clearer definitions of
the terms ``public'' and ``private'' as used in the context of this
NWP. This commenter asked if the determination whether a particular
activity is public or private depends upon the users of the linear
transportation crossing or the project proponent. For example, if a
private developer is required to build a road that will be used by the
general public as a condition of subdivision approval, would that road
be considered a public or private road for the purposes of this NWP?
We maintain our position that public linear transportation
crossings should have a higher acreage limit because they fulfill a
larger proportion of public interest factors and the government
agencies that typically sponsor and build these projects have the
resources necessary to ensure that these projects have minimal adverse
effects on the aquatic environment. Public transportation projects
often require detailed planning processes to document compliance with
the National Environmental Policy Act, Section 404 of the Clean Water
Act, and 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 linear transportation crossings are available for use by the
general public. Private linear transportation crossings are restricted
to use by an individual or a specific group of individuals. The users
of the crossing determine whether the crossing is public or private,
not the builder of the transportation crossing. Public roads that are
constructed as a condition of subdivision approval and will be used by
the general public are considered public linear transportation
crossings for the purposes of this NWP.
Many commenters recommended a 2 acre limit for public linear
transportation crossings. One commenter suggested a 3 acre limit. Two
commenters said that the 1 acre limit for public linear transportation
crossings is too low. Several commenters stated that this NWP should
have a \1/3\ acre limit. One commenter said that the length of fill
should not exceed 200 feet and another commenter remarked that the 200
foot restriction for fills should be removed from the NWP. Two
commenters recommended replacing the 200 foot limit with a 500 foot
limit. One commenter suggested a 500 linear foot limit for stream bed
impacts.
We have determined that the maximum acreage limit for this NWP
should be \1/2\ acre, to ensure that this NWP only authorizes
activities with minimal adverse effects on the aquatic environment. For
public linear transportation crossings constructed in non-tidal waters
of the United States, excluding non-tidal wetlands adjacent to tidal
waters, the acreage limit will be \1/2\ acre. For public linear
transportation crossings in tidal waters or non-tidal wetlands adjacent
to tidal waters, the acreage limit will be \1/3\ acre. For private
linear transportation crossings, the acreage limit will be \1/3\ acre.
The 200 foot limit for the length of fill in waters of the United
States will be retained for public linear transportation crossings
constructed in tidal waters or non-tidal wetlands adjacent to tidal
waters and for private linear transportation crossings.
One commenter said that PCNs should be required for all activities
authorized by this NWP. Several commenters recommended a PCN threshold
of \1/3\ acre. Two commenters suggested that PCNs should be required
for discharges of dredged or fill material resulting in the loss of
greater than 500 linear feet of stream bed. Three commenters said that
notification should not be required for all discharges into special
aquatic sites. One commenter requested clarification concerning when a
PCN is required for discharges into waters of the United States that
are not special aquatic sites.
We have modified this NWP to require notification for discharges of
dredged or fill material resulting in the loss of greater than \1/10\
acre of waters of the United States. We are retaining the notification
requirement for all discharges of dredged or fill material into special
aquatic sites. If the proposed work does not involve discharges of
dredged or fill material into special aquatic sites, the prospective
permittee is required to notify the district engineer if the proposed
work will result in the loss of greater than \1/10\ acre of waters of
the United States.
One commenter asked if the acreage limits for this NWP apply only
to permanent losses of waters of the United States. Three commenters
requested clarification whether the requirement for a mitigation
proposal in paragraph (c) applies to the mitigation process (i.e.,
avoidance, minimization, and compensation) or only to compensatory
mitigation. One commenter said that there should be an acreage
threshold for the requirements of paragraph (c). One commenter said
that mitigation should be required for all impacts to waters of the
United States and another commenter stated that mitigation should be
required for discharges resulting in the loss of greater than 1 acre of
waters of the United States.
In accordance with the definition of the term ``loss of waters of
the United States'' in the ``Definitions'' section of the NWPs, the
acreage limit applies only to permanent losses of waters of the United
States. We have inserted the word ``compensatory'' before the phrase
word ``mitigation proposal'' in paragraph (c) to clarify that the
prospective permittee must submit a compensatory mitigation proposal
with the PCN. The requirement for a compensatory mitigation proposal
applies only to those activities that require notification. District
engineers can determine, on a case-by-case basis, that compensatory
mitigation is not necessary to offset losses of waters of the United
States because the work, without compensatory mitigation, will result
in minimal adverse effects on the aquatic environment. We have also
inserted the phrase ``of waters of the United States'' after the term
``temporary losses'' in paragraph (c) to clarify that the required
statement must address temporary losses of waters of the United States.
One commenter suggested that notification should be required if NWP
14 was previously used to authorize a road crossing on the same
waterbody. Another commenter objected to considering each crossing of a
separate waterbody as a distinct single and complete project. One
commenter said that the second sentence of paragraph (h) should be
deleted because it contradicts the definition of the term ``single and
complete project.''
Since notification is required for all discharges of dredged or
fill material into special aquatic sites and discharges resulting in
the loss of greater than \1/10\ acre of waters of the United States,
most activities authorized by this NWP will require notification to the
district engineer. If NWP 14 is used more than once by different
project proponents to cross a single waterbody, the district engineer
will assess the adverse effects on the aquatic environment and
determine if those adverse effects are minimal. The second sentence of
[[Page 12847]]
paragraph (h) does not contradict the Corps definition of the term
``single and complete project'' at 33 CFR 330.2(i).
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 is subject to General Condition 25, which
restricts its use in designated critical resource waters. For linear
transportation crossings resulting in discharges of dredged or fill
material into waters of the United States within 100-year floodplains,
General Condition 26 requires the permittee to notify the district
engineer and demonstrate that the proposed work complies with FEMA or
FEMA-approved local floodplain construction requirements. NWP 14 is
reissued with the modifications discussed above.
27. Stream and Wetland Restoration Activities: In the July 21,
1999, Federal Register notice, we proposed to modify NWP 27 to
authorize the restoration of tidal waters and the restoration and
enhancement of non-tidal streams and non-tidal open waters.
One commenter supported the expansion of this NWP to tidal waters.
This commenter requested clarification regarding which restoration
activities can occur in Section 10 waters and tidal waters. One
commenter said that the title of this NWP should be changed to include
creation activities. This commenter asked for clarification concerning
the types of wetland creation activities that are authorized by this
NWP. This commenter said that a Corps permit should be required only if
the wetland creation activity includes connecting the wetland creation
site to waters of the United States. One commenter said that
restoration activities should be limited to restoring areas to their
historic state and another commenter stated that NWP 27 should
authorize activities that are part of a watershed improvement plan. One
commenter said that this NWP should have enforceable conditions and
permittees should be required to obtain restoration agreements that are
approved by the Corps and the resource agencies. One commenter
recommended a 2 acre limit for this NWP. Another commenter recommended
that the Corps add a note to this NWP that is similar to the note at
the end of NWP 39, which describes open waters of the United States.
This NWP authorizes the restoration of former tidal waters, the
enhancement of degraded tidal wetlands, and the creation of tidal
wetlands. We do not agree that it is necessary to include the word
``creation'' in the title of this NWP, since it is clearly indicated in
the first paragraph of this NWP that wetland creation activities are
authorized. This NWP provides authorization for all wetland creation
activities, provided those activities comply with the terms and
conditions of this NWP. Wetland creation activities that do not involve
discharges of dredged or fill material into waters of the United States
do not require a Section 404 permit. We do not agree that this NWP
should be limited to restoring wetlands to their historic state,
because restoration projects result in net improvements to the aquatic
environment, even though they may not restore former waters to their
historic state. This NWP can authorize the restoration, enhancement,
and creation of aquatic habitats that are part of a watershed
improvement plan.
We do not agree that it is necessary to execute restoration
agreements for all activities authorized by this NWP. Such a provision
would likely to discourage landowners from conducting these activities.
Since this NWP authorizes activities that benefit the aquatic
environment, an acreage limit would be counterproductive. The
activities authorized by this NWP either require notification to the
district engineer or involve oversight by other Federal agencies, which
will ensure that only activities that benefit the aquatic environment
are authorized by this NWP. A definition of the term ``open water'' is
included in the ``Definitions'' section of the NWPs. Therefore, it is
not necessary to include a note in this NWP.
One commenter said that this NWP should authorize the restoration
and enhancement of tidal wetlands and streams. Another commenter stated
that NWP 27 should authorize restoration, enhancement, and creation
activities in drainage ditches, because it is difficult to distinguish
between drainage ditches and streams in the mid-West. Several
commenters believe that significant stream destruction can be
authorized by this NWP and suggested imposing a limit of 250 linear
feet on stream impacts.
This NWP authorizes the restoration and enhancement of tidal
wetlands, but it does not authorize the restoration of tidal streams,
particularly the open water areas of tidal streams. However, the
restoration and enhancement of riparian zones next to tidal streams is
authorized by this NWP. The restoration of tidal streams is not
authorized by NWP 27 because changes in tidal aquatic habitats may
result in more than minimal adverse effects on the aquatic environment.
The restoration of tidal streams can be authorized by individual
permits or regional general permits. This NWP authorizes the
restoration and enhancement of non-tidal streams that were channelized
to create drainage ditches, including the restoration and enhancement
of riparian zones next to those streams. Since the activities
authorized by NWP 27 benefit the aquatic environment and most
activities require notification or oversight by other agencies, we do
not agree that it is necessary to impose a linear limit on stream
impacts.
One commenter said that this NWP should authorize only those
activities that are conducted or sponsored by Federal or state
agencies. Two commenters support the use of this NWP to authorize the
restoration of aquatic habitats on public or private land. One
commenter stated that the recommendation in paragraph (c) to plant
native species on the project site should be modified to require the
permittee to use local sources of plant materials.
Limiting this NWP to activities conducted or sponsored by Federal
or state agencies would preclude the use of an NWP for many aquatic
habitat restoration, enhancement, and creation activities conducted by
private individuals that benefit the aquatic environment. We do not
agree that permittees should be required to use local sources of plant
materials.
One commenter objected to the provision that allows the relocation
of aquatic habitats on the project site, stating that this provision is
contrary to the avoidance and minimization requirements of the NWPs.
Another commenter said that the relocation of aquatic habitats should
be authorized only when it is ecologically preferable than avoidance
and minimization. This commenter also requested that the NWP contain a
provision that requires the relocated waters to be equal or greater in
acreage than the waters of the United States filled as a result of the
authorized activity. One commenter indicated that the relocation of
aquatic habitats on the project site should not be authorized by this
NWP.
Allowing the relocation of non-tidal waters on the project site is
not contrary to General Condition 19 because NWP 27 requires authorized
activities to result in net gains in aquatic resource functions and
values. We are retaining
[[Page 12848]]
the provision that allows the relocation of non-tidal waters on the
project site.
One commenter opposed the use of rip rap for activities authorized
by this NWP and another commenter supported the use of rip rap. One
commenter said that the removal of accumulated sediments requires a
Corps permit only when the work is conducted in navigable waters (i.e.,
Section 10 waters). Another commenter asked if the removal of
accumulated sediments is authorized only once or if this activity can
occur for the duration of the project to maintain the restored areas.
One commenter stated that this NWP should also authorize the management
of the restored, created, or enhanced waters.
Rip rap provides habitat for many species of aquatic organisms and
its use should be authorized by this NWP, provided the authorized work
results in net gains in aquatic resource functions and values. The
Corps regulatory authority regarding excavation activities in waters of
the United States is addressed in a previous section of this Federal
Register notice. The removal of accumulated sediments is authorized by
this NWP as often as necessary to maintain the restored areas, although
the permittee should endeavor to locate the sediment source and try to
stabilize that area to reduce inputs of sediment in the restored
waters. This NWP authorizes activities necessary to maintain the
restored, enhanced, or created aquatic habitats.
One commenter asked for a definition of the term ``small'' water
control structure. This commenter recommended defining a small water
control structure as a structure that impounds water to a maximum depth
of 2.5 feet or less. This commenter also requested clarification
concerning the extent of mechanized landclearing activities that are
authorized by this NWP to remove undesirable vegetation. This commenter
said that mechanized landclearing should be limited to establishing or
maintaining native herbaceous wetland plant species and selected plant
species that provide food for wildlife. This commenter recommended
limiting mechanized landclearing to vegetation that has a diameter at
breast height of 4 inches or less.
We do not believe that it is necessary to specify the dimensions of
small water control structures that are authorized by this NWP. For
those activities that require notification, the district engineer will
determine whether the water control structure is authorized by this
NWP. This NWP authorizes mechanized landclearing to remove undesirable
vegetation and we recommend replacing the removed vegetation with
native plant species. We do not agree that mechanized landclearing
activities authorized by this NWP should be limited to vegetated that
has a diameter at breast height of 4 inches or less, because the
proposed work may require the removal of larger undesirable trees.
One commenter supported the provision that the conversion of
natural wetlands to another aquatic use is not authorized by NWP 27.
Two commenters stated that the construction of water impoundments
should not be authorized by this NWP. One commenter opposed the
prohibition against the impoundment of streams or the conversion of
forested wetlands to construct waterfowl impoundments, because this
commenter believes that these activities benefit the aquatic
environment. This commenter supports the term of NWP 27 that prohibits
the channelization of streams.
We maintain our position that this NWP should not authorize the
impoundment of streams or the conversion of forested wetlands to
construct waterfowl impoundments. These activities often result in more
than minimal adverse effects to the aquatic environment by destroying
or degrading habitat that is utilized by many other species of
wildlife. However, open water impoundments can be created from uplands
on the project site or by converting a non-tidal emergent or scrub-
shrub wetland, provided that wetland type is recreated elsewhere on the
project site and there are net gains in aquatic resource functions and
values on the project site.
One commenter stated that all reversion activities on agricultural
lands should be authorized by NWP 40 and all reversion activities on
reclaimed surface coal mined lands should be authorized by NWP 21.
Another commenter requested clarification of the provision that
authorizes the reversion of wetlands restored, created, or enhanced on
prior converted cropland. This commenter also suggested that a five
year time limit for reversions should apply to agreements with the U.S.
FWS or NRCS that do not have time limits. One commenter stated that the
paragraph of NWP 27 that address reversion activities implies that the
Corps is asserting jurisdiction over wetlands that were created on
prior converted cropland, even though a Corps permit was not required
to restore wetlands on that cropland. This commenter said that the
Corps cannot consider all created wetlands to be jurisdictional
wetlands.
It is more appropriate to authorize reversion activities by NWP 27,
since this NWP was likely to be used to authorize the initial wetland
restoration, enhancement, or creation activity. This NWP authorizes the
reversion of wetlands that were restored, enhanced, or created on prior
converted cropland that has not been abandoned, because prior converted
croplands are not waters of the United States and a Section 404 permit
is not required for discharges of dredged or fill material into prior
converted cropland. We do not agree that it is necessary to impose a
five year limit for reversions on U.S. FWS or NRCS agreements that do
not have time limits. A Section 404 permit is not required to revert
wetlands that are not considered waters of the United States.
One commenter supported the note in the proposed modification of
NWP 27, which states that compensatory mitigation is not required for
activities authorized by this NWP, provided there are net increases in
aquatic resource functions and values in the project area. Two
commenters said that this NWP should be used to authorize all
compensatory mitigation projects. One commenter supports the use of NWP
27 to authorize the establishment of mitigation banks. Many commenters
objected to the use of NWP 27 to authorize discharges of dredged or
fill material into waters of the United States to construct mitigation
banks. Several commenters oppose this provision, stating that
mitigation banks should be subject to public comment because they
affect local development patterns and land prices. The Corps received
comments that it appeared that NWP 27 could be used to authorized
mitigation banks that may not have been approved by an Interagency
Mitigation Banking Review Team. That was not our intent. NWP 27 can
only be used to authorize impacts at a mitigation bank that has been
approved under the National Interagency Federal Mitigation Banking
Guidance.
We maintain our position that NWP 27 may be used to authorize
compensatory mitigation projects, including mitigation banks, that
involve activities in waters of the United States, provided the work
results in a net increase in aquatic resource functions and values in
the project area. The use of NWP 27 to authorize mitigation banks does
not override the Federal guidance for the establishment, use, and
operation of mitigation banks that was issued in 1995. We do not agree
that it is necessary to require individual permits for all mitigation
banks, because they benefit the aquatic environment.
In response to a PCN, district engineers can require special
conditions on a case-by-case basis to ensure that
[[Page 12849]]
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 is subject to General Condition
25, which requires notification for activities in designated critical
resource waters. NWP 27 is reissued with the modifications discussed
above.
39. Residential, Commercial, and Institutional Developments: In the
July 21, 1999, Federal Register notice, we proposed to issue an NWP to
authorize 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 building pads, building foundations,
and attendant features for residential, commercial, and institutional
developments.
Many commenters opposed the issuance of the proposed NWP. Two
commenters said that this NWP should authorize discharges of dredged or
fill material into non-tidal wetlands that are adjacent to tidal
waters.
We believe that the scope of waters for this NWP is appropriate to
ensure that NWP 39 authorizes only those residential, commercial, and
institutional development activities that have minimal adverse effects
on the aquatic environment.
One commenter said that this NWP should authorize only single and
complete projects that consist of buildings and attached or integral
attendant features. This commenter indicated that this NWP should not
authorize the expansion of existing developments. Several commenters
stated that golf courses should not be authorized by this NWP because
they are not necessary for residential developments. Another commenter
said that this NWP should authorize discharges of dredged or fill
material into waters of the United States for the construction of ski
areas, since they are not more environmentally harmful than golf
courses.
We maintain our position that this NWP should authorize building
pads and attendant features for residential, commercial, and
institutional development activities. Attendant features should not be
limited to structures or fills that are attached to buildings. This NWP
can be used to authorize the expansion of existing developments,
provided the adverse effects on the aquatic environment are minimal,
individually and cumulatively. Many residential subdivisions are
constructed with golf courses as important attendant features. These
types of residential communities are marketed as golf course
communities. We do not agree that ski areas are attendant features of
residential communities in the same manner as golf courses. Ski resorts
are usually constructed first, with residences constructed at a later
time.
A large number of commenters supported the indexed acreage limit
for NWP 39 that was proposed in the July 21, 1999, Federal Register
notice. Many commenters opposed the proposed indexed acreage limit. Two
commenters objected to the indexed acreage limit, stating that minimal
impact determinations are based on the size and quality of the aquatic
resources, not the size of the parcel owned by the applicant. A
commenter remarked that the indexed acreage limit will encourage
developers to build larger projects to qualify for higher acreage
limits. Three commenters said that an indexed acreage limit based on
project size will not ensure minimal adverse effects on the aquatic
environment. Numerous commenters stated that the maximum 3 acre limit
is too high. Several commenters said that the maximum indexed acreage
limit should be 1 acre. Another commenter suggested a maximum indexed
acreage limit of 10 acres. Several commenters recommended that the
Corps impose a simple 5 acre limit for this NWP. A number of commenters
suggested a simple 10 acre limit for discharges of dredged or fill
material into ephemeral streams.
To ensure that this NWP authorizes only activities with minimal
adverse effects on the aquatic environment, we have decided to impose a
simple \1/2\ acre limit on NWP 39. We have not adopted the indexed
acreage limit, which will make NWP 39 easier to implement for both the
Corps and the regulated public.
Various commenters suggested 100, 200, 250, and 500 linear foot
limitations for stream impacts. One commenter said that NWP 39 should
have a limit for perennial and intermittent stream bed impacts.
We have added a 300 linear foot limit for stream bed impacts (i.e.,
filling and excavating perennial and intermittent stream bed) to this
NWP at paragraph (b). Division engineers can regionally condition this
NWP to decrease the 300 linear foot limit for filling and excavating
stream bed.
Several commenters suggested a PCN threshold of \1/3\ acre. Another
commenter said that PCNs should be required for all NWP 39 activities.
One commenter stated that notification should be required for
discharges resulting in the loss of greater than 500 linear feet of
stream bed. One commenter said that a PCN should be required for
discharges of dredged or fill material that result in the permanent
loss of open waters, not all discharges into open waters. A commenter
requested clarification of the PCN thresholds of NWP 39. One commenter
said that notification should not be required for discharges into
intermittent streams. One commenter recommended removing the phrase
``including wetlands'' at the end of paragraph (c) of the proposed NWP.
To ensure that district engineers will have the opportunity to
review all activities that could result in more than minimal adverse
effects on the aquatic environment, we have reduced the PCN threshold
to \1/10\ acre. We are retaining the requirement for notification for
all discharges into open waters. The latter notification requirement
applies to both temporary and permanent losses of open waters.
Notification is not required for all activities authorized by NWP 39.
Discharges of dredged or fill material that result in the loss of \1/
10\ acre or less of non-tidal wetlands do not require the submission of
a PCN to the district engineer, although a post-construction
notification is required (see paragraph (i)). We have removed the
phrase ``including wetlands'' at the end of paragraph (d) (paragraph
(c) of the proposed NWP).
One commenter said that paragraph (d) of the proposed NWP 39 (now
designated as paragraph (e)) should not imply that this NWP can be used
more than once for the same activity.
Paragraph (e) requires the discharge of dredged or fill material
into waters of the United States for the residential, commercial, or
institutional development activity to be for a single and complete
project. NWP 39 can be used more than once for a single and complete
project, provided the combined losses of waters of the United States
from all of the phases of that single and complete project do not
exceed the \1/2\ acre or the 300 linear foot limits for NWP 39.
One commenter expressed support for the statement of avoidance and
minimization that is required by paragraph (e) of the proposed NWP 39
(now designated as paragraph (f)). Two commenters stated that the
requirement for a written avoidance and minimization statement is
similar to an alternatives analysis and would be cost-prohibitive for
many mid-sized activities. Another commenter opposed this requirement
because the NWP
[[Page 12850]]
regulations already require avoidance and minimization.
We are retaining the requirement for the submission of a written
statement explaining how avoidance and minimization of losses of waters
of the United States was achieved on the project site. This statement
should consist of a brief explanation that discusses how the activity
was planned to avoid and minimize losses of waters of the United States
on-site to the maximum extent practicable. An exhaustive analysis is
not required. The required statement will document compliance with
General Condition 19 and will help expedite reviews of PCNs by district
engineers.
One commenter supported the mitigation requirements for NWP 39. Two
commenters stated that compensatory mitigation should be required for
all activities authorized by this NWP. Another commenter said that
compensatory mitigation should be required for activities that require
notification. Two commenters stated that the provision of paragraph (e)
of the proposed NWP 39 (now designated as paragraph (f)) that provides
the prospective permittee with the opportunity to submit justification
explaining why compensatory mitigation is unnecessary should be deleted
because it is inconsistent with the compensatory mitigation
requirements of the other NWPs. One commenter recommended including a
reference to the mitigation provisions in General Conditions 13 and 19
in paragraph (e) of the proposed NWP 39. Another commenter said that
all prospective permittees should be required to submit detailed
mitigation plans with the PCN.
As discussed elsewhere in this Federal Register notice,
compensatory mitigation will normally be required for those activities
that require notification to the district engineer, to ensure that the
authorized work results in minimal adverse effects on the aquatic
environment. If the proposed work will result in minimal adverse
effects on the aquatic environment without compensatory mitigation,
then the district engineer can issue an NWP verification without
special conditions that require compensatory mitigation. Allowing the
prospective permittee to submit a statement with the PCN to assert that
compensatory mitigation is unnecessary to ensure minimal adverse
effects is not contrary to the compensatory mitigation requirements of
the NWPs. District engineers can determine that compensatory mitigation
is necessary to ensure that the adverse effects on the aquatic
environment are minimal, even though the prospective permittee may
believe that compensatory mitigation should not be required. We have
added text to paragraph (f) that refers to General Condition 19, which
contains the mitigation requirements for the NWPs. As discussed in the
section addressing the NWP general conditions, we have moved the
compensatory mitigation information from paragraph (g) of General
Condition 13 to General Condition 19. We maintain our position that the
prospective permittee can submit either conceptual or detailed
compensatory mitigation plans with the PCN. Detailed compensatory
mitigation plans can be required as special conditions of the NWP
authorization.
One commenter requested clarification of the phrase ``minimal
degradation of water quality,'' which appears in paragraph (g) of the
proposed NWP 39, because it could be subject to broad interpretation.
The requirements of paragraph (g) (now designated as paragraph (h))
are intended to reinforce the fact that the NWPs can authorize only
activities with minimal adverse effects on the aquatic environment, by
focusing on two important aspects of the aquatic environment that can
be altered by NWP activities, namely water quality and stream flows.
Two commenters object to the requirements of paragraph (h) of the
proposed NWP 39 (now designated as paragraph (i)) because it infers
that mitigation is required for activities that do not require
notification. Another commenter identified an inconsistency in this
paragraph, because it contains a reference to stream impacts and this
commenter noted that NWP 39 requires notification for all discharges of
dredged or fill material into streams.
Compensatory mitigation is not required for those NWP activities
that do not require notification to the district engineer. However,
compensatory mitigation to offset losses of waters of the United States
may be required by state or local permits, which should be reported to
the Corps through the post-construction notification required by
paragraph (i). We have removed the references to stream bed impacts
from paragraph (i), since the NWP requires notification for all
discharges into open waters.
One commenter opposed the provisions of paragraph (i) of the
proposed NWP 39 (now designated as paragraph (j)), which requires the
permittee to establish and maintain, to the maximum extent practicable,
vegetated buffers next to open or streams within the project area.
Another commenter said that Federal and state lands should be required
to have a management plan instead of deed restrictions for vegetated
buffers.
The requirements for vegetated buffers next to open waters are
discussed in detail in a previous section of this Federal Register
notice. There is flexibility in the requirements of paragraph (j). If
there are open waters or streams within the project area and it is
impractical for the project proponent to establish and maintain
vegetated buffers next to those waters, then those vegetated buffers
are not required. However, other types of compensatory mitigation may
be required to ensure that the work results in minimal adverse effects
on the aquatic environment. District engineers will determine, on a
case-by-case basis, when it is practicable to establish and maintain
vegetated buffers and the appropriate width of those vegetated buffers.
Several commenters opposed paragraph (j) of the proposed NWP 39
(now designated as paragraph (k)), which prohibits stream
channelization or stream relocation downstream of the point on the
stream where the average annual flow is 1 cubic foot per second (cfs).
One commenter supported this provision. Some of these commenters
indicated that this provision will be difficult to implement in areas
with many ephemeral streams. Other commenters stated that this
requirement is difficult to implement because it will be expensive and
time consuming to determine where the 1 cfs point occurs. One commenter
suggested that stream channelization or relocation activities should be
limited to ephemeral streams instead of prohibiting these activities
downstream of the 1 cfs point. Another commenter recommended replacing
the 1 cfs criterion with either a prohibition against channelizing
perennial streams or utilizing drainage area instead of average annual
flow. This commenter suggested applying the prohibition to streams with
a drainage area greater than 250 acres.
We discussed the identification of the 1 cfs point on streams in a
previous section of this Federal Register notice. Drainage area, based
on regional criteria, can be used to approximate the location of the 1
cfs point on a stream. We believe that the prohibition in paragraph (k)
is necessary to ensure that NWP 39 authorizes only activities with
minimal adverse effects on the aquatic environment. This provision is
consistent with the increased emphasis we are placing on the protection
of open and flowing waters.
Several commenters objected to allowing project proponents to
construct
[[Page 12851]]
their activities in phases. Numerous commenters said that NWP 39 should
not be used with NWP 14 because it will authorize activities that
exceed the acreage limit of NWP 39.
District engineers will review PCNs for phased construction
projects to determine if those activities comply with the terms and
conditions of the NWPs. District engineers will also review the PCNs
for these activities to ensure that they result in minimal adverse
effects on the aquatic environment. General Condition 15 states that
when more than one NWP is used to authorize a single and complete
project, that single and complete project is subject to the highest
specified acreage limit of those NWPs. Therefore, when NWP 14 is
combined with NWP 39 to authorize a single and complete project, the
total project acreage limit will be \1/2\ acre.
One commenter asked how a project proponent would know if NWP 40,
as it was issued in 1996, was used to construct a farm building that
was more than 500 feet from a waterbody, if that land was sold to build
a residential, commercial, or institutional development on the land.
One commenter objected to the restrictions relating the use of NWP 39
and NWP 40 on the same parcel, but another commenter supported these
restrictions.
The limitations for the use of NWPs 39 and 40 on the same parcel
apply only to those activities authorized by the NWPs issued today,
because the previous version of NWP 40 authorized discharges of dredged
or fill material into farmed wetlands for the construction of farm
buildings. We are retaining the provisions limiting the use of NWPs 39
and 40 on the same parcel.
Several commenters objected to the subdivision provision in NWP 39,
stating that it will allow the authorization of activities with more
than minimal adverse effects on the aquatic environment. One commenter
requested clarification whether the subdivision provision applies to
all of the terms of NWP 39 or whether it only addresses the acreage
limits for each parcel within the subdivision. This commenter also
indicated that if the district engineer grants an exemption pursuant to
the subdivision provision, then the landowner can use NWP 26 to
authorize the development activity. Another commenter said that only
NWP 29 should be used to authorize activities on individual lots within
an exempted subdivision.
The notification requirements of the subdivision provision will
ensure that NWP 39 will authorize only activities with minimal adverse
effects on the aquatic environment. District engineers can assert
discretionary authority if the proposed work will result in more than
minimal adverse effects on the aquatic environment. The subdivision
provision addresses only the acreage limits for the subdivision, or the
individual parcels within that subdivision if an exemption has been
granted by the district engineer. The subdivision provision does not
keep NWP 26 in effect for those activities that have been granted an
exemption by the district engineer. If an exemption has been granted,
the activities on individual parcels must comply with the terms and
conditions of NWP 39. We do not agree that activities on individual
lots should be eligible only for NWP 29 if an exemption has been
granted, because other types of buildings may be constructed on these
lots, with minimal adverse effects on the aquatic environment.
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 is subject to General Condition 25, which
restricts its use in designated critical resource waters. For NWP 39
activities resulting in discharges of dredged or fill material into
waters of the United States within 100-year floodplains, General
Condition 26 requires the permittee to notify the district engineer and
demonstrate that the proposed work complies with FEMA or FEMA-approved
local floodplain construction requirements. Furthermore, General
Condition 26 prohibits any above-grade fill under NWP 39 within
regulatory floodways above the headwaters. NWP 39 is issued with the
modifications discussed above.
40. Agricultural Activities: In the July 21, 1999, Federal Register
notice, we proposed to modify NWP 40 to authorize discharges of dredged
or fill material into non-tidal waters of the United States, excluding
non-tidal wetlands adjacent to tidal waters, to improve agricultural
production.
A large number of commenters expressed opposition to the proposed
modification of this NWP. Many commenters said that the use of this NWP
will result in substantial losses of wetlands and some commenters
stated that the activities authorized by this NWP will result in more
than minimal adverse effects on the aquatic environment. Numerous
commenters said that the proposed modification of NWP 40 violates the
Clean Water Act because it authorizes discharges of dredged or fill
material that result in the loss of agricultural wetlands. Some
commenters stated that the proposed modification is unnecessary because
on-going farming activities are exempt from Section 404 permit
requirements. One commenter said that the proposed modification is
contrary to other Federal programs, such as the Wetlands Reserve
Program and the Conservation Reserve Program. One commenter indicated
that the text of this NWP should reference the wetland conservation
provisions of the ``Food Security Act of 1985, as amended.''
NRCS will review those activities authorized by paragraph (a) and
district engineers will review most activities authorized by paragraphs
(b), (c), and (d) to ensure that the activities authorized by this NWP
do not result in more than minimal adverse effects on the aquatic
environment. The use of this NWP will not result in substantial losses
of wetlands. Compensatory mitigation will be required for most
activities authorized by this NWP to offset losses of waters of the
United States and ensure that the authorized work results in minimal
adverse effects on the aquatic environment.
The modification of NWP 40 does not violate the Clean Water Act,
because the Clean Water Act does not prohibit discharges of dredged or
fill material into waters of the United States to increase agricultural
production. The Clean Water Act merely requires a permit for such
activities. The conversion of wetlands to increase agricultural
production is not exempt from Section 404 permit requirements. The
proposed modification of NWP 40 is not contrary to the Wetlands Reserve
Program or the Conservation Reserve Program. We have modified the text
of the NWP to refer to the ``Food Security Act of 1985, as amended.''
One commenter said that the proposed modification of NWP 40 should
authorize activities in non-tidal wetlands adjacent to tidal waters to
increase the utility of this NWP in coastal areas. Several commenters
stated that this NWP should be restricted to frequently cropped
wetlands. Many commenters stated that this NWP should not authorize
activities in playas, prairie potholes, and vernal pools. Three
commenters indicated that this NWP should not authorize activities
within 100 feet of playas, prairie potholes, and vernal pools. Another
commenter said that this NWP will authorize the destruction of streams.
[[Page 12852]]
We do not agree that this NWP should authorize discharges of
dredged or fill material into non-tidal wetlands adjacent to tidal
waters. In addition, this NWP should not be restricted to frequently
cropped wetlands. Division engineers can regionally condition paragraph
(b) or (c) of this NWP to prohibit or limit its use in playas, prairie
potholes, and vernal pools. This NWP does not authorize the destruction
of streams. The only stream impacts authorized by this NWP are
discharges of dredged or fill material into waters of the United States
to relocate drainage ditches constructed in non-tidal streams.
One commenter stated that a separate NWP should be developed for
the installation of drainage ditches or drainage tile. Another
commenter asked if this NWP authorizes silvicultural or ranching
activities.
This NWP can be used to authorize discharges of dredged or fill
material into non-tidal wetlands to construct drainage ditches or
install drainage tile, provided the work meets the terms and conditions
of this NWP and does not result in the loss of greater than \1/2\ acre
of non-tidal waters of the United States. This NWP authorizes
silvicultural and ranching activities, because they are considered
agricultural activities.
One commenter opposed the proposed indexed acreage limit for this
NWP and several commenters supported the use of an indexed acreage
limit. One commenter said that the activities authorized by paragraphs
(c) and (d) should be included in the indexed acreage limit for this
NWP. Two commenters supported the maximum 2 acre limit. Many commenters
said that this NWP should have a \1/4\ acre limit. Other commenters
suggested \1/10\, \1/3\, and 1 acre limits. One commenter supported the
1 acre limit for discharges of dredged or fill material into playas,
prairie potholes, and vernal pools. Other commenters said that the
acreage limit for discharges into these types of waters should be
lower, and one commenter recommended a \1/3\ acre limit. Several
commenters stated that this NWP should have a linear foot limit for
stream impacts. Some commenters suggested a 250 linear foot limit and
another commenter recommended a 500 linear foot limit.
Based upon our review of the comments received in response to the
July 21, 1999, Federal Register notice, we have established a \1/2\
acre limit for discharges of dredged or fill material into non-tidal
wetlands (including playas, prairie potholes, and vernal pools) to
increase agricultural production. This acreage limit will ensure that
the activities authorized by this NWP result in minimal adverse effects
on the aquatic environment. We have withdrawn the indexed acreage limit
for discharges of dredged or fill material into playas, prairie
potholes, and vernal pools to increase agricultural production. We have
added a 300 linear foot limit for the relocation of existing drainage
ditches constructed in non-tidal streams.
One commenter supported the use of farm tracts to identify single
and complete projects under NWP 40. This commenter also said that using
farm tracts to define single and complete projects for this NWP is
problematic, especially when a farmer leases land to other farms. This
commenter stated that landowners would need to request tract numbers
and boundary determinations for certain areas, such as range land,
where tract numbers or boundary determinations have not yet been
designated. Several commenters indicated that the acreage limit for
this NWP should be based on farms, not farm tracts. Some of these
commenters said that basing the acreage limit on farm tracts will allow
more than one use of this NWP for a single agricultural operation. One
commenter remarked that the use farm tracts in this NWP does not
satisfy the definition of independent utility because the majority of
farm tracts are not economically self-supporting.
We maintain our position that single and complete projects for this
NWP should be based on farm tracts, not farms. Utilizing farm tracts
will make this NWP easier to implement for the regulated public, NRCS
personnel, and Corps personnel. In addition, the use of farm tracts
will avoid the difficulties associated with the leasing of farm tracts.
Data from the Farm Service Agency shows that there is an average of 1.5
farm tracts per farm nationwide. Therefore, the use of farm tracts to
determine single and complete projects will not result in substantial
losses of wetlands. Since NRCS supports the use of farm tracts for this
NWP and the national average is 1.5 farm tracts per farm, we cannot
agree with the comment that the majority of farm tracts are not
economically self-supporting.
Many commenters objected to the terms of paragraph (a) of the
proposed modification of NWP 40, stating that the Corps, not NRCS,
should review these activities and determine if they can be authorized
by NWP 40. One commenter opposed paragraph (a), stating that it does
not provide the district engineer with the opportunity to exercise
discretionary authority. Two commenters said that the Clean Water Act
does not allow the Corps to delegate portions of the Section 404 permit
program to NRCS. One of these commenters also stated that there should
be a Memorandum of Agreement between the Corps and NRCS to track the
use of this NWP. Two commenters said that NRCS does not have the
authority under the Clean Water Act to evaluate the indirect or
cumulative impacts of activities authorized by this NWP. One commenter
remarked that the provisions of paragraph (a) will increase the
workload of District Conservationists at local NRCS offices. Many
commenters objected to paragraph (a) because division engineers cannot
impose regional conditions on this provision of NWP 40.
These terms and conditions of NWP 40, in conjunction with the
requirements of NRCS, will ensure that the activities authorized by
paragraph (a) will result in minimal adverse effects on the aquatic
environment, without oversight by the Corps. The provisions of
paragraph (a) do not delegate the Section 404 program to NRCS. The
reporting requirements of subparagraph (a)(5) will allow district
engineers to monitor the use of this NWP and assess cumulative adverse
effects. The comments we received from NRCS do not indicate that the
workload increase imposed on District Conservationists will be
unmanageable. To assist in the effective implementation of paragraph
(a), division engineers cannot impose regional conditions on this term
of NWP 40.
One commenter supported the requirement for USDA program
participants to be in compliance with the minimal effects criteria of
NRCS. One commenter said that subparagraph (a)(1) of NWP 40 should
include the terms ``categorical minimal effects exemption, minimal
effect exemptions, and mitigation exemptions,'' which are more accurate
than the proposed language. This commenter recommended that the phrase
``if required'' should be included in subparagraph (a)(5) of the
proposed modification of NWP 40 because not all activities will require
compensatory mitigation. One commenter said that mitigation
requirements should be coordinated between NRCS and the Corps to ensure
that the mitigation requirements of the Food Security Act and the Clean
Water Act are satisfied.
We have modified the text of subparagraph (a)(1) to make it
consistent with the terminology utilized in NRCS regulations. We also
concur with the third comment in the previous paragraph, and have
revised subparagraph (a)(4) accordingly. For
[[Page 12853]]
activities authorized by paragraph (a), the Corps will accept the
compensatory mitigation requirements of NRCS.
One commenter suggested that NRCS should determine if proposed
activities authorized by paragraph (a) will result in unacceptable
impact to 100-year floodplains because NRCS must consider impacts to
flood storage and flood flowage when determining whether an activity
qualifies for a USDA exemption. This commenter also said that if
proposed General Condition 27 is not modified to allow NRCS to
determine the impacts to 100-year floodplains, then the text of NWP 40
should be revised to include the prohibitions imposed by this general
condition.
Since we have modified the proposed General Condition 27 (now
designated as General Condition 26) for fills within 100-year
floodplains, we have added paragraph (e) to NWP 40. This paragraph
states that the permittee must comply with General Condition 26 if the
NWP 40 activity is in a 100-year floodplain identified by FEMA's Flood
Insurance Rate Maps or FEMA-approved local floodplain maps. We believe
that it is adequate to refer the permittee to General Condition 26,
instead of incorporating the provisions of this general condition into
the text of NWP 40. The Corps, as available, will identify the limits
of headwaters for the purposes of General Condition 26.
One commenter said that the PCN threshold for this NWP should be
\1/3\ acre and another commenter stated that the PCN threshold should
be \1/10\ acre. A commenter said that the prospective permittee should
not be required to disclose past use of NWP 40 with a NWP 40 PCN for
additional discharges of dredged or fill material into waters of the
United States on the property. Another commenter said that a mitigation
plan should be submitted with all NWP 40 PCNs. One commenter said that
the phrase ``if required'' should be included in paragraph (b)(5)
because not all activities authorized by NWP 40 will require
compensatory mitigation. Another commenter objected to paragraph (b)
because it contains no provisions for the Corps to verify wetland
determinations.
We have adopted a \1/10\ acre PCN threshold for activities
authorized by paragraph (b) of this NWP. There is no provision in NWP
40 that requires the permittee to notify the Corps of the past use of
NWP 40. Subparagraph (b)(4) of NWP 40 requires the submission of a
mitigation plan with the PCN. We do not agree with the fourth comment
in the previous paragraph, because we are only requiring the submission
of a compensatory mitigation proposal with the PCN. District engineers
can determine, on a case-by-case basis, that compensatory mitigation is
not necessary to ensure that the authorized activity results in minimal
adverse effects on the aquatic environment. Verification of wetland
determinations and wetland delineations on agricultural land that will
remain in agricultural use is the responsibility of NRCS, not the
Corps.
One commenter stated that there should be a separate NWP to
authorize discharges of dredged or fill material into waters of the
United States for the construction of farm buildings. Several
commenters objected to this provision, stating that building pads for
farm buildings can be constructed outside of waters of the United
States. A commenter remarked that the terms for the construction of
farm buildings should be the same as the terms for NWP 29. One
commenter said that the use of farm buildings constructed near wetlands
and streams will contaminate these waters.
We do not agree that a separate NWP for the construction of farm
buildings is necessary. We have reduced the acreage limit from 1 acre
to \1/2\ acre to ensure that this NWP authorizes discharges of dredged
or fill material for the construction of farm buildings that have
minimal adverse effects on the aquatic environment. We disagree with
the comment that all farm buildings can be constructed outside of
wetlands. Farm buildings serve different purposes and are typically
larger than single family residences. Therefore, farm buildings should
not be subject to the same terms and conditions as NWP 29. The
pollution of streams and other waters from agricultural operations are
addressed by other Federal, state, and local programs.
Several commenters stated that this NWP should not authorize the
relocation of streams or ditches. One commenter said that there should
be a limit on the length of ditch that can be relocated, to ensure that
the NWP authorizes only activities with minimal adverse effects.
Another commenter indicated that the impacts due to ditch relocations
should be included in the 2 acre limit for this NWP.
The relocation of drainage ditches is often necessary to increase
agricultural production on the farm tract. We have imposed a 300 linear
foot limit for the relocation of existing drainage ditches constructed
in non-tidal streams. We do not agree that the relocation of drainage
ditches constructed in non-tidal waters of the United States should be
included in the \1/2\ acre limit of paragraph (a) or (b) because these
relocation activities typically do not result in a net loss of aquatic
resource functions and values.
One commenter objected to the proposed NWP, stating that it treats
USDA program participants and non-participants differently. Another
commenter said that the terms and conditions of NWP 40 should not be
established to provide equity between developers and agricultural
producers, but instead should be based on activities that are similar
in nature that have minimal adverse effects on the aquatic environment.
One commenter stated that NWP 40 should be subject to the same terms
and conditions as NWP 39.
The terms of paragraphs (a) and (b) do not treat USDA program
participants and non-participants differently. These two groups are
subject to the same acreage limits and mitigation requirements. The
only differences between paragraphs (a) and (b) are the agencies
reviewing the proposed work and the reporting requirement for USDA
program participants. The terms of NWPs 39 and 40 are established to
ensure that these NWPs authorize activities with minimal adverse
effects on the aquatic environment. Both NWPs 39 and 40 are subject to
the \1/2\ acre limit, but different terms and conditions are necessary
because these NWPs authorize different types of activities.
Two commenters expressed concern that NWP 40 will be used by land
developers to prepare sites for future development by filling wetlands
and keep the land in agricultural production for a few years, and then
request authorization under NWP 39 for additional discharges of dredged
or fill material into waters of the United States to construct a
development. One commenter supported the provision proposed in the July
1, 1998, Federal Register notice that allowed the use of this NWP each
time it was reissued. Another commenter opposed this NWP, indicating
that it can be used repeatedly on a single farm over time. One
commenter said that discharges of dredged or fill material into waters
of the United States for the construction of compensatory mitigation
sites should be calculated in the acreage loss of waters of the United
States.
NWP 40 contains provisions that prevent land developers from
filling wetlands on agricultural land to increase the amount of non-
wetland area on the site for future developments. If NWP 40 was used to
authorize discharges of dredged or fill material into non-tidal waters
on the farm tract to increase agricultural production and the current
landowner wants to use NWP 39 to authorize the construction of
[[Page 12854]]
a residential, commercial, or institutional development, the combined
acreage loss of waters of the United States authorized by NWPs 39 and
40 cannot exceed \1/2\ acre. NWP 40 cannot be used repeatedly on a
single farm tract to exceed the \1/2\ acre limit for a single and
complete project. Discharges of dredged or fill material into waters of
the United States to construct compensatory mitigation sites should not
be calculated in the acreage loss of waters of the United States.
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 is subject to General Condition 25, which
restricts its use in designated critical resource waters. For NWP 40
activities resulting in discharges of dredged or fill material into
waters of the United States within 100-year floodplains, General
Condition 26 requires the permittee to notify the district engineer and
demonstrate that the proposed work complies with FEMA or FEMA-approved
local floodplain construction requirements. Furthermore, General
Condition 26 prohibits any above-grade fill under NWP 40 within
regulatory floodways above the headwaters. NWP 40 is reissued with the
modifications discussed above.
41. Reshaping Existing Drainage Ditches: In the July 21, 1999,
Federal Register notice, we proposed to issue an NWP to authorize
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-section of drainage ditches constructed in these
waters.
Two commenters opposed the issuance of this NWP if certain
channelized streams are considered to be drainage ditches. One
commenter said that these activities should be reviewed through the
individual permit process. Another commenter stated that this NWP will
be abused by landowners who want to reshape the banks of their drainage
ditches under the guise of improving water quality.
The maintenance of drainage ditches that were constructed by
channelizing streams may be eligible for the Section 404(f) exemption.
The purpose of NWP 41 is to provide a general permit that authorizes
the reshaping of existing serviceable drainage ditches constructed in
non-tidal waters of the United States, excluding non-tidal wetlands
adjacent to tidal waters, in a manner that benefits the aquatic
environment. This NWP does not authorize reshaping of drainage ditches
that increases the area drained by the ditch. We do not agree that this
NWP will be abused by landowners, because of the stringent terms of the
NWP. Division engineers can revoke this NWP in areas where the
reshaping of drainage ditches constructed in non-tidal waters of the
United States results in more than minimal adverse effects on the
aquatic environment, individually or cumulatively.
Several commenters said that NWP 41 is unnecessary, because these
activities are authorized by NWP 3 or are exempt from Section 404
permit requirements. A commenter stated that the discussion of the
Section 404(f) exemption for ditch maintenance in the July 21, 1999,
Federal Register notice is inaccurate because it did not include the
recapture provision of Section 404(f)(2). Another commenter indicated
that if the intent of NWP 41 is to improve water quality, then these
activities should be authorized by NWP 27.
NWP 3 does not authorize the reshaping of drainage ditches
constructed in waters of the United States. Maintenance activities
explicitly identified in Section 404(f) are exempt from permit
requirements, subject to the recapture provisions of Section 404(f)(2).
NWP 27 authorizes the restoration, enhancement, and creation of aquatic
habitats, not the reshaping of drainage ditches.
One commenter said that this NWP should apply to all man-made
ditches, whether or not they are currently serviceable, as long as the
cropland draining to the ditch has not been abandoned. A commenter
requested criteria that will be used to determine whether a particular
ditch is currently serviceable. Another commenter recommended expanding
the scope of this NWP to authorize ditch relocation. One commenter said
that sidecasting into waters of the United States should not be
authorized by this NWP. Another commenter suggested that this NWP
should not authorize activities that involve the installation of
concrete lining or other hard structures.
This NWP applies only to the reshaping of existing serviceable
drainage ditches constructed in waters of the United States. It does
not authorize the reconstruction of drainage ditches. We have replaced
the word ``existing'' with the word ``currently'' in the first sentence
of this NWP. For the purposes of NWP 41, the definition of the term
``currently serviceable'' is the same as the definition provided in NWP
3. This NWP does not authorize ditch relocation, because relocating a
drainage ditch is likely to result in draining of areas that were not
previously drained. We have modified NPW 41 to allow for the temporary
sidecasting of material into waters of the United States. Material may
be temporarily sidecast (up to three months) into waters of the United
States, provided 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 sidecasting not to exceed a total of 180 days,
where appropriate. This NWP does not authorize discharges of dredged or
fill material into waters of the United States to line drainage ditches
with concrete or other hard structures.
Several commenters said that the scope of waters for this NWP
should be expanded to include tidally influenced drainage ditches. One
commenter stated that the text of this NWP is misleading because the
Corps has no legal authority to regulate the reshaping of drainage
ditches landward of the ordinary high water mark if there is no wetland
hydrology. Another commenter recommended adding a provision to NWP 41
which states that the maintenance of existing drainage ditches to their
original dimensions and configuration is exempt from Section 404 permit
requirements.
We do not agree that this NWP should be expanded to authorize
discharges of dredged or fill material into tidal waters of the United
States or non-tidal wetlands adjacent to tidal waters. The text of NWP
41 clearly states that it authorizes discharges of dredged or fill
material into non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters. If the ditch reshaping
activity does not involve discharges of dredged or fill material into
waters of the United States, including wetlands, then the project
proponent does not need a Section 404 permit. The text of this NWP
includes a reference to the Corps regulations that address the Section
404(f) exemptions.
One commenter believes that the water quality benefits of the
activities authorized by this NWP are doubtful and that the use of this
NWP will increase the drainage of wetlands. Another commenter stated
that the activities authorized by this NWP will prevent the development
of woody vegetated buffers, which contradicts the goal of no net loss
of wetlands and discourage stream restoration. Three commenters said
that reshaping a drainage ditch will increase its
[[Page 12855]]
hydraulic capacity. One of these commenters indicated that the project
proponent should be required to demonstrate that the proposed work will
not increase the area drained by the ditch. Two commenters indicated
that compensatory mitigation should be required for the activities
authorized by this NWP because drainage ditches drain wetlands.
Drainage ditches can be reshaped to improve water quality, without
increasing the area drained by those ditches. This NWP does not
authorize ditch reshaping activities that expand the area drained by
the ditch. The removal of woody vegetation next to the stream is often
necessary to maintain or reshape the drainage ditch. We do not agree
that it is necessary to require project proponents to provide
documentation that demonstrates that the activity will not increase the
area drained by the ditch because the work is limited to restoring the
ditch to its original capacity. Compensatory mitigation should not be
required for activities authorized by this NWP, because it does not
authorize the drainage of additional wetlands.
Three commenters recommended a 500 linear foot limit on this NWP
and one commenter suggested a 250 linear foot limit. One commenter said
that there should not be a limit on this NWP if the activity does not
involve sidecasting into waters of the United States. One commenter
stated that the PCN threshold should be reduced to 250 linear feet. Two
commenters indicated that a delineation of special aquatic sites should
not be required for those activities that require notification.
We do not agree that a linear foot limit should be placed on this
NWP, because it authorizes activities that typically benefit the
aquatic environment. We are retaining NWP 41 on the list of NWPs that
require the submission of a delineation of special aquatic sites with
the PCN.
One commenter said that NWP 41 should be conditioned to require
permittees to obtain certification for best management practices from
NRCS. Another commenter stated that this NWP should include a condition
prohibiting the construction of berms and levees that would impede
overbank flow. One commenter said that this NWP should authorize the
reconfiguration of improperly designed drainage ditches, with the
submission of a notification that documents the need for
reconfiguration, to minimize adverse effects due to headcutting and
increases in sediment loads.
We do not agree that it is necessary to require permittees to
obtain certification for best management practices from NRCS. General
Condition 21 states that NWP activities cannot permanently restrict or
impede the passage of normal or expected high flows. Temporarily
sidecast material should be placed so that it does not impede overbank
flows. No berms, levees, or other similar structures are authorized by
NWP 41. The reconfiguration of improperly designed drainage ditches can
be authorized by individual permits, regional general permits, or other
NWPs.
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. NWP 41 is issued with the modifications discussed
above.
42. Recreational Facilities: In the July 21, 1999, Federal Register
notice, we proposed to issue an NWP to authorize 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 or
expansion of recreational facilities that are integrated into the
existing landscape.
One commenter said that this NWP will authorize activities with
more than minimal adverse effects on the aquatic environment and induce
development of neighboring areas. One commenter stated that the word
``passive'' should be retained in the title of the NWP. One commenter
noted that the word ``of'' should be replaced with the word ``or''
after the word ``construction'' in the first sentence. Two commenters
said that this NWP should authorize discharges of dredged or fill
material into non-tidal wetlands adjacent to tidal waters.
The terms and conditions of this NWP, as well as the ability of
division and district engineers to place regional and case-specific
conditions on this NWP, will ensure that this NWP authorizes only
activities with minimal adverse effects on the aquatic environment. We
will not restore the word ``passive'' to the title of this NWP because
it is an ambiguous term that does not provide any value to the NWP. We
have replaced the word ``of'' with the word ``or'' in the first
sentence of the NWP. The scope of applicable waters for this NWP is
limited to ``non-tidal waters of the United States, excluding non-tidal
wetlands adjacent to tidal waters'' to ensure that this NWP authorizes
only activities with minimal adverse effects on the aquatic
environment.
Many commenters objected to including the construction and
expansion of golf courses and the expansion of ski areas in the list of
activities authorized by this NWP. One commenter stated that the
improvement of ski areas should be authorized by this NWP, in addition
to the expansion of these facilities. One commenter said that other
types of recreational facilities should be authorized by this NWP if
they do not result in substantial amounts of grading and filling and
the adverse effects on the aquatic environment are minimal. This
commenter indicated that ball fields should be authorized by this NWP.
Another commenter said that impervious surfaces should be authorized in
areas where they are required for stabilization or meeting access
requirements for disabled persons. One commenter stated that the term
``substantial'' needs to be defined so that it is consistently
implemented by district engineers.
As discussed in the July 21, 1999, Federal Register notice, NWP 42
authorizes the construction and expansion of golf courses and the
expansion of ski areas that are integrated into the natural landscape.
These types of recreational facilities can be constructed without
substantial amounts of grading and filling. NWP 42 does not authorize
the construction of new ski areas, but this NWP may authorize
discharges of dredged or fill material into waters of the United States
to improve existing ski areas, provided the activity meets the terms
and conditions of this NWP.
This NWP does not authorize the construction or expansion of
playing fields because these activities typically require substantial
grading and filling to create level playing surfaces, as well as the
installation of drainage systems. The construction or expansion of
basketball courts, tennis courts, racetracks, stadiums, and areas
involve the construction of substantial amounts of impervious surfaces
and therefore are not authorized by this NWP. Recreational facilities
not authorized by this NWP may be authorized by other NWPs, regional
general permits, or individual permits.
This NWP does not authorize discharges of dredged or fill material
into waters of the United States to stabilize areas within the
recreational facility. NWP 13 may authorize bank stabilization
activities associated with the recreational facility. Small amounts of
impervious surface may be constructed in recreational facilities
[[Page 12856]]
authorized by this NWP to satisfy access requirements for disabled
persons. District engineers will determine on a case-by-case basis
whether the construction or expansion of a proposed recreational
facility will result in substantial changes in preconstruction grades.
Two commenters supported the proposed 1 acre limit. Several
commenters stated that the proposed acreage limit is too large. One
commenter said that the acreage limit should be \1/2\ acre and two
commenters suggested a \1/3\ acre limit. A commenter recommended a 100
linear foot limit for stream bed impacts and two commenters suggested a
250 linear foot limit for stream bed impacts.
To ensure that this NWP authorizes activities with minimal adverse
effects on the aquatic environment, we have reduced the acreage limit
to \1/2\ acre and added a 300 linear foot limit for filling or
excavating perennial or intermittent stream beds.
Two commenters said that this NWP should have the same PCN
thresholds as NWP 39. Two commenters recommended a PCN threshold of \1/
3\ acre. One commenter supported the 500 linear foot PCN threshold for
perennial and intermittent stream bed impacts. Three commenters stated
that the PCN threshold for stream bed impacts should be reduced to 250
linear feet.
We have reduced the PCN threshold to \1/10\ acre. Since we have
added a 300 linear foot limit for stream bed impacts, we have deleted
the 500 linear foot PCN threshold for perennial and intermittent stream
bed impacts.
One commenter said that the phrases ``has low impact on the aquatic
environment'' and ``consists primarily of open space that'' should be
deleted from NWP 42 because they are confusing and will cause
inconsistent implementation of this NWP. Several commenters indicated
that a compensatory mitigation proposal to offset losses of waters of
the United States should be required for all activities that require
notification.
We have deleted these phrases from the text of NWP 42. We do not
agree that it is necessary to require a compensatory mitigation
proposal with the PCN, because of the types of recreational facilities
authorized by this NWP.
Several commenters said that this NWP should not authorize
discharges of dredged or fill material into wetlands for the
construction of stables and sanitary facilities. One commenter stated
that support facilities should be authorized by NWP 39. Another
commenter remarked that support facilities should be constructed in
uplands. One commenter said that restaurants and hotels should be
authorized by this NWP because these facilities support the
recreational facility. One commenter requested a definition of the term
``small support facilities.'' A commenter stated that the phrase
``reduced fertilizer use'' should be replaced with the term
``appropriate fertilizer use'' in the last paragraph of this NWP.
We maintain our position that this NWP should authorize small
support facilities necessary for the operation of the recreational
facility. Permittees are required to comply with General Condition 19,
which states that the project proponent must avoid and minimize
activities in waters of the United States on-site to the maximum extent
practicable. We maintain our position that restaurants and hotels
should not be authorized by this NWP. Restaurants and hotels can be
authorized by other NWPs, such as NWP 39, regional general permits, or
individual permits. District engineers will determine, for those
activities that require notification, what constitutes a ``small''
support facility that is authorized by this NWP. We believe that the
term ``reduced fertilizer use'' is more appropriate because the intent
is to encourage permittees to utilize less fertilizer, which will
reduce fertilizer loads on neighboring waterbodies.
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 is subject to General Condition 25, which
restricts its use in designated critical resource waters. For NWP 42
activities resulting in discharges of dredged or fill material into
waters of the United States within 100-year floodplains, General
Condition 26 requires the permittee to notify the district engineer and
demonstrate that the proposed work complies with FEMA or FEMA-approved
local floodplain construction requirements. NWP 42 is issued with the
modifications discussed above.
43. Stormwater Management Facilities: In the July 21, 1999, Federal
Register notice, we proposed to issue an NWP to authorize 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 (SWM) facilities.
Several commenters supported the issuance of this NWP and one
commenter agreed that the construction of SWM facilities in wetlands is
often necessary and that these SWM facilities are often more effective
than SWM facilities constructed in uplands. Several commenters objected
to the issuance of an NWP that authorizes the construction of SWM
facilities in wetlands and other commenters opposed the issuance of a
separate NWP for SWM facilities. One commenter said that this NWP
should authorize discharges of dredged or fill material into non-tidal
wetlands adjacent to tidal waters.
We maintain the position discussed in the July 21, 1999, Federal
Register notice that 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 more effective at trapping 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. Division engineers can regionally condition this
NWP to prohibit its use in high value waters. For those activities that
require notification, district engineers can add case-specific
conditions to ensure that the adverse effects on the aquatic
environment are minimal or exercise discretionary authority and require
an individual permit for activities with more than minimal adverse
effects. We do not agree that the scope of applicable waters for this
NWP should be expanded to non-tidal wetlands adjacent to tidal waters,
because this restriction is necessary to ensure that NWP 43 authorizes
activities with minimal adverse effects on the aquatic environment.
Two commenters asked whether NWP 43 authorizes the construction of
dams and detention basins to build new SWM facilities. Several
commenters said that this NWP does not clearly identify the extent of
the Corps regulatory jurisdiction concerning stormwater retention and
detention facilities. One of these commenters stated that SWM
[[Page 12857]]
facilities constructed in uplands that contain wetland vegetation
should not be considered jurisdictional wetlands. One commenter said
that 40 CFR 131.10 prohibits states from designating waste transport or
waste assimilation uses for any water of the United States. This
commenter indicated that NWP 43 is contrary to this regulation because
it authorizes the construction of SWM facilities in waters of the
United States.
This NWP authorizes the construction of dams and detention basins
for SWM facilities. However, this NWP does not authorize discharges of
dredged or fill material into perennial streams for the construction of
new SWM facilities. SWM facilities that were constructed in uplands and
have not been abandoned are generally not considered waters of the
United States, but district engineers reserve the right to determine on
a case-by-case basis whether these areas are waters of the United
States (see 51 FR 41217). The provisions of 40 CFR 131.10 do not
prohibit discharges of dredged or fill material into waters of the
United States for the construction or maintenance of SWM facilities.
Stormwater is not categorized as waste.
One commenter supported the proposed 2 acre limit and several
commenters recommended increasing the acreage limit to 3 acres for SWM
facilities constructed by local governments or local flood control
agencies. One commenter said that the 2 acre limit is too low but
another commenter indicated that this acreage limit is too high. One
commenter suggested a 1 acre limit for NWP 43 and another commenter
recommended a \1/4\ acre limit. One commenter said that this NWP should
have a 100 linear foot limit for stream bed impacts.
We have reduce the acreage limit for this NWP to \1/2\ acre, to
ensure that NWP 43 authorizes activities with minimal adverse effects
on the aquatic environment. In addition, we have added a 300 linear
foot limit for filling or excavating perennial or intermittent stream
beds.
One commenter supported paragraph (b) of the proposed NWP (now
designated as paragraph (c)), which states that NWP 43 does not
authorize discharges of dredged or fill material into perennial streams
for the construction of new SWM facilities. One commenter said that
this NWP should not authorize discharges of dredged or fill material
into any stream with perennial stream segments, because some arid
regions of the country have perennial streams that occasionally become
dry along certain reaches. Two commenters stated that this NWP should
not authorize any discharges of dredged or fill material into streams
to construct SWM facilities. One of these commenters expressed concern
that the NWP would authorize activities with more than minimal
cumulative adverse effects in urban areas and said that the conversion
of streams to SWM ponds results in the creation of pollution sinks for
urban storm runoff. One commenter said that this NWP should contain a
condition that requires the maintenance of stream base flows.
We have retained this paragraph in NWP 43. In arid regions of the
country, division engineers can regionally condition this NWP to
prohibit or restrict its use in streams with intermittent or ephemeral
stream segments, if those streams are high value waters. We do not
agree that the prohibition in paragraph (c) should be extended to
intermittent or ephemeral streams because we believe that, under the
terms and conditions of this NWP, the construction of SWM facilities in
these waters will result in minimal adverse effects on the aquatic
environment. District engineers will monitor the use of this NWP to
ensure that it does not authorize activities with more than minimal
adverse effects on the aquatic environment, individually and
cumulatively. Compliance with General Condition 21 will ensure that
surface water flows will be maintained to the maximum extent
practicable.
Two commenters objected to the proposed NWP because it does not
contain limits for ephemeral stream impacts. These commenters suggested
that this NWP should contain language stating that notification to the
district engineer is not required for the construction or maintenance
of SWM facilities constructed in ephemeral streams. These commenters
also recommended that the text of this NWP explicitly state that SWM
facilities that were originally constructed in ephemeral streams that
have become perennial or intermittent streams are exempt from any
permit requirements.
The \1/2\ acre limit for this NWP adequately limits impacts to
ephemeral streams. Division engineers can regionally condition this NWP
to impose limits on discharges of dredged or fill material resulting in
the loss of ephemeral stream bed, if there are specific concerns for
the aquatic environment in those regions. Any discharges of dredged or
fill material into waters of the United States associated with SWM
facilities constructed in ephemeral streams that are considered waters
of the United States requires a Corps permit.
Two commenters said that the \1/4\ acre PCN threshold is too small
and two other commenters suggested a \1/3\ acre PCN threshold. One
commenter stated that the PCN threshold should be lower.
We have lowered the PCN threshold for this NWP to \1/10\ acre, to
ensure that district engineers have the opportunity to review all
activities that have the potential to result in more than minimal
adverse effects on the aquatic environment. We have removed the PCN
threshold for activities causing the loss of greater than 500 linear
feet of intermittent stream bed, since we have added a 300 linear foot
limit for stream bed impacts.
One commenter asked if the PCN threshold applies to wetlands that
were created as a result of the impoundment of stormwater. This
commenter expressed concern that permittees would be required to
mitigate for impacts to wetlands created by the construction of an SWM
facility. This commenter said that these wetlands are often removed
during routine maintenance activities and that requiring compensatory
mitigation for the losses of these created wetlands would adversely
affect the ability of permittees to effectively restore SWM facilities
to their original design capacities.
Notification to the district engineer is required for discharges of
dredged or fill material that result in the loss of greater than \1/10\
acre of waters of the United States. District engineers will determine
the appropriate amount of compensatory mitigation necessary to offset
losses of waters of the United States to ensure that the adverse
effects on the aquatic environment are minimal. Subparagraph (d)(3)
clearly states that compensatory mitigation is not required for
maintenance activities in designated maintenance areas of existing SWM
facilities.
One commenter recommended the removal of subparagraph (c)(1) of the
proposed NWP (now designated as subparagraph (d)(1)) because the
maintenance of SWM facilities occurs on an unpredictable, episodic
basis which is not conducive to a maintenance plan. Another commenter
said that a compensatory mitigation proposal should not be required for
all activities that require notification because the construction of
some SWM facilities may result in the establishment of diverse, mature
wetlands in areas that are not disturbed for extended amounts of time.
This commenter suggested that the district engineer should have the
ability to determine whether or not compensatory mitigation should be
required for maintenance activities authorized by this NWP.
[[Page 12858]]
Subparagraph (d)(1) does not require maintenance on a timed
schedule. The maintenance plan can include a statement that maintenance
activities will be conducted as needed, to ensure that the SWM facility
continues to function effectively. The maintenance plan should also
identify the designated maintenance areas of the SWM facility.
Subparagraph (d)(3) requires only the submission of a compensatory
mitigation proposal with the PCN. Based on the review of a PCN, a
district engineer can determine that compensatory mitigation is
unnecessary because the adverse effects on the aquatic environment are
minimal without compensatory mitigation or that they will be mitigated
as wetlands are established in the SWM facility.
Two commenters said that the reference to ``watershed protection
techniques'' should be deleted from paragraph (e) of the proposed NWP
(now designated as paragraph (f)) or the term should be defined for the
purposes of NWP 43. One commenter stated that the maintenance of
existing SWM facilities should be exempted from the requirements of
this paragraph. One commenter said that it is inappropriate for the
Corps to characterize bioengineering methods as best management
practices. This commenter indicated that bioengineering methods should
be considered as mitigation and that the permittee should be given
compensatory mitigation credits for utilizing bioengineering methods.
One commenter indicated that there is a contradiction in the July 21,
1999, Federal Register notice because this notice states the district
engineer can allow the establishment of mitigation credits in SWM
facilities constructed with bioengineering techniques, but mitigation
credits cannot be established in regularly maintained areas in SWM
facilities. This commenter said that that mitigation credits should be
limited to non-maintenance areas and that mitigation credits should not
be allowed for the establishment of aquatic benches.
We have retained the phrase ``watershed protection techniques'' in
paragraph (f) because these techniques are an important mechanism to
ensure that NWP 43 authorizes activities with minimal adverse effects
on the aquatic environment. We will not define this term because
appropriate watershed protection techniques may vary in different areas
of the country. For example, in many arid regions of the country it may
be impractical to establish and maintain vegetated buffers next to
streams. In general, the requirements of paragraph (f) apply to the
construction of new SWM facilities, but best management practices
should be used when conducting maintenance activities. Bioengineering
techniques can be used to mitigate adverse effects on surface water
quality. These techniques should be considered as best management
practices in accordance with the definition in the ``Definitions''
section of the NWPs. District engineers can grant compensatory
mitigation credits for bioengineering methods if those methods result
in net gains in aquatic resource functions and values and are not
located in areas within SWM facilities that require regular
maintenance. Aquatic benches can provide compensatory mitigation, if
those areas are not in designated maintenance areas of SWM facilities.
One commenter said the NWP 43 will authorize the construction of
more than one stormwater management facility in a single watershed.
This commenter stated that paragraph (e) of the proposed NWP (now
designated as paragraph (f)) should contain a provision that requires
the consideration of other SWM facilities located in the same
watershed.
NWP 43 can be used to authorize more than one SWM facility in a
particular watershed, provided each of those SWM facilities constitutes
a separate single and complete project with independent utility.
District engineers will monitor the use of this NWP to ensure that it
does not authorize activities with more than minimal adverse effects on
the aquatic environment, individually or cumulatively.
Several commenters said that maintenance of SWM facilities should
be considered exempt from Corps permit requirements. One commenter
stated that the requirements of paragraph (f) of the proposed NWP (now
designated as paragraph (g)) are unnecessary because this activity can
be authorized by NWP 3.
The maintenance of SWM facilities constructed in Section 404 waters
is not exempt from Corps permit requirements. However, most maintenance
does not require a Corps permit because the activity only involves
incidental fallback of dredged material. NWP 43 authorizes the
maintenance of existing SWM facilities that involves discharges of
dredged or fill material into waters of the United States. NWP 43 does
not authorize maintenance activities in Section 10 waters.
One commenter expressed concern about the provision in paragraph
(g) of the proposed NWP (now designated as paragraph (h)). This
commenter said that a developer could fill up to 3 acres of waters of
the United States under NWP 39 and the local government could build an
SWM facility for the development under NWP 43, which would exceed the
total acreage for a single and complete project.
We believe that most SWM facilities constructed for a particular
development will be built by the developer, not the local government.
The developer may turn over the SWM facility to the local government
for maintenance, but the construction of the SWM facility will be
reviewed with the construction of the development. If NWP 39s and 43
are combined to authorize a single and complete project, the activity
is subject to General Condition 15. There may be instances where a
local government will construct a regional SWM facility that serves
more than one development. These regional SWM facilities are considered
to have independent utility from the serviced developments and may be
authorized by NWP 43.
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 is subject to General Condition 25, which
restricts its use in designated critical resource waters. For NWP 43
activities resulting in discharges of dredged or fill material into
waters of the United States within 100-year floodplains, General
Condition 26 requires the permittee to notify the district engineer and
demonstrate that the proposed work complies with FEMA or FEMA-approved
local floodplain construction requirements. NWP 43 is issued with the
modifications discussed above.
44. Mining Activities: In the July 21, 1999, Federal Register
notice, we proposed to issue an NWP to authorize discharges of dredged
or fill material into certain types of non-tidal waters of the United
States for aggregate and hard rock/mineral mining activities.
A large number of commenters opposed the issuance of NWP 44.
Numerous commenters said that NWP 44 is so restrictive that it will be
of little use to the mining industry. These commenters also indicated
that mining companies will have little incentive to design their
projects to meet the terms and conditions of NWP 44 and that these
companies will apply for individual permits. Many commenters
[[Page 12859]]
stated that the activities authorized by NWP 44 will result in more
than minimal cumulative adverse effects on the aquatic environment,
individually and cumulatively. Several commenters said that the Corps
should issue separate NWPs for aggregate and hard rock/mineral mining
activities. One of these commenters stated that aggregate and hard
rock/mineral mining activities are distinct forms of mining and that
issuing one NWP to authorize both of these activities violates the
similar in nature requirement of Section 404(e) of the Clean Water Act.
The terms and conditions of this NWP will ensure that it authorizes
only aggregate and hard rock/mineral mining activities with minimal
adverse effects on the aquatic environment. Where there are specific
concerns for the aquatic environment, division engineers can regionally
condition this NWP to prohibit or limit its use in high value waters.
Since notification to the district engineer is required for all
activities authorized by this NWP, each proposed mining activity will
be reviewed by district engineers to ensure that the work results in
minimal adverse effects. We maintain our position that it is
unnecessary to issue separate NWPs for aggregate and hard rock/mineral
mining activities. These activities are sufficiently similar in nature
to warrant the issuance of a single NWP.
One commenter asked what is meant by the term ``hard rock/mineral
mining'' as used in the context of NWP 44. This commenter indicated
that the district engineer will determine what constitutes mining for
the purposes of this NWP on a case-by-case basis. This commenter also
requested clarification whether NWP 44 authorizes all discharges of
dredged or fill material into waters of the United States for hard
rock/mineral mining activities or whether the Corps intends to limit
this NWP to a certain subset of mining and related activities. One
commenter asked for a definition of the term ``support activities'' as
used in the context of this NWP. Another commenter said that this NWP
should be expanded to authorize the mining of clay and dirt.
For purposes of this NWP, hard rock/mineral mining is the
extraction of metalliferous ores from subsurface locations. NWP 44
authorizes discharges of dredged or fill material into certain
categories of waters of the United States, as identified in the first
paragraph of this NWP, for aggregate mining activities and hard rock/
mineral mining activities. District engineers will determine, on a
case-by-case basis, whether a particular mining activity is within the
scope of this NWP. NWP 44 also authorizes fill for support facilities
necessary for the mining operation. 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 activities,
sediment and erosion controls, and mechanized landclearing. In the July
21, 1999, Federal Register notice, we discussed the applicability of
this NWP to clay mining activities and the extraction of soil to be
used as fill material. NWP 44 does not authorize clay mining or the
extraction of fill dirt from waters of the United States. These
activities can be authorized by other NWPs, regional general permits,
or individual permits.
Several commenters objected to the scope of applicable waters for
this NWP, stating that it is too limited for most mining activities A
number of commenters stated that hard rock/mineral mining activities
should be authorized in ephemeral streams. One commenter said that NWP
44 should authorize mining activities in headwaters, including
intermittent and perennial streams. Several commenters stated that
there is no need to limit the use of this NWP to the upper portion of
headwaters and eliminate the ability for miners to relocate or divert
most headwater stream segments. Many commenters indicated that this NWP
should not authorize any activities in streams. One commenter asked why
NWP 44 does not authorize mining activities between lower perennial
streams and the upper segments of headwater streams. One commenter said
that the 1 cubic foot per second threshold should be replaced with
ephemeral streams as a limit for stream bed impacts for aggregate
mining activities. Several commenters said that the Cowardin definition
of the term ``lower perennial stream'' should be included in the
``Definitions'' section of the NWPs.
The scope of applicable waters for NWP 44 is intended to ensure
that this NWP authorizes only those mining activities that have minimal
adverse effects on the aquatic environment, individually and
cumulatively. We do not agree that hard rock/mineral mining activities
should be authorized in streams because these activities are more
likely to result in more than minimal adverse effects on the aquatic
environment, due to the processing methods used for this type of
mining. NWP 44 authorizes aggregate mining activities in perennial and
intermittent streams, provided those streams have an average annual
flow of 1 cubic foot per second (cfs) or less. NWP 44 also authorizes
aggregate mining activities in lower perennial streams. Limiting
aggregate mining activities to these small streams will ensure that the
NWP authorizes activities with minimal adverse effects on the aquatic
environment. Streams segments located between lower perennial streams
and the upper reaches of headwater streams often provide valuable
aquatic habitat, such as fish spawning areas. We do not agree that the
1 cfs threshold should be replaced with ephemeral streams for aggregate
mining activities in headwaters. In the last paragraph of this NWP, we
have incorporated a modified version of the Cowardin definition of the
term ``lower perennial riverine subsystem'' to clarify where aggregate
mining activities in lower perennial streams are authorized. We have
also replaced the word ``and'' with the term ``and/or'' between parts
(ii) and (iii) of the introductory paragraph to clarify that a
particular mining activity authorized by NWP 44 can occur in any or all
of the specified waters.
Several commenters stated that the proposed 2 acre limit for NWP 44
is too low. Numerous commenters suggested that this NWP should have a
higher, indexed acreage limit. Three commenters recommended a 3 acre
limit and another commenter said that impacts to lower perennial
streams, isolated wetlands, and ephemeral streams should be limited to
1 acre. One commenter stated that this NWP should have a higher acreage
limit because other Federal and state programs that address hard rock/
mineral mining activities require measures to minimize impacts to
waters of the United States. One commenter suggested that the Corps
impose a linear limit on perennial and intermittent stream bed impacts.
Another commenter recommended a 500 linear foot limit for stream bed
impacts.
To ensure that this NWP authorizes activities with minimal adverse
effects on the aquatic environment, we have reduced the acreage limit
of NWP 44 to \1/2\ acre. We do not agree that this NWP should have an
indexed acreage limit. Since this NWP has applicability nationwide, it
would be impractical to utilize state requirements for mining
activities, because their requirements are likely to vary considerably
between geographic areas. This NWP is limited to small stream segments;
therefore it is unnecessary to impose a linear limit on stream bed
impacts. However, division engineers can regionally condition this NWP
to further limit stream impacts. In addition, notification is required
for all activities authorized by this NWP,
[[Page 12860]]
which will allow district engineers to review proposed stream impacts
on a case-by-case basis to ensure that those activities result in
minimal adverse effects on the aquatic environment.
Two commenters objected to requiring PCNs for all activities
authorized by this NWP. One commenter suggested a \1/3\ acre PCN
threshold. Several commenters stated that the Corps does not have the
authority to review reclamation plans and the requirement to submit
reclamation plans with the PCN should be removed.
We believe that it is necessary to require notification for all
activities authorized by this NWP, to ensure that the NWP authorizes
activities with minimal individual and cumulative adverse effects on
the aquatic environment. As discussed in the July 21, 1999, Federal
Register notice, 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. 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 activity
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.
Several commenters asked whether paragraph (i) of the proposed NWP
(now designated as paragraph (h)) applies only to hard rock/mineral
mining activities because of the processes involved in mineral
extraction. Some of these commenters indicated that the text of this
paragraph implies that the 200 foot setback applies to both aggregate
and hard rock/mineral mining activities. A number of commenters said
that the Corps does not have the authority to prohibit beneficiation
and mineral processing within 200 feet of the ordinary high water mark
(OHWM) of open waters. One commenter asked if the 200 foot setback is
necessary because NWP 44 does not authorize discharges of dredged or
fill material into open waters of the United States for hard rock/
mineral mining activities.
The requirements of paragraph (h) of the proposed NWP 44, apply
only to hard rock/mineral mining activities. We have inserted the
phrase ``for hard rock/mineral mining activities'' into the text of
paragraph (h) to clarify that the 200 foot setback applies only to
beneficiation and mineral processing associated with hard rock/mineral
mining activities. In the mining industry, the term ``beneficiation''
applies solely to mineral ore processing. We have the authority to
condition NWP 44 to prohibit beneficiation and mineral processing
within 200 feet of the OHWM of open waters because this requirement is
necessary to ensure that the NWP authorizes activities with minimal
adverse effects on the aquatic environment. Project proponents
conducting hard rock/mineral mining activities in waters of the United
States who want to conduct beneficiation and mineral processing within
200 feet of the OHWM of open waters can request another form of DA
permit for those activities. The 200 foot setback required for
beneficiation and mineral processing activities is necessary to protect
water quality.
We have also modified paragraph (i) (paragraph (j) of the proposed
NWP) to clarify that the district engineer can require modifications to
the water quality management plan for the mining activity to ensure
that adverse effects to water quality are minimal. In addition, we have
modified paragraph (k) (formerly paragraph (l)) to clarify what
constitutes a single and complete mining activity. In paragraph (l)
(formerly paragraph (m)), we have changed the first item to require the
notification to include a description of waters of the United States
adversely affected by the proposed work.
Several commenters objected to the provision in the last paragraph
of NWP 44 that prohibits hard rock/mineral mining within 100 feet of
the OHWM of headwater streams. Another commenter said that this NWP
should contain depth limits for pits because large pits could be
constructed under this NWP. One commenter suggested adding a provision
to NWP 44 that requires the permittee to fully reclaim or restore the
mined site before commencing mining activities on another site in the
same stream segment.
The prohibition against hard rock/mineral mining activities in
waters of the United States within 100 feet of the OHWM of headwater
streams is necessary to ensure that these mining activities result in
minimal adverse effects on headwater streams. It is unnecessary to add
a depth limit for mining pits because the \1/2\ acre limit and the
terms and conditions of NWP 44 provide adequate protection of the
aquatic environment. We do not agree that it is necessary to require
permittees to fully reclaim or restore the mined site before conducting
mining activities on other sites because the NWP regulations concerning
single and complete projects already adequately address multiple mining
activities.
Several commenters requested further explanation of the proposed
``clarification of jurisdiction'' for mining operations that was
provided in the preamble of the July 21, 1999, Federal Register notice.
These commenters asked for definitions of the terms ``cessation of
operations'' and ``abandonment.'' Two commenters said that the
``clarification of jurisdiction'' must clearly state that wetlands,
ponds, and other waterbodies will not be considered ``waters of the
United States'' until bond release. One commenter objected to changing
the 15 year term proposed in the preamble to the July 1, 1998, Federal
Register notice to a 5 year term because mining is a cyclical industry
and shutdowns of greater than 5 years are not uncommon.
One commenter stated that the ``clarification of jurisdiction''
statement is inconsistent with the effluent limitation guidelines at 40
CFR part 440. This commenter said that pit lakes should be regulated as
waters of the United States, even though the mining site has not been
reclaimed. This commenter expressed concern that pit lakes would not be
considered waters of the United States even if the mining operation
ceased years ago. In addition, this commenter indicated that the
construction of pit lakes would does not comply with former paragraph
(f) (now designated as paragraph (e)) of the proposed NWP and General
Condition 21.
As a result of our review of the comments addressing the proposed
``clarification of jurisdiction'' we have decided to withdraw the
proposed guidance. District engineers will determine, on a case-by-case
basis, whether a specific mined area has been abandoned. In most cases,
a mining site where no construction, mining, excavation, processing,
and/or reclamation activities have occurred during the last 10 years
would be considered abandoned, at the district engineer's discretion.
Wetlands and waterbodies within an abandoned mined area would be
considered ``waters of the United States'' if those
[[Page 12861]]
areas meet the criteria at 33 CFR part 328.
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 is subject to General Condition 25, which
restricts its use in designated critical resource waters. For NWP 44
activities resulting in discharges of dredged or fill material into
waters of the United States within 100-year floodplains, General
Condition 26 requires the permittee to notify the district engineer and
demonstrate that the proposed work complies with FEMA or FEMA-approved
local floodplain construction requirements. NWP 44 is issued with the
modifications discussed above.
IV. Comments and Responses on Nationwide Permit General Conditions
In the July 21, 1999, Federal Register notice, the Corps announced
its decision to combine the NWP General Conditions with the Section 404
Only conditions. Two commenters supported this change. In the July 21,
1999, Federal Register notice, the Corps proposed to modify nine NWP
general conditions and add three new NWP conditions. In response to
that Federal Register notice, we received many comments on specific NWP
general conditions.
The general conditions in this Federal Register notice will apply
to all of the NWPs, including the NWPs published in the December 13,
1996, Federal Register notice, unless a particular general condition
applies only to specific NWPs listed in that general condition. The
general conditions published today will become effective on June 5,
2000.
4. Aquatic Life Movements: In the July 21, 1999, Federal Register
notice, we proposed to modify this general condition by adding a
requirement for culverts to be installed to maintain low flow
conditions.
One commenter stated that there are situations, such as stream
channels with bedrock substrate, where culverts cannot be installed
below grade to maintain low flows. This commenter requested that the
Corps remove the requirement to install culverts to maintain low flows.
Another commenter asked the Corps to remove the word ``substantially''
from this general condition because it imposes a threshold that is too
high for activities that result in minimal adverse effects on the
aquatic environment.
We do not agree that it is necessary to add an exclusion for stream
beds that consist solely of bedrock. Road crossings in these streams
can be constructed through other means, such as bridges or fords, that
allow low flows to pass through the crossing. It is important to
maintain low flow conditions to minimize disruptions to movements of
aquatic organisms.
We have retained the word ``substantially'' in the text of this
general condition because the removal of this word would change the
requirement from ``minimal adverse effect'' to ``no adverse effect.''
We recognize that most work in waters of the United States will result
in some disruption in the movement of aquatic organisms through those
waters. District engineers will determine, for those activities that
require notification, if the disruption of aquatic life movements is
more than minimal and either add conditions to the NWP to ensure that
the adverse effects are minimal or exercise discretionary authority and
require an individual permit. This general condition is adopted as
proposed.
7. Wild and Scenic Rivers: In the July 21, 1999, Federal Register
notice, we did not propose any changes to this general condition. One
commenter objected to the inclusion of ``study rivers'' in the text of
this general condition.
We will retain ``study rivers'' in this general condition because
study rivers are afforded the same protections as designated Wild and
Scenic Rivers, while they are in study status. This general condition
is retained without change.
9. Water Quality: The draft modification of General Condition 9
that was published in the July 21, 1999, Federal Register notice
required permittees to develop and implement water quality management
plans for activities authorized by NWPs 12, 14, 17, 18, 32, 39, 40, 42,
43, and 44, if such a plan is not required by the state or Tribal
Section 401 water quality certification. The draft modification of this
general condition also required the establishment and maintenance of
vegetated buffers next to open waters, such as streams.
To clarify the requirements of General Condition 9, we have divided
this general condition into two paragraphs. Paragraph (a) discusses the
requirement for individual water quality certifications. Paragraph (b)
addresses the requirement for water quality management plans, including
vegetated buffers.
Many commenters objected to the requirement for a water quality
management plan, stating that the Corps lacks the statutory authority
to require such a plan. A large number of commenters said that this
requirement is duplicative of existing programs, such as state or
Tribal water quality certification (WQC) and National Pollutant
Discharge Elimination System programs. Several commenters stated that
the Corps does not have the authority to determine whether a particular
state or Tribal program adequately addresses water quality. Two
commenters remarked that the Corps cannot override a state's WQC
decision. Several commenters said that the proposed modification of
General Condition 9 is not consistent with 33 CFR 320.4(d), which
states that: ``[c]ertification of compliance with applicable effluent
limitations and water quality standards required under provisions of
section 401 of the Clean Water Act will be considered conclusive with
respect to water quality considerations unless the Regional
Administrator, Environmental Protection Agency (EPA), advises of other
water quality aspects to be taken into consideration.'' A number of
commenters said that the Corps does not have the expertise to assess
the effectiveness of water quality management plans or stormwater
management plans for particular activities. One commenter asked for a
definition of the term ``water quality management plan.''
Two commenters objected to the proposed modification of General
Condition 9 because it requires stormwater management plans, even if
those plans are not required by state or local governments. One
commenter supported the statement in the July 21, 1999, Federal
Register notice that a water quality management plan is not required if
water quality issues are adequately addressed by state or local
governments. One commenter objected to a statement in the July 21,
1999, Federal Register notice that a water quality management plan is
not required for activities that have minimal adverse effects on local
water quality. This commenter said that this statement is illogical
because the NWPs can authorize only activities that have minimal
adverse effects on the aquatic environment. Several commenters agreed
that a water quality management plan should not be required for
activities that have minimal adverse effects and requested that the
Corps add
[[Page 12862]]
appropriate language to General Condition 9 because the draft general
condition published in the July 21, 1999, Federal Register notice does
not provide that flexibility. Several commenters stated that the
requirement for water quality management plans will substantially
increase costs for local governments and the regulated public. One
commenter suggested that the Corps should rely on standard best
management practices to protect water quality, instead of requiring
case-specific water quality management plans.
A goal of the Clean Water Act, as stated in section 101 of the Act,
is to restore and maintain the chemical, physical, and biological
integrity of the Nation's waters. We maintain our position that the
requirement for a water quality management plan for certain NWPs is
necessary to ensure that activities authorized by those NWPs do not
result in more than minimal adverse effects to water quality. We can
require water quality management plans through our statutory authority
under section 404 of the Clean Water Act, because the goal stated in
section 101 applies to all sections of the Clean Water Act.
A water quality management plan is a mechanism to ensure that the
activity authorized by NWP causes only minimal adverse effects on water
quality. It can include stormwater management techniques and vegetated
buffers next to open waters to protect water quality. The terms of
General Condition 9 are not intended to replace existing state or
Tribal section 401 requirements. In regions with strong water quality
programs, district engineers will defer to state, Tribal, and local
requirements and will not require water quality management plans as
special conditions of NWP authorizations. If the 401 agency or other
state or local 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 of vegetated buffers next to open waters, that will
minimize adverse effects to water quality.
If a district engineer determines that a water quality management
plan is unnecessary because the authorized work will result in minimal
adverse effects on water quality, then a water quality management 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. In addition, a water
quality management plan is not necessary for activities that are
serviced by a regional stormwater management system. We have modified
the first sentence of paragraph (b) by replacing the phrase ``provide
for protection of aquatic resources'' with the phrase ``will ensure
that the authorized work does not result in more than minimal
degradation of water quality'' to clarify why a water quality
management plan may be required by the district engineer.
We have also modified the second sentence of paragraph (b) by
replacing the word ``project'' with the phrase ``water quality
management plan.'' This clarifies that stormwater management is a
component of the water quality management plan. If the district
engineer determines that a water quality management plan is not
required because a specific activity will have minimal adverse effects
on water quality, then stormwater management methods are not necessary
if they are not required by state or local governments.
We recognize that the development and implementation of a water
quality management plan may increase costs to the regulated public. It
is important to note that the purpose of the water quality management
plan is to ensure that the authorized work results in minimal adverse
effects on the aquatic environment, especially water quality. In most
cases, the requirements of the Section 401 water quality certification
and state or local stormwater management requirements will adequately
address these issues. These state and local requirements already incur
costs on project proponents and we do not agree that the requirements
of General Condition 9 will impose substantial additional costs. Since
site conditions are extremely variable between geographic regions of
the country, we do not agree that generic best management practices are
a better approach to address water quality concerns.
Several commenters objected to the requirements of General
Condition 9, because the Corps does not define what constitutes a
``strong'' state water quality program. These commenters said that this
requirement would confuse the regulated public because they cannot know
when a water quality management plan will be required by the Corps for
a particular NWP activity. Two commenters recommended that the Corps
add language to General Condition 9 stating that water quality
management plans will not be required in states with strong water
quality programs. A commenter objected to the proposed modification of
General Condition 9 because a district engineer may require
modifications that conflict with the requirements of a state-issued
WQC. Another commenter said that the Corps should coordinate water
quality management requirements with state or local authorities, which
would reduce redundancy and assist in enforcement.
We cannot define, at a national level, what constitutes a strong
state water quality program. Corps districts can make a programmatic
determination that a particular state, Tribe, or local government has a
strong water quality program and therefore the Corps would not require
project-specific water quality management plans in those jurisdictions.
Where these programmatic determinations have not been made, district
engineers will determine, on a case-by-case basis, when water quality
management plans are necessary. A water quality management plan for a
particular activity may be required as a special condition to the NWP
authorization, whereby the permittee would submit the specifics of the
water quality management plan to the district engineer prior to
starting the work. We do not agree that it is necessary to explicitly
state in the text of General Condition 9 that water quality management
plans will not be required in states with strong water quality programs
because this issue is adequately addressed in the preamble.
It is unlikely that a district engineer will request modifications
to a particular activity that conflicts with WQC requirements, although
the district engineer may require additional measures that are more
stringent than the WQC conditions. We encourage district engineers to
coordinate water quality management requirements with state and local
authorities, to effectively implement the provisions of General
Condition 9.
One commenter suggested that the Corps add language to this general
condition that explains that the standard to be achieved is ``minimal''
degradation, not ``no'' degradation of water quality. This commenter
cited the requirement of minimal degradation that was discussed in the
preamble in the July 21, 1999, Federal Register notice. Two commenters
objected to the proposed modification of General Condition 9 because
the Corps has not defined what constitutes acceptable ``minimal
degradation to water quality'' or ``minimal adverse effects to water
quality.''
General Condition 9 does not contain a ``no degradation'' standard.
General Condition 9 requires methods to minimize degradation of
downstream aquatic habitats. We cannot provide
[[Page 12863]]
national definitions of the terms ``minimal degradation'' or ``minimal
adverse effects'' to water quality because aquatic systems vary
considerably across the country. District engineers will utilize their
knowledge of local aquatic resources to make these determinations.
Several commenters requested that the Corps add language to this
general condition that states that the requirements of General
Condition 9 apply only to activities that result in discharges of
dredged or fill material into waters of the United States, not to
activities in uplands. These commenters cited the example in the
preamble to the July 21, 1999, Federal Register notice, which indicated
that the water quality management plan does not apply to the entire
upland site if only a small amount of waters of the United States are
filled to provide access to an upland development site. Two commenters
stated that the Corps needs to provide a definition of the term
``project'' as it is used in the context of this general condition,
because the general condition requires the establishment and
maintenance of vegetated buffers if the activity occurs in the vicinity
of open waters. These commenters asserted that the Corps cannot require
stormwater management facilities or vegetated buffers to offset adverse
effects caused by activities outside of waters of the United States.
The requirements for water quality management plans, including
vegetated buffers next to open waters, apply only to those NWP
activities that involve discharges of dredged or fill material into
waters of the United States. Water quality management plans are
required only for those NWPs listed in paragraph (b). We have also
modified this general condition to state that vegetated buffers next to
open waters are an important component of the water quality management
plan. We have included a reference to General Condition 19, which
contains the vegetated buffer requirements for the NWPs, in General
Condition 9.
The requirement for a water quality management plan does not apply
to activities in uplands, if the discharge of dredged or fill material
into waters of the United States constitutes only a small portion of
the entire activity. In this situation, if a water quality management
plan is necessary to ensure that the activity in waters of the United
States causes only minimal degradation of water quality, the water
quality management plan would address only the specific activity that
results in discharges or dredged or fill material into waters of the
United States. However, if a large proportion of the project area is
comprised of waters of the United States, then the water quality
management plan should consider those upland areas within the project
area to ensure that the overall activity will result in minimal adverse
effects to water quality. Since the applicable area for the water
quality management plan depends on the proportion of the project area
that is composed of waters of the United States, we cannot provide a
definition of the term ``project'' for the purposes of this general
condition.
A commenter requested that the Corps specify the information that
should be included in a water quality management plan. One commenter
stated that the general condition should include a qualitative
assessment procedure. Several commenters stated that water quality
management requirements must be directly related to an identifiable
water quality concern that is caused by the authorized discharge of
dredged or fill material into waters of the United States. A commenter
recommended adding a statement to this general condition explaining
that water quality mitigation will be required when necessary to
address site-specific water quality concerns and that the required
mitigation will be accomplished through the most cost-effective method
to address those concerns. Several commenters suggested that the Corps
add a definition of the term ``practicable'' as it is used in the
context of this general condition.
We cannot specify the components of a water quality management plan
because these requirements will vary across the country. In general,
stormwater management techniques and vegetated buffers next to open
waters can be components of a water quality management plan. The
language of General Condition 9 is intended to allow flexibility and
minimize the amount of information necessary to determine compliance
with its requirements. We cannot include a qualitative assessment
procedure in the text of the general condition because of the
variability in aquatic resources across the country. District engineers
have their own criteria for assessing impacts to water quality, based
on local conditions. District engineers will use their judgement to
qualitatively determine if a particular activity complies with this
general condition and will not require extensive analyses or reviews.
Detailed studies are not required. We contend that these assessments
should be left to the judgement of district engineers and will not
establish a national assessment procedure. Water quality management
requirements will be directly related to the activity authorized by
NWP, to ensure that the authorized activity results in minimal adverse
effects on local water quality.
Water quality management techniques must be practicable and capable
of being accomplished by the permittee. For the purposes of General
Condition 9, the definition of the term ``practicable'' is the same as
the definition in the first sentence of paragraph (a) of General
Condition 19. Measures required by district engineers to ensure that
activities authorized by NWPs do not result in more than minimal
adverse effects to water quality must be practicable, while allowing
the proposed work to accomplish the overall project purpose. For
example, the establishment and maintenance of vegetated buffers next to
open waters on the project site will help protect water quality, but
the width of those vegetated buffers must not reduce the amount of
developable land on the project site to the extent that the proposed
work is no longer technologically or economically viable.
One commenter recommended expanding the water quality management
plan requirement to NWPs 3, 7, 8, 21, 23, 29, and 33. One commenter
indicated that water quality management plans should not be required
for NWP 44 activities because such plans are already required for hard
rock/mineral mining operations. One commenter suggested waiving the
water quality management plan requirement for discharges of dredged or
fill material into ephemeral streams. One commenter stated that the
requirement for stormwater management should apply only to activities
that impact more than 4 acres of land.
We do not agree that water quality management plans should be
required for activities authorized by NWPs 3, 7, 8, 21, 23, 29, and 33.
We addressed the applicability of this general condition to NWP 21 in
the preamble of the July 21, 1999, Federal Register notice and have not
changed our position on this issue. The other NWPs listed in the first
sentence of the previous paragraph authorize activities that typically
have minor impacts on water quality. Even though other laws or
regulations require water quality management plans for hard rock/
mineral mining activities, we are not aware of a similar requirement
for aggregate mining activities. Therefore, we do not agree that NWP 44
should be removed from the list of applicable NWPs. District engineers
can determine, on a case-by-case basis, that water quality management
plans are not required for activities involving
[[Page 12864]]
discharges of dredged or fill material into ephemeral streams. We do
not agree that there should be a minimum project size to determine when
stormwater management facilities are necessary.
Numerous commenters addressed the vegetated buffer requirement in
the proposed modification of this general condition. Two commenters
requested clarification whether the establishment and maintenance of
vegetated buffers are required for all NWPs or only the NWPs listed in
the second sentence of the proposed modification of General Condition
9. Two commenters said that vegetated buffers should not be required
under all circumstances and that district engineers should use their
discretion on a case-by-case basis. Several commenters recommended the
removal of the vegetated buffer requirement from this general
condition. Two commenters stated that vegetated buffers should be
required only to address site-specific water quality concerns when the
establishment and maintenance of vegetated buffers is practicable.
For the purposes of General Condition 9, vegetated buffers should
be an important component of a water quality management plan. The
vegetated buffer requirements for the NWPs are discussed in paragraph
(b) of General Condition 19. If there are not any open waters on the
project site, then vegetated buffers are not required. In addition,
vegetated buffers are not required for Section 404 activities that
result only in minimal adverse effects to water quality. District
engineers will determine, on a case-by-case basis, when vegetated
buffers are necessary to ensure that the authorized work results only
in minimal adverse effects. The use of vegetated buffers in the NWP
program is discussed in more detail in a previous section of this
Federal Register notice.
Several commenters requested that the Corps clarify what is meant
by the phrase ``in the vicinity'' of an open waterbody as it relates to
the vegetated buffer requirement. Two commenters recommended that the
Corps replace ``vicinity'' with ``contiguous'' to more clearly
establish a direct relationship between the vegetated buffer
requirement and the impacts caused by the authorized work. Two
commenters said that the phrase ``to the maximum extent practicable''
needs to be defined for the purposes of the vegetated buffer
requirement.
The term ``in the vicinity'' as used in the context of this general
condition, means the parcel where the activity is located. If there are
not any open waters on the project site, then vegetated buffers are not
required. We have replaced the word ``adjacent'' with the word ``next''
to clarify that the vegetated buffer is to be established and
maintained on land next to the open waterbody. We do not agree that the
word ``vicinity'' should be replaced with ``contiguous'' because the
requirement for vegetated buffers applies only to open waters on the
project site. We have removed the phrase ``to the maximum extent
practicable'' as it was used in the context of the vegetated buffer
requirement in the proposed general condition. This general condition
is adopted with the modifications discussed above.
11. Endangered Species: In the July 21, 1999, Federal Register
notice, we proposed to modify this general condition by adding a
requirement for the prospective permittee to submit, with the
notification, the name(s) of the endangered or threatened species that
may be affected by the proposed work or utilize designated critical
habitat that may be affected by the proposed work.
One commenter objected to the requirement for prospective
permittees to notify the Corps if there may be threatened or endangered
species in the vicinity of the proposed activity. Another commenter
objected to the requirement for applicants to notify the Corps for any
activity that will occur in designated critical habitat. A commenter
stated that the requirement to notify the district engineer if listed
species or critical habitat may be affected by the proposed activity
should apply to both Federal and non-Federal applicants. Two commenters
opposed the notification requirement, stating that project proponents
cannot know if their projects are located in designated critical
habitat. Several commenters stated that the Corps is responsible as the
lead Federal agency for compliance with section 7 of the Endangered
Species Act (ESA) and that the Corps cannot delegate to the prospective
permittee the determination whether a listed species or their critical
habitat would be affected by the proposed work.
The notification requirements for General Condition 11 are
necessary to ensure that activities authorized by NWPs comply with the
requirements of ESA. Federal permittees are required to conduct Section
7 ESA consultation directly with either the U.S. Fish and Wildlife
Service (FWS) or the National Marine Fisheries Service (NMFS),
depending on which species may be affected by the proposed work.
Prospective permittees should contact the FWS or NMFS to determine if
their activities may affect Federally-listed endangered or threatened
species or destroy or adversely modify designated critical habitat. We
recognize that we are responsible for determining whether an activity
is likely to jeopardize the continued existence of a threatened or
endangered species or whether an activity will adversely modify or
destroy designated critical habitat, but we cannot require permittees
to submit notifications for all NWP activities so that we can determine
compliance with ESA. Division engineers can regionally condition the
NWPs to require notification for NWP activities in known locations of
Federally-listed endangered or threatened species and their designated
critical habitat.
One commenter suggested that a specific distance should be used to
define the phrase ``in the vicinity'' as it is used in this general
condition. Another commenter said that the Corps needs to define what
constitutes ``affecting critical habitat'' as it applies to the NWPs.
One commenter stated that the word ``destroy'' should be defined or
deleted from this general condition. A commenter stated that any
activity that may affect a Federally-listed endangered or threatened
species or its critical habitat must be reviewed by the FWS. Another
commenter said that individual permits should be required for
activities that may affect endangered or threatened species or their
critical habitat.
We do not agree that a specific distance should be established to
define the term ``vicinity'' because the area that constitutes the
``vicinity'' varies from species to species. Activities in waters of
the United States within critical habitat have the potential to destroy
or adversely modify that critical habitat and should be reviewed by the
Corps to ensure compliance with ESA. The phrase ``destruction or
adverse modification'' is defined at 50 CFR 402.02 and this definition
applies to the phrase ``destroy or adversely modify'' that is found in
General Condition 11. We will consult with FWS and NMFS for those
activities that may affect or jeopardize Federally-listed endangered or
threatened species or may destroy or adversely modify the designated
critical habitat of those species. We do not agree that all activities
that may affect endangered or threatened species or their critical
habitat should be reviewed under the individual permit process because
these activities can often be authorized by NWPs in compliance with
ESA.
As a consequence of the NWP/General Permit Programmatic ESA Section
7 consultation, district engineers will develop Standard Local
Operating Procedures for Endangered Species and
[[Page 12865]]
may develop other procedures to ensure that the NWPs and general
permits will comply with the ESA. In addition, as part of this process,
the Corps may need to adopt regional conditions for endangered species.
To ensure that these conditions and procedures are properly
coordinated, the decision authority for adding regional conditions for
endangered species has been delegated to the district engineer in
General Condition 11. This general condition is adopted with the
modifications discussed above.
12. Historic Properties: In the July 21, 1999, Federal Register
notice, we did not propose any changes to this general condition. One
commenter objected to requiring compliance with the National Historic
Preservation Act (NHPA) for activities authorized by NWPs. Another
commenter opposed the notification requirement of General Condition 12
and asked how a permittee would know if his or her activity will affect
historic properties. One commenter stated that the requirement to
notify the district engineer if eligible cultural resources may be
affected by a proposed activity should apply to both Federal and non-
Federal applicants. A commenter said that individual permits should be
required for all activities that may affect eligible cultural
resources. One commenter indicated that the Corps should not require
extensive documentation from an applicant demonstrating compliance with
the NHPA.
All activities that require a Federal license (including NWPs) must
comply with the NHPA. A prospective permittee can contact the local
State Historic Preservation Officer to determine if the proposed work
will affect known historic properties. Both Federal and non-Federal
permittees are required to notify district engineers when authorized
activities may affect listed or eligible historic properties. We do not
agree that all activities that may affect cultural resources should be
reviewed under the individual permit process because these activities
can often be authorized by NWPs in compliance with the NHPA. The Corps
requires the minimum documentation necessary to ensure compliance with
the NHPA. This general condition is retained without change.
13. Notification: In the July 21, 1999, Federal Register notice, we
proposed to change the 30 day PCN review period to 45 days, and include
a requirement for district engineers to determine whether a PCN is
complete within 30 days of the date of receipt.
Two commenters supported the proposed changes to the PCN review
period. Many commenters objected to the proposed changes, stating that
allowing 30 days for a completeness review and 45 days to determine
whether the proposed work qualifies for NWP authorization makes the NWP
process similar to the standard permit process, in terms of processing
times. Two commenters remarked that the 30-day completeness review
period should be included in the 45-day PCN review period. Two
commenters said that the PCN should be considered complete if the Corps
does not request additional information prior to the end of the 30 day
completeness review period, so that the Corps cannot defer processing
the PCN indefinitely. One commenter suggested that the Corps notify
prospective permittees, through telephone calls or postcards, if their
PCNs are complete. This commenter said that such a process would
relieve some burdens associated with the proposed revisions to the
notification process. Another commenter recommended modifying General
Condition 13 to impose a time limit for the Corps to notify prospective
permittees that all of the requested information has been received.
The 30 day completeness review period and the 45 day PCN review
period are not independent of each other (i.e., they do not add up to a
75 day review period for NWP activities). If a prospective permittee
submits a complete PCN to the Corps district office, the 45 day PCN
review period begins on the date of receipt and the district engineer
must decide whether to issue an NWP verification or exercise
discretionary authority within 45 days. If the 30 day completeness
review period has passed since the date of receipt of a PCN and the
district engineer has not requested additional information to make the
PCN complete, the applicant can assume the PCN is complete.
Other commenters recommended different time limits for PCN
completeness reviews. One commenter said that the completeness review
should be done on the date of receipt of the PCN and the applicant
should be notified immediately that additional information is necessary
to begin the PCN process. Other recommended time periods for
completeness review included 7, 10, and 15 days. One commenter objected
to the 30 day completeness review period, stating that it was longer
than the completeness review period for standard permits (i.e., 15
days).
It is impractical for district engineers to conduct completeness
reviews on the date of receipt. We believe the 30 day completeness
review period is necessary because district engineers can make only one
request for the information needed for a complete PCN.
Two commenters requested clarification whether the 45 day PCN
review period starts on the day the Corps determines the PCN to be
complete or the date the complete PCN is received in the district
office. One commenter asked if the verification of wetland delineations
would be done within the 30 day completeness review period. Two
commenters supported allowing only one request for additional
information. One commenter asserted that allowing only one request for
additional information would cause Corps personnel to request large
amounts of information, whether or not that information is necessary
for the review of the PCN.
The 45 day PCN review period begins on the date of receipt of a
complete PCN. If a complete PCN is submitted, the 45 day PCN review
period starts on the date of receipt. If the PCN is incomplete and the
prospective permittee submits the necessary information to make the PCN
complete, the 45 day PCN review period starts on the date the
additional information is received by the district engineer. The
verification of delineations of special aquatic sites will be conducted
during the 30 day completeness review period. A complete PCN is
comprised of the information listed in paragraph (b) of General
Condition 13. If the prospective permittee provides all of the relevant
information listed in paragraph (b), then the PCN is complete (provided
any delineations of special aquatic sites are accurate) and the 45 day
PCN review period begins. District engineers cannot request information
not listed in paragraph (b). If the district engineer believes that the
proposed work may result in more than minimal adverse effects on the
aquatic environment, based on the information required for the PCN,
then he or she should exercise discretionary authority and require an
individual permit to conduct a more thorough review of that activity.
Many commenters suggested that the Corps retain the 30 day PCN
review period. One commenter said that 15 days would be adequate for
the Corps to determine whether a complete PCN would qualify for NWP
authorization and another commenter suggested a 40 day review period.
Many commenters stated that the larger workload caused by the proposed
new and modified NWPs is not sufficient justification for increasing
the PCN review period to 45 days and requested that the Corps maintain
the 30 day period.
[[Page 12866]]
We contend that the 45 day period is necessary to determine if a
PCN is complete (within 30 days), conduct agency coordination if
necessary, and review the PCN to determine if the proposed work is
authorized by NWP. NWP 26 had a PCN review period of 45 days and we
believe it is necessary to retain this time period for the new NWPs.
Several commenters stated that paragraph (b) of General Condition
13 should clearly state what is required for a complete PCN, so that
applicants will know what they need to submit to the district engineer.
These commenters also said that clearly stating what is required for a
complete PCN would promote consistency. One commenter requested that
the Corps clarify whether the phrase ``additional information'' refers
only to the items necessary to make the PCN complete or to any other
information that the district engineer believes is necessary for the
review of the PCN. One commenter recommended adding a requirement for
prospective permittees to supply all information identified in the NWP,
special conditions, and regional conditions, as well as any information
required by the district engineer. Two commenters objected to the
amount of information required for PCNs.
Paragraph (b) of General Condition 13 lists all of the information
necessary for a complete PCN. Corps districts can provide checklists to
assist prospective permittees, especially if they have regional
conditions that specify additional information that must be submitted
with PCNs. The phrase ``additional information'' as used in the context
of General Condition 13 refers only to the information that is
necessary to make the PCN complete. We have limited the amount of
information that must be submitted with a PCN to the minimum necessary
to determine whether the proposed work will result in minimal adverse
effects on the aquatic environment, individually and cumulatively.
Two commenters said that the statement in General Condition 13
indicating that the permittee can commence work if the district
engineer does not respond to the PCN within 45 days is meaningless
because of the suspension procedures at 33 CFR 330.5(d)(2), which allow
the Corps to stop NWP activities in progress. These commenters said
that the permittee cannot safely proceed with the activity until he or
she receives authorization from the Corps.
Some prospective permittees may want assurance that the proposed
work is authorized by NWP and will not start work until a written
verification is received from the Corps. The procedures at 33 CFR
330.5(d)(2) provide a process where a permittee who begins work after
the 45 day PCN period expires can make their case that they have
expended resources and it would be inequitable for the Corps to modify
their project.
One commenter suggested that the PCN review period should be waived
in states using monthly coordination meetings to review and process
permit applications. One commenter suggested adding a fourth item in
paragraph (a), which would state that the prospective permittee shall
not begin the activity ``If the District Engineer has notified the
prospective permittee in writing that the notification is still
incomplete.''
Paragraph (a) of General Condition 13 does not prohibit district
engineers from responding to PCNs in a more timely manner provided all
other requirements are completed. Paragraph (a) clearly states that
district engineers will notify prospective permittees if their PCNs are
still incomplete, and since the 45 day clock does not start until the
PCN is complete, the prospective permittee may not start work.
One commenter stated that all PCNs should include delineations of
special aquatic sites. Another commenter recommended adding NWPs 3 and
31 to paragraph (b)(4). One commenter said that delineations of riffle
and pool complexes should not be required for PCNs because such a
requirement imposes burdens on applicants, especially on large projects
such as highways. A commenter suggested that the phrase ``submerged
aquatic vegetation'' used in paragraph (b)(4) should refer only to
vascular plants.
We do not agree that delineations of special aquatic sites should
be submitted with all NWP PCNs. Since NWPs 3 and 31 authorize
maintenance activities, it is not necessary to submit delineations of
special aquatic sites with PCNs for these activities. Maps indicating
stream segments containing riffle and pool complexes and their location
can be used as delineations of these special aquatic sites. It is not
necessary to map each riffle and pool complex within a stream. The
phrase ``submerged aquatic vegetation'' refers only to vascular plants,
not algae.
One commenter suggested that the Corps revise paragraph (b) of
General Condition 13 to require documentation of baseline conditions
for NWP 3 activities. This commenter also recommended that PCNs for NWP
3, 7, and 31 activities should include locations of disposal sites for
dredged or excavated material. One commenter said that detailed
mitigation and monitoring plans should be submitted with PCNs for
activities authorized by NWPs 12, 14, 39, 40, 41, 42, 43, and 44. One
commenter indicated that a statement discussing on-site avoidance and
minimization should be required for all NWP activities that require
PCNs. Another commenter asserted that a statement of avoidance and
minimization should be required for NWPs 12, 14, 40, 41, and 42. One
commenter said that the information required to be submitted with a PCN
is inadequate to ensure compliance with ESA.
The text of paragraph (iii) of NWP 3 states that the permittee
``should'' provide evidence to justify the extent of the proposed
restoration, but such evidence is not required. We do not agree that it
is necessary to include location maps of disposal sites for dredging or
excavation activities authorized by NWPs 3, 7, and 31, because the
material removed from waters of the United States will not be deposited
in waters of the United States, unless the district engineer issues a
separate authorization to discharge that material into waters of the
United States. Under that separate authorization process, the district
engineer will assess the impacts to the disposal site. We maintain our
position that compensatory mitigation plans, including monitoring
plans, submitted with a PCN can be either conceptual or detailed.
District engineers can require more detailed compensatory mitigation
plans through special conditions of the NWP authorization where
appropriate. We also do not agree that avoidance and minimization
statements should be required for other NWPs. We maintain our position
on this matter as it was discussed in the July 21, 1999, Federal
Register notice. The information that must be submitted with a PCN is
adequate for the Corps to make its initial determination concerning
compliance with ESA.
Two commenters noted that the Corps did not add a provision to
paragraph (b) of General Condition 13 that requires prospective
permittees to submit a list of names of Federally-listed endangered or
threatened species and the names or locations of historic properties
that may be affected by the proposed work. The Corps stated in the July
21, 1999, Federal Register notice (64 FR 39340) that it would add these
provisions to General Condition 13.
We have added these requirements to paragraph (b) of General
Condition 13 as subparagraphs (17) and (18), respectively. In addition,
we have modified subparagraph (b)(9) to comply
[[Page 12867]]
with the recent modification of NWP 29, which reduced the acreage limit
to \1/4\ acre (see 64 FR 47175). We have also added subparagraph
(b)(19), which describes the documentation that must be submitted with
the PCNs for certain NWP activities within 100-year floodplains.
In paragraph (d) of the proposed modification of General Condition
13, one commenter objected to the use of the term ``net'' in the
context of determining whether the adverse effects to the aquatic
environment are minimal, after considering compensatory mitigation that
offsets impacts authorized by NWPs. This commenter says that the
wording of the second sentence of paragraph (d) is contrary to the
Corps policy of determining that impacts authorized by NWPs are minimal
without considering mitigation. One commenter asked if the term
``mitigation'' in paragraph (d) refers to compensatory mitigation.
Another commenter requested a definition of the term ``adverse'' as it
is used in the context of paragraph (d). One commenter requested that
the Corps clarify whether the word ``work'' in paragraph (d) refers
only to mitigation work or the permitted activity.
The language of paragraph (d) complies with Corps regulations for
the NWP program, specifically 33 CFR 330.1(e)(3), which provides for
the use of compensatory mitigation to offset losses of waters of the
United States authorized by NWPs and ensure that the adverse effects on
the aquatic environment are minimal. The word ``mitigation'' in the
second sentence of paragraph (d) refers to the mitigation process. We
do not agree that it is necessary to provide a definition of the term
``adverse'' since the commonly used definition is applicable. The word
``work'' refers to the proposed activity, but the compensatory
mitigation is also considered when determining whether the adverse
effects on the aquatic environment are minimal.
Two commenters supported the 1 acre threshold for agency
coordination. One commenter suggested a \1/3\ acre threshold. A number
of commenters said that agency coordination should be required for all
NWP activities that require PCNs. One commenter recommended agency
coordination for activities that result in the loss of greater than 250
linear feet of stream bed. One commenter said that PCNs should be
coordinated with the U.S. FWS for any NWP activity that could affect
Federally-listed endangered or threatened species or their habitats.
Another commenter indicated that agency coordination of PCNs should be
conducted for any NWP activities in streams or aquatic resources of
natural importance.
We are reducing the 1 acre threshold for agency coordination to \1/
2\ acre because most of the new NWPs have maximum limits of \1/2\ acre.
There will be coordination of some PCNs because there are NWPs based on
other government programs, such as NWPs 17 and 38, that can authorize
activities that result in the loss of greater than \1/2\ acre of waters
of the United States. If those NWPs require submission of a PCN to the
district engineer and the proposed work will result in the loss of
greater than \1/2\ acre of waters of the United States, then the Corps
will conduct agency coordination. Activities that may affect Federally-
listed endangered or threatened species or their critical habitat will
be coordinated with the U.S. FWS or NMFS, as appropriate. District
engineers can conduct agency coordination in other circumstances at
their discretion.
One commenter asked for clarification whether a PCN is transmitted
to agencies upon receipt of the PCN or whether the PCN must be
determined to be complete before it is sent to the agencies. Two
commenters said that, for activities requiring agency coordination, the
applicant should mail copies of the PCN to the review agencies to
expedite the PCN process. One commenter recommended adding the Federal
Emergency Management Agency (FEMA) to the list of agencies for
coordination. Another commenter said that the Corps should provide
written responses to agency comments received in response to PCNs. One
commenter recommended inserting the word ``aquatic'' between the words
``adverse environmental'' in paragraph (e).
We do not start agency coordination until we determine that the PCN
is complete. It would not be advantageous for a prospective permittee
to submit a PCN directly to review agencies because the PCN may not be
complete. District engineers can, at their discretion, include FEMA
with the other review agencies. We do not agree that district engineers
should provide written responses to agency comments, except where
Essential Fish Habitat (EFH) conservation recommendations are received
from NMFS in response to a PCN. There is a statutory requirement in the
Magnuson-Stevens Fishery Conservation and Management Act for Federal
action agencies to provide written responses to EFH conservation
recommendations. We have modified paragraph (e) to address this
requirement. We agree that we should include the word ``aquatic'' in
the first sentence of paragraph (e).
Two commenters opposed the proposed changes to the agency
coordination period. Three commenters said that 15 days is enough time
for agency coordination. Other commenters suggested 5, 10, or 30 days
for agency coordination. One commenter recommended 45 days for agency
coordination, with the ability for agencies to receive an extension of
time. One commenter requested clarification whether the 25 day agency
review period is added to the 45 day PCN review period or whether the
agency coordination process occurs during the 45 day PCN review period.
One commenter said that the 25 day agency coordination period conflicts
with ESA regulations, which provide 30 days to respond to a request for
a list of species that may occur in the project area.
We will maintain the 10 day period for agencies to request an
additional 15 days to provide substantive, site-specific comments on
PCNs. Twenty-five days is sufficient for agencies to comment on PCNs.
The agency coordination process occurs during the 45 day PCN review
period. During the agency coordination period, the Corps is not
requesting a list of Federally-listed endangered or threatened species
that may be in the project area. Therefore, the agency coordination
period does not violate ESA regulations.
Several commenters objected to the text in paragraph (f) that
requires wetland delineations to be performed in accordance with the
current method required by the Corps. These commenters assert that this
language allows Corps personnel to use methods and criteria that are
not in the 1987 Corps of Engineers Wetlands Delineation Manual and
expand the Corps jurisdiction. These commenters said that the text of
this paragraph should be revised to specifically reference the 1987
Corps of Engineers Wetlands Delineation Manual. Another commenter
recommended that paragraph (f) include a statement that the permittee
is responsible for the accuracy of the delineation of special aquatic
sites.
We do not agree with these commenters. The only currently
acceptable method that the Corps uses for delineating wetlands is the
1987 Corps of Engineers Wetlands Delineation Manual and associated
guidance. We will not change the text of paragraph (f) because the
required delineation manual may change in the future.
Several commenters recommended combining paragraph (g) of General
[[Page 12868]]
Condition 13 with General Condition 19 so that the mitigation
requirements of the NWPs would be in one general condition. One
commenter suggested that deed restrictions and protective covenants
should be required as part of a compensatory mitigation proposal
submitted with a PCN. One commenter recommended that the Corps
reinstate the following language into subparagraph (ii) of paragraph
(g): ``* * *should consider mitigation banking and other forms of
mitigation including contributions to wetland trust funds, in lieu fees
to non-profit land restoration and stewardship organizations, State or
county natural resource management agencies, where such fees contribute
to the restoration, creation, replacement, enhancement, or preservation
of wetlands.''
We have moved paragraph (g) of General Condition 13 to General
Condition 19. Prospective permittees can submit either conceptual or
detailed compensatory mitigation proposals with their PCNs, but they
are not required to submit deed restrictions or protective covenants at
that time. As special conditions to a NWP verification, the district
engineer may require deed restrictions or protective covenants for
compensatory mitigation projects. We do not agree that it is necessary
to put the referenced text back into the general condition because
General Condition 19 allows district engineers the flexibility to
consider all appropriate forms of compensatory mitigation, including
mitigation banks and other consolidated approaches to compensatory
mitigation.
One commenter objected to the statement in paragraph (g) of the
proposed modification of General Condition 13 that identifies
mitigation banks, in lieu fee programs, and other types of consolidated
mitigation as preferred methods. This commenter said that if
compensatory mitigation is necessary, the method should be at the
discretion of the applicant and consider economic and environmental
factors. This commenter also stated that the Corps should only
determine if the compensatory mitigation method chosen by the applicant
is appropriate.
Our preference for consolidated compensatory mitigation methods
such as mitigation banks does not prohibit the use of other methods to
provide compensatory mitigation, if the district engineer determines
that the other methods are appropriate and adequately offset losses of
aquatic resource functions and values. General Condition 19 clearly
states that mitigation must be practicable, and the district engineer
will consider costs and environmental factors when determining if the
prospective permittee's compensatory mitigation proposal is acceptable.
Two commenters stated that the Corps should post PCNs on the
Internet. Another commenter concurred with the Corps position against
posting PCNs on the Internet, stating that such a process would result
in delays to the regulated public and provide no additional value to
the review of PCNs.
As discussed in the July 21, 1999, Federal Register notice, we
maintain our position that posting of PCNs on Internet home pages would
provide no added value to our review of these PCNs.
This general condition is adopted with the modifications discussed
above.
15. Use of Multiple Nationwide Permits: In the July 21, 1999,
Federal Register notice, we proposed to modify this general condition
to ensure that the use of more than one NWP to authorize a single and
complete project will result in minimal adverse effects on the aquatic
environment.
One commenter supported the proposed modification of General
Condition 15. Many commenters objected to the proposed modification of
this general condition, stating that it would prohibit the
authorization of activities with minimal adverse effects. One commenter
said that the proposed modification is contrary to 33 CFR 330.6(c) and
must be addressed through rulemaking. A number of commenters indicated
that the use of more than one NWP to authorize a single and complete
project should be unrestricted because of the low acreage limits of the
proposed new and modified NWPs. Several commenters objected to
permittees using more than one NWP to authorize a single and complete
project. One commenter said that the proposed modification of this
general condition will cause more piecemealing of activities and
discourage watershed-based planning and compensatory mitigation.
The modification of General Condition 15 is necessary to ensure
that the use of more than one NWP to authorize a single and complete
project does not result in more than minimal adverse effects on the
aquatic environment, individually and cumulatively. The proposed
modification is not contrary to 33 CFR 330.6(c) because that provision
in the NWP regulations simply states that two or more different NWPs
can be combined to authorize a single and complete project. With the
modification of General Condition 15, we are not prohibiting the use of
more than one NWP to authorize a single and complete project. Instead,
we are simply imposing an acreage limit based on the maximum specified
acreage limit of those NWPs used to authorize a single and complete
project. We do not agree that the modification of General Condition 15
will encourage piecemealing of activities, since the definition of the
term ``single and complete project'' is clearly defined at 33 CFR
330.2(i) and this definition has not changed. The modification of this
general condition is adopted as proposed.
16. Water supply intakes: In the July 21, 1999, Federal Register
notice, we did not propose any changes to this general condition. One
commenter objected to this general condition, stating that it is too
vague, excessive, and difficult to manage. This commenter recommend
that the Corps require submission of a PCN when a proposed activity is
within 1 mile upstream of a public water supply intake.
District engineers will determine whether an activity is subject to
this general condition. Imposing a notification requirement based on a
distance from an intake structure is not appropriate for a national
condition, but division engineers can regionally condition the NWPs to
establish specific distances from public water supply intakes. This
general condition is adopted without change.
17. Shellfish Beds: In the July 21, 1999, Federal Register notice,
we proposed to change the title of this general condition from
``Shellfish Production'' to ``Shellfish Beds.'' We also proposed to
change the phrase ``concentrated shellfish production'' to
``concentrated shellfish populations'' because the word ``production''
implies that the general condition applies only to areas actively
managed for shellfish production.
Two commenters recommended that the Corps change this general
condition from a prohibition against activities in areas of
concentrated shellfish populations to a notification requirement when
any proposed NWP activity may cover concentrated shellfish populations.
One commenter objected to changing the title of this general condition
from ``Shellfish Production'' to ``Shellfish Beds.'' This commenter
also indicated that the restrictions imposed by this general condition
are too broad.
With the exception of NWP 4, we do not agree that the NWPs should
authorize activities in concentrated shellfish beds. Changing the terms
of this general condition from ``shellfish production'' to ``shellfish
beds'' is necessary to ensure that activities authorized by NWPs result
in minimal
[[Page 12869]]
adverse effects on the aquatic environment, especially in areas of
concentrated shellfish populations that may be harvested for human
consumption. The modification of this general condition is adopted as
proposed.
18. Suitable Material: In the July 21, 1999, Federal Register
notice, we did not propose any changes to this general condition, but
one commenter requested further definitions of suitable material and
debris that can be used.
We do not agree that it is necessary to further define what
constitutes ``suitable material'' for the purposes of this general
condition. It is impractical to provide a comprehensive list of
unsuitable materials. If there are questions concerning the suitability
of a particular material, the permittee should contact the appropriate
Corps district office and ask if that material is considered suitable
for the purposes of General Condition 18. This general condition is
adopted without change.
19. Mitigation: In the July 21, 1999, Federal Register notice, we
proposed several changes to this general condition. Several commenters
recommended combining the mitigation information in paragraph (g) of
General Condition 13 with this general condition. One commenter stated
that this general condition is contrary to the 1990 mitigation MOA.
Numerous commenters said that General Condition 19 should specify that
mitigation is required, to the maximum extent practicable, in the same
watershed as the impact site.
We have combined the provisions of paragraph (g) of General
Condition 13 with the provisions of General Condition 19, so that the
mitigation requirements for the NWPs are in General Condition 19. The
1990 mitigation MOA applies only to standard individual permits, not
general permits such as the NWPs. Although we encourage permittees to
locate compensatory mitigation in the same watershed as the site of the
authorized work, there are occasions where it may be necessary or more
beneficial to the aquatic environment to implement compensatory
mitigation outside of the watershed. For example, restoring wetlands in
a degraded watershed to compensate for losses of wetlands in a
watershed with less impacts may be better for the overall aquatic
environment.
One commenter suggested that General Condition 19 should contain a
provision that allows district engineers to determine that compensatory
mitigation is unnecessary if the adverse effects on the aquatic
environment are minimal without compensatory mitigation. Several
commenters objected to the phrase in the second sentence of the
proposed modification of General Condition 19 which states that
compensatory mitigation is required ``__* * * at least to the extent
that adverse environmental effects to the aquatic environment are
minimal.'' These commenters contend that this language allows the Corps
to require mitigation in excess of the amount necessary to offset the
authorized impacts.
In accordance with the NWP regulations, district engineers can
determine that compensatory mitigation is not necessary to ensure that
the authorized work results in minimal adverse effects on the aquatic
environment. District engineers will require only the amount of
compensatory mitigation that is needed to ensure that the net adverse
effects on the aquatic environment are minimal, individually and
cumulatively.
One commenter supported the inclusion of enhancement and
preservation in the definition of compensatory mitigation. Another
commenter said that the definition of mitigation should be expanded
from restoration, creation, enhancement, preservation, and vegetated
buffers to include avoiding, minimizing, rectifying, reducing, or
compensating for losses of aquatic resources to make it consistent with
paragraph (g) of General Condition 13, which recognizes this broader
definition.
Since we have moved the provisions of paragraph (g) of General
Condition 13 to General Condition 19, this general condition recognizes
these types of mitigation. Rectifying impacts to the aquatic
environment is similar to the enhancement and restoration of aquatic
resources. Reducing impacts to the aquatic environment is similar to
minimization.
A number of commenters objected to the removal of the phrase
``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'' which was in December 13,
1996, version of ``Section 404 Only'' Condition 4, from which General
Condition 19 was derived. These commenters stated that the removal of
this language conflicts with some recent statements by the Corps,
including preferences for mitigation banks and in lieu fee programs.
One commenter indicated that permittees should have options for
providing compensatory mitigation, including the ability to utilize
off-site compensatory mitigation (e.g., mitigation banks and in lieu
fee programs) and out-of-kind compensatory mitigation (e.g., vegetated
buffers next to open waters).
The modification of General Condition 19 does not conflict with our
preference for using consolidated compensatory mitigation methods to
offset losses of waters of the United States authorized by NWPs.
General Condition 19 simply states that the district engineer will
require, when necessary, the restoration, creation, enhancement, or
preservation of aquatic resources to ensure that the adverse effects on
the aquatic environment are minimal, individually and cumulatively.
That compensatory mitigation can be provided by individual compensatory
mitigation projects or consolidated mitigation methods, such as
mitigation banks. District engineers have flexibility to determine the
appropriate options for compensatory mitigation on a case-by-case
basis. For activities authorized by NWPs, the selected compensatory
mitigation method should be based on what is best for the aquatic
environment and what is practicable for the permittee.
One commenter recommended modifying the vegetated buffer
requirements in General Condition 19 to allow district engineers to
waive these requirements if it is impractical for the permittee to
establish and maintain vegetated buffers. Another commenter suggested
that General Condition 19 should be modified to place more emphasis on
on-site avoidance and minimization so that large scale mitigation such
as vegetated buffers would be required only in exceptional
circumstances. Two commenters said that the text of General Condition
19 should be rewritten to acknowledge that NWPs authorize activities
that have minimal adverse effects on the aquatic environment and that
most mitigation for NWP activities would consist of avoidance and small
restoration projects, not the large scale mitigation that would result
from establishing 50 to 125 foot wide vegetated buffers. One commenter
stated that General Condition 19 does not contain specific requirements
for maintaining and protecting vegetated buffers and asked how the
maintenance of vegetated buffers will be guaranteed. One commenter
objected to requiring vegetated buffers to be comprised of native
species, because it would necessitate the removal of undesirable
species in existing riparian buffers.
We have added the phrase ``to the maximum extent practicable'' to
the
[[Page 12870]]
second sentence in paragraph (c) to clarify that vegetated buffers next
to open waters can be required as compensatory mitigation only if such
a requirement is practicable for the project proponent. District
engineers will determine on a case-by-case basis whether vegetated
buffers are necessary and the appropriate width of those vegetated
buffers. Recommended widths of vegetated buffers are discussed in a
previous section of this Federal Register notice. We have also added a
provision to General Condition 19 that limits the proportion of
compensatory mitigation that can be provided by vegetated buffers next
to open waters. If compensatory mitigation for wetland impacts is
necessary to ensure that an NWP activity results in minimal adverse
effects on the aquatic environment and there are open waters on the
project site, any vegetated buffer will comprise no more than 33% of
the remaining compensatory mitigation acreage after the permanently
filled wetlands have been replaced on a one-to-one acreage basis. Of
course, many vegetated buffers will be wetlands and can be included as
compensatory mitigation for wetland impacts.
Vegetated buffers are an alternate method of compensatory
mitigation and should be protected in the same manner as wetland
compensatory mitigation sites (i.e., through deed restrictions,
conservation easements, or other appropriate legal means). The language
of General Condition 19 does not require the removal of non-native
plant species from the area where the vegetated buffer will be
established and maintained. If the permittee is planting the vegetated
buffer, he or she should use native plant species. Vegetated buffer
zones that are already established with mature trees or shrubs can be
maintained without removing those plants to replace them with native
species. This general condition is adopted with the modifications
discussed above.
20. Spawning Areas: In the July 21, 1999, Federal Register notice,
we proposed to modify this general condition by adding the word
``important'' before the phrase ``spawning areas.'' The proposed
modification would limit this general condition to spawning areas used
by species harvested commercially for human consumption.
One commenter objected using the word ``important'' in this general
condition, stating that it ignores the fact that commercially harvested
fish species often rely on non-commercial species for survival . Two
commenters said that this general condition should apply to all
spawning areas. One commenter recommended expanding the scope of
General Condition 20 to spawning areas of importance to recreational
fisheries. One commenter suggested that the phrase ``important spawning
areas'' should be replaced with ``spawning areas that support
Federally-listed or special status fish.'' A commenter said that
spawning areas that are important for state-listed endangered or
threatened species or ecologically important fish species can be
addressed through General Condition 25, Designated Critical Resource
Waters. One commenter requested that the Corps provide a definition of
the term ``substantial'' as it is used in the context of this general
condition because many species of fish can tolerate high turbidity
levels for short periods of time.
We maintain our position that the terms of this general condition
should be limited to spawning areas used by species that are harvested
commercially for human consumption. Division engineers can impose
regional general conditions to restrict or prohibit activities in
spawning areas used by other species. We cannot provide a definition of
the word ``substantial'' as it is used in the context of this general
condition because it is more appropriate to make this determination on
a case-by-case basis, depending on the characteristics of the project
site and the species that may be affected. This general condition is
adopted as proposed.
21. Management of Water Flows: In the July 21, 1999, Federal
Register notice, we proposed to modify this general condition to
require permittees to maintain, to the maximum extent practicable,
preconstruction surface water flow patterns.
Three commenters supported the proposed modification of General
Condition 21. Several commenters objected to the proposed modification.
One commenter suggested that the text of the proposed modification
should be withdrawn and replaced with the original language of
``Section 404 Only'' Condition 6. A number of commenters stated that
the Corps does not have the statutory authority to impose the
requirements of this general condition. Two commenters indicated that
the proposed modification of General Condition 21 is contrary to 33 CFR
320.4(m). One commenter said that best management practices should be
required instead of this general condition. Numerous commenters stated
that the requirements of General Condition 21 duplicate existing state
or local programs. One commenter expressed concern that this general
condition will impose requirements that are contrary to local standards
or watershed plans. One commenter said that the requirements of this
general condition will make the NWP program useless because all dredge
and fill activities affect water flow.
We have statutory authority, through section 404 of the Clean Water
Act, to impose General Condition 21 because this general condition is
necessary to ensure that activities authorized by NWPs result in
minimal adverse effects on the aquatic environment. Flooding and
erosion that results from changes in surface water flows can have more
than minimal adverse effects on the aquatic environment. The
requirements of this general condition are not contrary to 33 CFR
320.4(m) because that section of the Corps regulations, which addresses
the allocation of water supplies, is unrelated to the intent of General
Condition 21.
District engineers can refer to best management practices to assist
permittees in complying with this general condition, but we do not
agree that best management practices are more efficient methods of
achieving the objectives of General Condition 21. Although the
requirements of this general condition may duplicate existing state or
local programs, it is important to note that not all state and local
governments address the management of water flows. Therefore, we
believe that it is necessary to impose, on a nationwide basis, the
requirements of General Condition 21 on activities authorized by NWPs.
If the state or local government adequately addresses the management of
surface water flows, the district engineer will defer to those
agencies. However, if the state or local government does not adequately
address the management of water flows, district engineers will
determine if the proposed work complies with General Condition 21 and
may impose special conditions on the NWP to ensure that the authorized
work results in minimal adverse effects on surface water flows. If the
activity is part of a larger system designed to manage water flows,
then activity-specific management of water flows is not required. It is
unlikely that this general condition will result in requirements that
are contrary to watershed plans, because the intent of General
Condition 21 is to ensure that activities authorized by NWPs result
only in minimal adverse effects on the aquatic environment.
Although most discharges of dredged or fill material into waters of
the United States authorized by NWPs alter surface water flow patterns,
these changes are
[[Page 12871]]
usually minimal or could be mitigated to the minimal adverse effect
level and would comply with General Condition 21. If more than minimal
changes to surface water flows will occur as a result of the proposed
work, the activity should be reviewed through the individual permit
process or the activity should be modified with mitigation to comply
with General Condition 21.
Two commenters objected to the proposed modification, stating it is
too subjective. These commenters said that a lack of specific criteria
will cause inconsistent and arbitrary implementation. These commenters
requested specific criteria that will allow consistent determination of
compliance. One commenter stated that the general condition should
specify a storm event magnitude that will be used to determine
compliance, because requiring no change in water flows for a 2-year
storm event is different that requiring no change in water flows for a
100-year storm event. A commenter requested clarification whether the
general condition addresses stream flow, overland flow, and/or
stormwater flow. One commenter objected to the proposed modification of
this general condition because it requires only qualitative analysis.
Two commenters opposed the proposed modification of General Condition
21 because the Corps has not explained how compliance will be
determined, specifically how pre-construction and post-construction
water flows will be determined. One commenter recommended that the
Corps adopt the guidelines at 23 CFR Part 650 (i.e., the Federal
Highway Administration's regulations concerning bridges, structures,
and hydraulics) to address floodplain encroachments and provide
consistency for permit applicants.
We do not agree that specific criteria should be provided
nationally, because of the large variability in hydrologic regimes and
site conditions across the country. District engineers are better
suited to establish local qualitative criteria to determine compliance
with this general condition. As discussed in the July 21, 1999, Federal
Register notice, this general condition applies to general surface
water flow patterns over the course of a year, not to any particular
storm event. The types of water flows subject to this general condition
include both stream flows and overland flow. For example, this general
condition prohibits the use of NWPs to authorize activities that will
redirect substantial amounts of surface water to adjoining property
owners and more than minimally increase the magnitude of flooding on
their property.
To determine compliance with this general condition, district
engineers will rely on their judgement and knowledge of local water
flow patterns. District engineers will not require detailed hydrologic
analyses or engineering studies.
Two commenters stated that requiring permittees to maintain, to the
maximum extent practicable, surface water flows from the site is an
impossible standard to meet, since such a requirement allows no change
from pre-construction water flow conditions. Two commenters said that
the phrase ``to the maximum extent practicable'' is an arbitrary
threshold and will result in disputes between the Corps and project
proponents with no mechanism for resolution.
The phrase ``to the maximum extent practicable'' provides
flexibility for permittees to comply with the requirements of General
Condition 21. This general condition does not establish a ``no effect''
requirement for compliance. It does not prohibit changes to surface
water flows. General Condition 21 merely requires that the activity
cause only minimal changes to surface water flows and maintain those
flows so that they are similar, not necessarily identical, to
preconstruction flow conditions. If changes to surface water flows will
be more than minimal, the district engineer will either mitigate those
impacts, or if that is not practicable, assert discretionary authority
and require an individual permit.
Several commenters said that the analysis required to determine
compliance with General Condition 21 is costly and burdensome on
project proponents and is inappropriate for NWP activities. One
commenter recommended that the text of this general condition include a
statement requiring district engineers to defer to state and local
agencies that have adequate requirements to manage water flows. A
commenter suggested that General Condition 21 should be modified to
provide greater flexibility for flood control and stormwater management
activities, because this would allow permittees to demonstrate that
changes in water flows comply with state or local flood control
standards or benefit local hydrology or flow regimes. Another commenter
recommended that activities authorized by NWPs should also be designed
to allow the movement of aquatic organisms or require mitigation to
maintain those movements.
Since district engineers will not require detailed hydrologic or
engineering analyses, and must utilize qualitative analyses to
determine whether or not a particular activity complies with this
general condition, there will not be additional economic burdens on
prospective permittees. Although district engineers should defer to
state and local agencies if those agencies already impose adequate
requirements for maintaining surface water flows, we do not agree that
it is necessary to make this statement in the text of General Condition
21. We believe that the text of General Condition 21 provides adequate
flexibility for flood control and stormwater management activities
because it requires maintenance of surface water flows to the maximum
extent practicable. In addition, this general condition does not
prohibit the construction of facilities that impound water, such as
retention or detention ponds, if the primary purpose of the project is
to impound water. General Condition 4, Aquatic Life Movements, already
addresses the issues raised by the last comment in the previous
paragraph.
In the text of General Condition 21, we have changed the word
``project'' to ``activity'' to be consistent with the other general
conditions, which refer to activities. This general condition is
adopted with the modification discussed above.
23. Waterfowl Breeding Areas: In the July 21, 1999, Federal
Register notice, we did not propose any changes to this general
condition. One commenter recommended expanding this general condition
to include all wetland-dependent migratory bird species.
We do not agree with this comment, because the intent of this
general condition is to ensure that the NWPs do not authorize
activities that result in more than minimal adverse effects to
waterfowl, not all migratory bird species that may utilize wetlands.
This general condition is retained without change.
24. Removal of Temporary Fills: In the July 21, 1999, Federal
Register notice, we did not propose any changes to this general
condition. One commenter requested clarification as to what constitutes
a ``temporary'' fill by establishing time limits. Another commenter
said that certain temporary fills, such as gravel, may be used by
project proponents and left in stream beds to enhance habitat for
spawning fish species. This commenter suggested that the Corps modify
this general condition to allow temporary fills to remain in waters of
the United States if those fills are for a permit requirement of any
other regulatory agency.
District engineers will determine, on a case-by-case basis, what
constitutes a temporary fill. Fills that are left in
[[Page 12872]]
waters of the United States as a condition of permit issued by another
agency must also be authorized by Section 404 of the Clean Water Act
(and Section 10 of the Rivers and Harbors Act if the fill is in
navigable waters). These fills may be authorized by NWPs, regional
general permits, or individual permits. This general condition is
retained without change.
General Comments on Proposed General Conditions 25, 26, and 27: In
the July 21, 1999, Federal Register notice, we proposed three new NWP
general conditions that would limit the use of NWPs in designated
critical resource waters, impaired waters, and waters of the United
States within 100-year floodplains.
A number of commenters supported the three proposed NWP general
conditions. Many commenters objected to the proposed general
conditions, stating that there is no need for these restrictions.
Several commenters opposed these three general conditions, because they
duplicate other programs. Several commenters stated that the proposed
general conditions will not provide any environmental benefits. Several
commenters said that concerns for critical resource waters, impaired
waters, and 100-year floodplains can be adequately addressed through
the PCN process and the ability of district engineers to exercise
discretionary authority on those activities that will result in more
than minimal adverse effects on the aquatic environment. Other
commenters stated that regional conditions would adequately address
these issues.
After reviewing the comments addressing the three proposed NWP
general conditions, we have decided to adopt proposed General Condition
25, Designated Critical Resource Waters, and proposed General Condition
27, Fills Within the 100-year Floodplain. We have decided to withdraw
proposed General Condition 26, Impaired Waters. Proposed General
Condition 27 has been substantially modified, as discussed below. This
general condition has been designated as General Condition 26, Fills
Within 100-year Floodplains. The new general conditions, in conjunction
with the 1/2 acre limit for most of the new NWPs, will provide
substantial environmental benefits. We do not agree that regional
conditions are a better mechanism to address these issues, since the
new general conditions address issues of national concern.
Several commenters said that the proposed new NWP general
conditions will substantially reduce the regulated public's ability to
efficiently obtain authorization for activities that have minimal
adverse effects on the aquatic environment. Two of these commenters
remarked that it will be more difficult to obtain authorization for
maintenance activities. Several commenters stated that the proposed
general conditions replace the ``minimal adverse effect'' criterion of
the NWPs with a ``no effect'' criterion. Numerous commenters asserted
that the assumption that activities in designated critical resource
waters, impaired waters, and 100-year floodplains will result in more
than minimal adverse effects on the aquatic environment is incorrect.
These commenters said that many activities authorized by NWPs in these
areas may actually improve water quality or provide essential public
health and safety functions.
The two new NWP general conditions will not make it more difficult
to obtain authorization for maintenance activities. Many maintenance
activities are eligible for the Section 404(f) exemptions. NWP 3
activities in designated critical resource waters require notification
to the district engineer but may be authorized. General Condition 26
does not restrict NWP 3 or NWP 31 activities in 100-year floodplains.
The intent of the new general conditions is to ensure that the NWPs
comply with the statutory requirements of Section 404(e) of the Clean
Water Act. Although these conditions will limit the use of NWPs in
certain waters, activities in these waters may be authorized by other
forms of DA permits, such as regional general permits or standard
permits.
One commenter stated that the proposed general conditions are
contrary to the Corps goal of focusing its limited resources on those
activities with the potential for greater environmental impacts. Two
commenters said that without additional resources to implement and
enforce the three proposed general conditions, there will be a decrease
in environmental protection. One of these commenters said that these
general conditions are too confusing and difficult to enforce. Two
commenters objected to these general conditions because they
substantially reduce the geographic area in which the NWPs can be used.
One commenter stated that the proposed general conditions improperly
change the focus of the NWPs from the type of activity to the location
of the activity. Another commenter said that the proposed general
conditions are confusing because of specific inconsistencies, such as
the imposition of an acreage limit in proposed General Condition 26
without similar acreage limits in proposed General Conditions 25 and 27
or the different applicability of these general conditions for specific
NWPs. For example, NWP 39 cannot be used in the 100-year floodplain but
it can be used to authorize discharges of fill material into impaired
waters and adjacent wetlands.
We agree that the proposed general conditions may have resulted in
a decrease in environmental protection. However, the changes we have
made will ensure that the conditions will substantially increase
protection of the aquatic environment. General Condition 25 restricts
the use of NWPs in high value waters, which is analogous to the
increased emphasis on regional conditioning we placed on the proposed
new and modified NWPs. General Condition 26 will minimize adverse
effects to the flood-holding capacity of 100-year floodplains, as well
as enhance protection of free-flowing streams in the regulated
floodway. Although the two new NWP general conditions reduce the
geographic scope of the NWPs, these conditions are necessary to ensure
that the NWPs do not authorize activities with more than minimal
adverse effects on the aquatic environment. The location of a waterbody
or wetland has a substantial influence on the functions and values it
provides. For example, a wetland within a 100-year floodplain may
provide fish spawning habitat that is not provided by an isolated
wetland. The differences in the requirements between the two general
conditions are necessary because each of these conditions addresses
different issues. Therefore, each of the new NWP general conditions
requires different restrictions or limitations to ensure that the NWPs
authorize activities with minimal adverse effects on the aquatic
environment.
25. Designated Critical Resource Waters: In the July 21, 1999,
Federal Register notice, we proposed a new general condition that would
limit the use of certain NWPs in designated critical resource waters.
Many commenters expressed their support for the proposed general
condition. A number of commenters opposed this general condition. One
commenter said that General Condition 25 will severely restrict the NWP
program and make it unusable. Some commenters stated that NWPs should
not authorize activities in designated critical resource waters.
Numerous commenters said the proposed general condition is based on
an invalid assumption that all discharges of dredged or fill material
into designated critical resource waters will always jeopardize any
essential functions that make these waters high value. These commenters
stated that
[[Page 12873]]
this assumption is invalid because the NWPs authorize activities with
minimal adverse effects on the aquatic environment. One commenter said
that this general condition imposes a ``no effect'' standard instead of
a ``minimal effect'' standard. Many commenters suggested that
protection of designated critical resource waters is more effectively
provided through regional conditions imposed by division engineers and
the PCN process. The PCN process allows district engineers to add
special conditions to NWP authorizations or exercise discretionary
authority to require individual permits for activities that result in
more than minimal adverse effects on the aquatic environment.
General Condition 25 does not prohibit the use of all NWPs in
designated critical resource waters or adjacent wetlands. Only those
NWP activities that are likely to result in more than minimal adverse
effects on designated critical resource waters are restricted by
General Condition 25. Although regional conditions and the PCN process
may have fully protected designated critical resource waters, we
believe that for the waters listed nationwide restrictions are
appropriate. We believe that a national condition is necessary for
certain categories of waters.
One commenter said that NOAA-designated marine sanctuaries should
be subject to the same restrictions that General Condition 7 imposes on
activities in Wild and Scenic Rivers. This commenter stated that the
use of NWPs should be allowed if those activities are approved by the
agency managing those sanctuaries. This commenter also said that
National Estuarine Research Reserves do not require extra protection
through General Condition 25 because they are already protected by
coastal states and NOAA.
We do not agree that NOAA-designated marine sanctuaries should be
subject to the same restrictions as Wild and Scenic Rivers. We believe
that the listed NWPs would likely result in more than minimal adverse
effects to these important waters. We believe that restricting the use
of certain NWPs in National Estuarine Research Reserves is necessary.
Many commenters stated that existing General Condition 7 provides
adequate protection for Wild and Scenic Rivers, and recommended the
removal of Wild and Scenic Rivers from the list of designated critical
resource waters in General Condition 25. Several commenters opposed the
inclusion of critical habitat for Federally-listed endangered or
threatened species as designated critical resource waters, stating that
General Condition 11 already provides sufficient protection for these
areas. Numerous commenters objected to the provision in General
Condition 25 that requires concurrence from the U.S. FWS or NMFS that
the proposed work complies with General Condition 11. One of these
commenters said that this provision is contrary to the Endangered
Species Act (ESA), which requires consultation only for those
activities that adversely affect Federally-listed endangered or
threatened species or their critical habitat. Two commenters indicated
that this provision inappropriately shifts the responsibility for
determining effects on endangered or threatened species from the Corps
to the U.S. FWS or NMFS. One commenter said that this provision is not
strong enough.
General Condition 25 merely states that activities involving
discharges of dredged or fill material into Wild and Scenic Rivers must
comply with General Condition 7. This general condition does not impose
any additional restrictions on NWP activities in Wild and Scenic
Rivers. We believe that the provisions concerning designated critical
habitat for Federally-listed endangered or threatened species in
General Condition 25 are necessary to ensure compliance with ESA.
Moreover, we believe that designated critical habitat deserves the
highest level of protection, thus for the NWPs listed, we will seek the
concurrence of the FWS to ensure protection.
One commenter recommended the removal of state natural heritage
sites from the list of designated critical resource waters. Another
commenter said that General Condition 25 will prohibit the use of many
NWPs in certain counties, since some state natural heritage sites
encompass entire counties. One commenter requested clarification as to
what constitutes a ``state natural heritage site.''
We are maintaining state natural heritage sites in the list of
designated critical resource waters because these areas typically
contain high value waters. A state natural heritage site has been
designated, through a state legislative or regulatory process, as an
area that warrants additional protection due to its natural resource
characteristics. Therefore, we believe that authorizing projects under
NWPs would likely result in more than minimal adverse effects on the
aquatic environment.
One commenter objected to including outstanding national resource
waters in the list of designated critical resource waters. This
commenter said that this general condition should be limited to waters
that are defined by Federal standards, not state standards, because
there is a need for consistency across state boundaries. Two commenters
said that outstanding national resource waters already receive special
protection from states through an existing program. These commenters
cited EPA's regulations at 40 CFR 131.12(a)(3). Three commenters
supported the requirement for the legislature or governor to designate
waters with particular environmental or ecological significance. Three
commenters said that other state or local officials should be able to
designate waters with environmental or ecological significance that
should be subject to this general condition.
We believe that outstanding national resource waters should be
subject to the provisions of General Condition 25, because these waters
are typically high value waters. We maintain our position that
outstanding national resource waters must be officially designated by
the state as having particular environmental or ecological
significance. To be subject to General Condition 25, those outstanding
national resource waters must be identified and approved by the
district engineer after public notice and opportunity for comment. We
do not agree that state or local officials should be able to designate
additional waters that will be subject to General Condition 25, without
the district engineer providing an opportunity for public notice and
comment.
Three commenters supported allowing district engineers to include
additional waters after public notice and opportunity for comment.
Several commenters opposed this mechanism, because it would provide no
additional protection since these waters are already protected by state
and local governments. Two commenters indicated that waters identified
by Federal and state agencies as designated critical resource waters
should be subject to a public review process. Two commenters stated
that the use of the word ``include'' in the first sentence of General
Condition 25 implies that there are other waters that are considered to
be designated critical resource waters and subject to this general
condition. A commenter requested clarification as to what constitutes
an official designation as having particular environmental or
ecological significance. This commenter said that public notice at the
district level should be adequate to make this designation.
We have modified General Condition 25 to explicitly state that
district
[[Page 12874]]
engineers can designate additional critical resource waters after
notice and opportunity for public comment. This process is similar to
the NWP regional conditioning process whereby district engineers would
identify high value waters that should be subject to NWP restrictions.
Waters having particular environmental or ecological significance
should be designated by the governor or legislature, and the district
engineer can designate these waters as critical resource waters for the
purposes of General Condition 25, after public notice and opportunity
for comment. In contrast to the regional conditioning process, the
district engineer would approve any additional critical resource waters
for the purposes of General Condition 25.
One commenter asked why wetlands adjacent to designated critical
resource waters are included in General Condition 25. Several
commenters recommended that the Corps replace the word ``adjacent''
with ``contiguous'' to clarify the geographic scope of this general
condition and make it easier to implement. One commenter stated that
adjacent wetlands are not clearly defined for the purposes of this
general condition. Another commenter remarked that waters adjacent to
designated critical habitat are not subject to the same ESA
requirements as designated critical habitat and should not be treated
as such.
Wetlands adjacent to designated critical resource waters are
included in General Condition 25 because these wetlands can have
substantial influences on the quality of these waters. We believe that
this is true for all critical resource waters, including designated
critical habitat for endangered species. For the purposes of this
general condition, the definition term ``adjacent'' is the same as the
definition at 33 CFR 328.3(c).
Several commenters requested that the Corps define what constitutes
an ``effect'' to a designated critical resource water. Two commenters
indicated that it is difficult for the public to know which waters are
subject to General Condition 25 because that information is not readily
available and the list of applicable waters can change frequently.
Several commenters suggested that the Corps produce maps of designated
critical resource waters and subject those maps to a public comment
process.
For the purpose of General Condition 25, the term ``directly
affecting'' refers to activities involving discharges of dredged or
fill material into waters of the United States. Prospective permittees
should contact the appropriate Corps district to determine if any
designated critical resource waters occur in the vicinity of the
proposed work. Corps districts can produce maps of designated critical
resource waters to aid in the implementation of this general condition,
but such maps are not required.
Several commenters said that states can restrict the use of NWPs in
certain waterbodies through the Section 401 water quality certification
process and that state-designated waters should not be subject to
General Condition 25. Another commenter stated that the Corps should
not restrict discharges into designated critical resource waters if
other Federal or state agencies have not imposed restrictions on those
waters.
We believe that the provisions in General Condition 25 are
necessary to ensure that the NWPs only authorize activities with
minimal adverse effects on the aquatic environment, individually or
cumulatively. Other Federal and state agencies may not have the
regulatory authority to restrict or prohibit discharges of dredged or
fill material into designated critical resource waters. Therefore, it
is appropriate for the Corps to impose such restrictions, since such
discharges are regulated by the Corps under Section 404 of the Clean
Water Act.
One commenter recommended adding NWP 13 to the list of NWPs that
are prohibited in this general condition. Another commenter suggested
that NWP 8 should be added to the list of NWPs that cannot be used in
designated critical resource waters. Many commenters objected to the
inclusion of maintenance activities (e.g., NWPs 3 and 31) in General
Condition 25 because these activities have minimal adverse effects on
the aquatic environment and delaying the authorization of these
activities is unsafe and contrary to the public interest. Some
commenters suggested removing NWPs 7 and 43 from the list of prohibited
activities. Many commenters said that NWPs 12 and 14 should not be
restricted in these waters. Some of these commenters stated that
submission of a PCN to the district engineer is adequate to ensure that
the work results in minimal adverse effects on the aquatic environment.
Two commenters said that NWP 25 should not be subject to this general
condition. A commenter stated that NWP 35 should be included in the
list of NWPs that require notification. This commenter also indicated
that it is unnecessary to require a PCN for activities authorized by
NWPs 22, 27, 30, and 37.
We do not agree that NWPs 13 or 8 should be added to the list of
NWPs in paragraph (a) of General Condition 25. NWP 3 activities can
occur in designated critical resource waters, provided those activities
result in minimal adverse effects on the aquatic environment. The
maintenance of flood control facilities constructed in designated
critical resource waters could result in more than minimal adverse
effects on the aquatic environment, and should be reviewed through
other DA permit processes. We continue to believe that NWPs 7, 12, 14,
35, and 43 should be subject to the restrictions in paragraph (a). We
do not agree that the PCN process is a more effective mechanism to
review activities in designated critical resource waters. We believe
that the activities authorized by NWPs 22, 25, 27, 30, and 37, should
be reviewed on a case-by-case basis if they are located in designated
critical resource waters or adjacent wetlands.
Many commenters suggested additional waters that should be included
in the list of designated critical resource waters. Numerous commenters
recommended groundwater recharge areas and sources of drinking water as
designated critical resource waters. Other suggested waters include:
primary nursery areas and shellfish waters; streams that support cold
water fisheries; areas used by migratory birds; waters of the United
States in wilderness areas, national parks, and wildlife refuges; areas
identified by state natural heritage programs as supporting high
concentrations of rare species; vernal pools; stream segments and
waterbodies proposed for listing under section 303(d) of the Clean
Water Act; waters supporting salmonid fisheries; and wetlands that are
rare and difficult to replace, such as peatlands, potholes, vernal
marshes, playas, kettles, high altitude wetlands, and mature forested
wetlands.
Concerns regarding these waters are more effectively addressed
through other processes, such as regional conditioning of the NWPs or
case-specific review of PCNs. Division engineers can regionally
condition the NWPs to prohibit or limit their use in such high value
waters. District engineers will exercise discretionary authority and
require individual permits if activities proposed in designated
critical resource waters will result in more than minimal adverse
effects on the aquatic environment. Proposed General Condition 25 is
adopted with the modifications discussed above.
26. Impaired Waters: In the July 21, 1999, Federal Register notice,
we proposed a new general condition that
[[Page 12875]]
would limit the use of NWPs in waterbodies that are identified as
impaired through the Clean Water Act Section 303(d) process. The
sources of impairment considered for the proposed general condition
were: 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. The proposed limitation would also apply to wetlands
adjacent to the impaired waterbody.
Many commenters supported the proposed General Condition 26 and
many commenters opposed this proposed general condition. Numerous
commenters said that the NWPs should not authorize activities in
impaired waterbodies. A large number of commenters supported the
identification of impaired waters through the Clean Water Act Section
303(d) process. One commenter supported the exclusion of NWP 3 from the
1 acre limit imposed by General Condition 26. Two commenters stated
that the limitations in this general condition should apply to all
wetlands in the watershed or sub-basin, not only to those wetlands that
are adjacent to the impaired waters.
Those commenters that expressed opposition to the proposed general
condition stated that the limitations in General Condition 26 are
unnecessary and would provide no benefits for the environment. Many
commenters objected to the proposed general condition because they
believe that activities in waters of the United States may have no
effect on the actual cause of impairment. Numerous commenters objected
to the presumption in proposed General Condition 26 that NWP activities
would result in further impairment of waterbodies. Some commenters
indicated that certain NWP activities improve water quality. For
example, these commenters said that NWPs can authorize activities that
stabilize eroding stream banks, improve fish passage, improve the
quality of highway runoff, or decrease peak flows. Several commenters
believe that the Corps lacks the legal authority to impose this general
condition. One commenter said that General Condition 26 is unnecessary
because the quality of waters is improving. Several commenters stated
that the limitations of General Condition 26 place more value on
impaired waters than unimpaired waters. Two commenters indicated that
the requirements of this general condition make permittees responsible
for mitigating impacts to water quality that they did not cause.
Many commenters recommended using the PCN process and discretionary
authority to address impacts to impaired waters, instead of utilizing a
prohibition. A number of commenters said that the NWPs should be used
to authorize discharges of dredged or fill material into impaired
waters and adjacent wetlands if the adverse effects on the aquatic
environment are minimal. Two commenters stated that the criterion of
``no further impairment'' imposes a ``no adverse effect'' standard on
the NWPs, not a ``minimal adverse effect'' standard. Several commenters
said that the limitations imposed by proposed General Condition 26
offset the utility of regional conditions. A number of commenters
objected to the 1 acre limit imposed by the proposed general condition.
Two commenters said that the 1 acre limit is arbitrary and violates the
Administrative Procedures Act because the Corps provided no
justification that this limit is necessary. One commenter stated that
the acreage limit should be in the text of the NWPs, not the general
condition.
A large number of commenters objected to this proposed general
condition because it is duplicative of existing programs, such as the
Section 401 water quality certification or National Pollutant Discharge
Elimination System programs. Two commenters stated that the issuance of
a water quality certification by the state or Tribe should be adequate
to ensure that the use of the NWP is consistent with water quality
standards. Several commenters asserted that states are best suited to
determine which actions are necessary to address causes of impairment,
allocate pollutant loads, and protect water quality, and that the Corps
should defer these matters to the states. Two commenters said that the
proposed general condition is redundant with General Condition 9.
Several commenters objected to the use of Clean Water Act Section
303(d) lists to identify impaired waters. A commenter objected to the
provisions of proposed General Condition 26 because EPA is currently
proposing to revise its regulations for the Total Maximum Daily Load
(TMDL) program, upon which the limitations of the proposed general
condition are based. This commenter also opposed the proposed general
condition because state Section 303(d) lists are constantly changing
and not all state lists are available at the same time. One commenter
requested clarification whether the TMDL program is the same as the
Section 303(d) program for identifying impaired waters. Another
commenter asked how the Corps will be able to enforce this general
condition when water quality standards may vary from year to year and
the Section 303(d) status of individual stream segments may change. Two
commenters objected to the proposed general condition because of the
subjective criteria used to identified impaired waters on 303(d) lists.
Several commenters objected to making the prospective permittee
responsible for demonstrating that the proposed work will not result in
further impairment of the waterbody. Many commenters opposed this
general condition because it does not explain how the prospective
permittee can rebut the presumption and what information is needed to
make the rebuttal. Several commenters indicated that, in many cases, it
will be impossible to rebut the presumption in General Condition 26 and
in other cases much time and money would be required to rebut the
presumption. One commenter suggested that the prospective permittee
should be required to provide documentation to the district engineer
instead of demonstrating that the activity will not result in further
impairment of the waterbody.
Several commenters asserted that permittees should be allowed to
use compensatory mitigation to ensure that the authorized work will not
result in further impairment of the waterbody. Two commenters said that
the prohibition against using compensatory mitigation to ensure no
further impairment of the waterbody is contrary to General Condition 19
and the last sentence of paragraph (b) of the proposed General
Condition. One commenter requested clarification whether the term
``excluding mitigation'' refers to compensatory mitigation. This
commenter also asked if avoidance and minimization could be used as
documentation that the activity will not cause further impairment of
the waterbody.
Three commenters asked if tributaries of impaired waters are also
considered impaired and subject to proposed General Condition 26.
Several commenters requested clarification whether wetlands adjacent to
an impaired waterbody are considered part of that waterbody and subject
to the 1 acre limit. One commenter questioned whether the proposed
general condition is applied on a watershed or stream reach basis.
Several commenters objected to the inclusion of adjacent wetlands
in proposed General Condition 26 because the definition of adjacency is
too vague and those wetlands may not have direct hydrologic connections
to the waterbody. Three commenters requested
[[Page 12876]]
a definition of the term ``adjacent'' as it applies to this general
condition. Two commenters said that the general condition should be
limited to the impaired waterbody and wetlands with demonstrable
hydrologic connections to the impaired waterbody. One commenter
recommended that the Corps replace the term ``adjacent'' with
``contiguous'' in this general condition. This commenter also said
that, for the purposes of this general condition, adjacent wetlands
should not include wetlands downstream of the impaired waterbody.
Another commenter said that identifying adjacent wetlands is
problematic since impaired waters are identified by segments. This
commenter requested guidance on how to identify wetlands that are
adjacent to impaired stream segments.
Two commenters said that this general condition should be included
in General Condition 25 because impaired waters warrant the same
protection as designated critical resource waters. Another commenter
said that proposed General Condition 26 should not apply to waters
where TMDL water quality management plans have been implemented. Two
commenters said that this general condition should not apply to
activities that do not result in discharges of the listed pollutant.
One commenter requested clarification whether proposed General
Condition 26 applies only to waterbodies that are impaired as a result
of the causes listed in the text of the proposed general condition or
if other sources of impairment are applicable. Two commenters said that
the proposed general condition should apply only to waterbodies that
are impaired as a result of the loss of wetlands. Many commenters
recommended additional criteria to identify waters that should be
subject to this general condition. Suggested criteria include: (1)
watersheds that have lost more than 50% of their original wetlands; (2)
loss of riparian vegetation that results in greater fluctuations in
water temperature; (3) waters identified as impaired through EPA's
Index of Watershed Indicators; (4) all waters identified as impaired
through the Section 303(d) process; (5) pollutants listed in section
502(6) of the Clean Water Act; (6) waters impaired by hydrological and
habitat modification; and (7) waters impaired by pesticides and
pathogens.
A number of commenters suggested specific NWPs that should not be
subject to proposed General Condition 26. Many commenters said that NWP
3 activities should not be subject to the proposed general condition,
because it would result in delays for maintenance activities that have
minimal adverse effects on the aquatic environment and are not likely
to result in further impairment of these waterbodies. One commenter
stated that NWP activities that enhance or restore waters, are
necessary for public health and safety, or authorize maintenance
activities, should not be subject to the proposed general condition.
Various commenters recommended that NWPs 12, 13, 14, 31, and 33 should
not be subject to proposed General Condition 26. One commenter said
that the proposed general condition should not apply to NWPs 3, 13, 27,
41, 42, and 43 because the activities authorized by these NWPs usually
improve water quality. Most NWPs were recommended for exclusion from
the proposed general condition.
After considering the comments received in response to the July 21,
1999, Federal Register notice, we determined that General Condition 26
should be withdrawn. We believe that the 1/2 acre limit and the 1/10
acre PCN limit on the new and modified NWPs will ensure that the
adverse effects are no more than minimal. We also agree with the
commenters who stated that the limitation would yield limited, if any,
value added for the aquatic environment. We agree that in many cases
mitigated NWPs will actually improve the status of the aquatic
environment. Finally, we believe that impacts to impaired waters are
more appropriately addressed through the Section 401 water quality
certification process.
27. Fills Within 100-year Floodplains: We proposed, in the July 21,
1999, Federal Register notice, to add a new general condition to the
NWPs that would limit the use of certain NWPs in waters of the United
States within all 100-year floodplains.
We received many comments supporting or opposing proposed General
Condition 27. A large number of commenters said that this general
condition should include drainage activities in 100-year floodplains.
Several commenters recommended expanding the scope of the proposed
general condition to include excavation activities in 100-year
floodplains. Many commenters stated that the proposed general condition
should be expanded to prohibit all fills in 100-year floodplains. Some
commenters expressed concern that the proposed general condition does
not address increases in flooding caused by stream channelization
activities. One commenter supported proposed General Condition 27
because it will provide protection of essential fish habitat and
anadromous fish species.
Many commenters opposed proposed General Condition 27, stating that
it would provide few benefits and that it will increase delays and
costs for the regulated public. A number of commenters contend that the
requirements of the proposed general condition are outside of the scope
of the Corps regulatory authority. Many commenters stated that the
requirements of proposed General Condition 27 imply that the Corps is
expanding its regulatory authority to the entire 100-year floodplain.
Several commenters objected to the provisions of this general condition
because it duplicates the requirements of other government agencies,
especially state and local flood protection regulations and ordinances,
as well as the National Flood Insurance Program (NFIP) of the Federal
Emergency Management Agency (FEMA). One commenter said that General
Condition 27 is contrary to the Administration's initiatives that
encourage reuse of brownfields, because most brownfields are located
within 100-year floodplains in urban areas.
As a result of our review of the comments received in response to
the July 21, 1999, Federal Register notice, we have modified proposed
General Condition 27 and designated it as General Condition 26, Fills
Within 100-year Floodplains. The revised general condition prohibits
the use of NWPs 29, 39, 40, 42, 43, and 44 to authorize discharges of
dredged or fill material into waters of the United States that result
in permanent, above-grade fills within the FEMA-mapped 100-year
floodplain of streams below the headwaters. NWPs 12 and 14 can be used
to authorize discharges of dredged or fill material resulting in
permanent, above-grade fills within the 100-year floodplain of streams
below headwaters, provided the permittee notifies the district engineer
in accordance with General Condition 13 and the activity complies with
FEMA or FEMA-approved local floodplain construction requirements.
In flood fringes of FEMA-mapped 100-year floodplains located within
headwater streams, NWPs 12, 14, 29, 39, 40, 42, 43, and 44 can be used
to authorize permanent, above grade fills in waters of the United
States, provided the prospective permittee notifies the district
engineer in accordance with General Condition 13 and provides
documentation demonstrating that the proposed work complies with FEMA
or FEMA-approved local floodplain construction requirements. In FEMA-
designated floodways of 100-year
[[Page 12877]]
floodplains located within headwater streams, NWPs 29, 39, 40, 42, 43,
and 44 cannot be used to authorize permanent, above-grade fills in
waters of the United States. However, NWPs 12 and 14 can be used to
authorize permanent, above-grade fills in waters of the United States
within floodways of FEMA-designated 100-year floodplains located within
headwater streams, provided the prospective permittee notifies the
district engineer in accordance with General Condition 13 and provides
documentation demonstrating that the activity complies with FEMA or
FEMA-approved local floodplain construction requirements. We believe
that these changes, combined with the 1/2 acre maximum acreage limit
and 1/10 acre PCN threshold, will ensure protection of the functions
and values of floodplains. Definitions of the terms ``flood fringe''
and ``floodway'' are found at 44 CFR 9.4.
We do not agree that this general condition should be extended to
drainage and excavation activities within 100-year floodplains, since
these activities do not have substantial adverse effects on the flood-
holding capacity of 100-year floodplains. Stream channelization
activities authorized by NWPs are subject to General Condition 21,
which prohibits substantial changes to surface water flow patterns,
including downstream flooding. Stream channelization projects are
constructed to improve conveyance of water, which may decrease local
flooding.
It is important to note that the requirements of this general
condition are not a surrogate for the requisite and separate
determination by the Corps of minimal adverse effects on the aquatic
environment that is required for all NWPs. District engineers will
exercise discretionary authority if proposed discharges of dredged or
fill material into waters of the United States within 100-year
floodplains will result in more than minimal adverse effects (after
consideration of mitigation measures) on the aquatic environment.
We do not believe that the modified version of this general
condition will unreasonably increase costs for the regulated public.
NWP 26 authorized only discharges of dredged or fill material in
headwaters and isolated waters and the modified condition allows the
use of NWPs in the flood fringe of the headwaters. The Corps study of
the economic and workload implications of the proposed NWPs indicates
that the revised approach will cost the regulated public roughly one-
half the amount the proposal in the July 21, 1999, Federal Register
would cost. Moreover, we believe that the modifications we have made
will actually enhance protection of the aquatic environment. To
participate in the NFIP, the permittee must comply with FEMA or FEMA-
approved local floodplain construction requirements, which will not
impose additional costs. The requirements of this general condition are
not an attempt to, and do not, expand the Corps regulatory jurisdiction
to areas outside of waters of the United States.
Two commenters stated that the current NWP program complies with
Executive Order (E.O.) 11988, Floodplain Management. One of these
commenters said that requiring individual permits for the activities
prohibited by the proposed general condition is not considered a
practicable alternative in the context of E.O. 11988, because it is
impractical to require individual permits for all activities in 100-
year floodplains.
We concur that the NWP program fully complies with E.O. 11988,
including the ``Floodplain Management Guidelines for Implementing E.O.
11988'' issued by the U.S. Water Resources Council and ``Further Advice
on Executive Order 11988 Floodplain Management'' issued by the
Interagency Task Force on Floodplain Management. ``Further Advice on
Executive Order 11988 Floodplain Management'' states that class review
of repetitive actions proposed in 100-year floodplains can be conducted
in full compliance with E.O. 11988. The NWPs clearly fall within the
category of class review of repetitive actions.
Several commenters indicated that requiring individual permits for
activities in 100-year floodplains will not provide any benefits
because individual permits will be issued with little or no change from
the proposed work. These commenters said that it is likely that the
Corps will rely on the NFIP standards when assessing impacts on 100-
year floodplains. Two commenters said that the requirements of proposed
General Condition 27 will remove incentives for project proponents to
design their activities to have minimal adverse effects to qualify for
NWP authorization. These commenters believe that project proponents
will design larger activities with greater environmental impacts when
required to request individual permits. One commenter said that the
NWPs should authorize fills that result in the loss of less than 2
acres of waters of the United States in 100-year floodplains.
Several commenters stated that the requirements of proposed General
Condition 27 should not be more restrictive than FEMA regulations.
Numerous commenters indicated that the proposed general condition is
contrary to FEMA regulations, which allow fills in the flood fringe of
100-year floodplains. One commenter said that the proposed general
condition should be modified to allow the NWPs to authorize activities
that comply with NFIP construction standards. One commenter said that
proposed General Condition 27 should not apply in areas with FEMA-
certified floodplain management programs in place, where the activity
has been approved by the local floodplain management agency.
We agree with these comments and have modified this general
condition so that the NWPs can be used to authorize activities within
flood fringes of 100-year floodplains within headwater streams,
provided those activities comply with FEMA or FEMA-approved local
floodplain construction requirements and result in minimal adverse
effects on the aquatic environment. We do not agree that there should
be a 2 acre limit for discharges of dredged or fill material into
waters of the United States within 100-year floodplains. The 1/2 acre
limit for most of the new NWPs will allow the NWP program to continue
to provide a streamlined authorization process for activities with
minimal adverse effects on the aquatic environment.
A large number of commenters stated that proposed General Condition
27 will impose additional requirements on local floodplain authorities
that will increase their workload. For example, the proposed general
condition required local floodplain authorities to determine the extent
of 100-year floodplains, determine whether a proposed activity is
outside of the 100-year floodplain, and provide documentation that the
proposed work will not decrease the flood-holding capacity of the 100-
year floodplain.
We agree with these concerns, but believe that the revised general
condition will not impose such additional workload requirements on
local floodplain authorities.
Many commenters contend that the prohibitions in proposed General
Condition 27 are not necessary because the NWPs authorize only
activities with minimal adverse effects on the aquatic environment,
including floodplains. Several commenters noted that the terms of
proposed General Condition 27 impose a ``no effect'' standard on the
NWPs instead of a ``minimal adverse effect'' standard.
We agree with these comments. The revised general condition does
not
[[Page 12878]]
prohibit the use of NWPs 29, 39, 40, 42, 43, and 44 to authorize
discharges of dredged or fill material into waters of the United States
within flood fringes of 100-year floodplains within headwater streams,
provided the proposed work complies with FEMA or FEMA-approved local
floodplain construction requirements and results in minimal adverse
effects on the aquatic environment. NWPs 12 and 14 can be used to
authorize activities in all non-tidal 100-year floodplains, provided
those activities comply with FEMA or FEMA-approved local floodplain
construction requirements and result in minimal adverse effects on the
aquatic environment.
Numerous commenters objected to this general condition because it
requires PCNs for all activities. Two commenters requested
clarification whether notification to the district engineer is required
if the FEMA map or local floodplain map shows that the project site is
outside of the 100-year floodplain. Three commenters asked if the PCN
requirement in paragraph (a) of the proposed general condition is for
all NWPs or only NWPs 21, 29, 39, 40, 42, 43, and 44.
The revised general condition does not require notification for all
activities authorized by NWPs 12, 14, 29, 39, 40, 42, 43, and 44.
Notification is required only if the proposed activity involves
discharges of dredged or fill material into waters of the United States
within 100-year floodplains that are mapped through Flood Insurance
Rate Maps (FIRMs) published by FEMA or FEMA-approved local floodplain
maps.
Numerous commenters said that compensatory mitigation can be used
to offset losses of floodplain functions and values, including flood
storage, and that the prohibitions in proposed General Condition 27 are
unnecessary. Several commenters remarked that floodplain issues are
more appropriately addressed through regional conditions. Other
commenters suggested that PCNs and discretionary authority should be
used instead of prohibitions. Two commenters recommended that the Corps
include local floodplain agencies in the agency coordination process to
address floodplain concerns.
Compensatory mitigation can be used to ensure that the proposed
work complies with FEMA or FEMA-approved local floodplain construction
requirements. Since flood hazards are a national concern, we do not
agree that this issue should be addressed solely by regional
conditions. Certain NWP activities within 100-year floodplains will be
reviewed through the PCN process to ensure that those activities comply
with FEMA or FEMA-approved local floodplain construction requirements
and result in minimal adverse effects on the aquatic environment. In
addition, we believe that the waters of the United States within the
mapped floodway have inherently higher wetland functions and values,
which should be afforded additional protections.
Several commenters said that proposed General Condition 27 is
unnecessary because the proposed modification of General Condition 21
adequately addresses changes to surface water flows, including
flooding. Three commenters requested clarification whether runoff from
buildings constructed in uplands within 100-year floodplains requires a
Section 404 permit. Three commenters asked whether permanent, above-
grade fills in uplands within 100-year floodplains are subject to
proposed General Condition 27.
We do not agree that General Condition 21 adequately addresses all
potential adverse effects to 100-year floodplains. Stormwater runoff
from buildings constructed in uplands within 100-year floodplains does
not require a Section 404 permit. During reviews of PCNs, district
engineers will consider the adverse effects of the proposed activity on
the ecological as well as flooding functions and values of 100-year
floodplains. Depending on the Corps scope of analysis for the proposed
work, district engineers will generally limit their reviews to
activities in waters of the United States within 100-year floodplains.
Many commenters addressed problems associated with identifying and
mapping 100-year floodplains. One commenter supported the requirement
for using up-to-date FEMA maps. Several commenters advocated expanding
proposed General Condition 27 to 100-year floodplains not mapped by
FEMA on its FIRMs. A large number of commenters indicated that FEMA
maps are not accurate and should not be relied upon to identify the
extent of 100-year floodplains. Two commenters said that the Corps
should map the floodplains. One commenter noted that many FEMA maps do
not reflect changes in land use that have occurred since the last FIRM
was issued, which makes these maps unreliable.
To effectively implement the requirements of this general
condition, and to be consistent with other Federal programs, 100-year
floodplains will be identified through the latest FIRMs published by
FEMA or FEMA-approved local floodplain maps. If there are no FIRMs or
FEMA-approved local floodplain maps available for the area where the
proposed work is located, then the requirements of this general
condition do not apply. In such cases, the Corps will still consider
the impacts of proposed projects through the PCN review process.
Many commenters stated that in areas where there are no FEMA maps
or those maps are out of date, local floodplain authorities may be
unwilling to certify the extent of the 100-year floodplain without
extensive analyses. These commenters said that landowners may have to
go through a lengthy and expensive map revision process before the
local floodplain authority will provide the documentation required by
proposed General Condition 27. Two commenters remarked that the
requirement to have a licensed professional engineer certify whether or
not the activity is in the 100-year floodplain is too restrictive.
These commenters said that this requirement should be modified to allow
qualified hydrologists to identify 100-year floodplains in areas not
mapped by FIRMs. Several commenters suggested that proposed General
Condition 27 should contain a statement requiring the consideration of
man-made flood control structures when mapping 100-year floodplains.
The revised general condition does not require local floodplain
authorities to certify the extent of 100-year floodplains. In addition,
the prospective permittee is not required to have a licensed
professional engineer certify whether or not the proposed work is
within a 100-year floodplain.
One commenter objected to using FEMA maps, stating that the scale
of these maps makes it difficult to determine if a particular parcel is
within a 100-year floodplain. Another commenter objected to using FIRMs
because they may contain large areas that are within the 100-year
floodplain but are not mapped because of inadequate funding. These
unmapped areas would place burdens on local governments or the
landowners, who would be required to survey the property and map the
100-year floodplain. One commenter objected to proposed General
Condition 27, because it would require project proponents to obtain
individual permits if they cannot demonstrate that the proposed work is
located outside of 100-year floodplains because there are no FEMA or
local floodplain maps available for the project sites.
We believe that FIRMs or FEMA-approved local floodplain maps are
adequate for the purposes of this general condition. Utilizing existing
FIRMs and
[[Page 12879]]
FEMA-approved local floodplain maps eliminates the additional burdens
on local governments or landowners that existed in the proposed
condition. If there are no FIRMs or FEMA-approved local floodplain maps
available for the project area, this general condition does not apply.
Several commenters stated that paragraph (b) of proposed General
Condition 27 is an illegal delegation of the Corps regulatory authority
because it allows FEMA or local floodplain authorities to prohibit the
use of NWPs 12 and 14 in 100-year floodplains. Two commenters
disapprove of the requirement for prospective permittees to provide,
with the notification, a statement from FEMA or the local flood control
agency that the proposed work will not increase flooding. One commenter
objected to the provisions of paragraph (b) because FEMA regulations
require engineering analyses only for work in regulatory floodways. Two
commenters recommended modifying paragraph (b) to allow professional
engineers to provide documentation to district engineers without
submitting it to FEMA or local floodplain authorities for approval.
We have revised this general condition to require the permittee to
comply with the appropriate FEMA or FEMA-approved local floodplain
construction requirements. These requirements address impacts to base
flood elevations and 100-year floodplains to minimize flood damages.
The revised general condition does not require engineering analyses on
a case-by-case basis.
Two commenters said that the requirements of the proposed general
condition will require local floodplain authorities to develop new
regulations to address the documentation necessary to comply with
paragraph (b), since these are new requirements that are not currently
used by local floodplain agencies. These commenters indicated that it
would be more appropriate for FEMA to change its regulations to address
these documentation requirements. Many commenters stated that FEMA and
local floodplain authorities are not equipped to handle the reviews
necessary for the rebuttable presumption in paragraph (b) of proposed
General Condition 27 because it contains different standards than they
currently use. Several commenters disapprove of this general condition
because it provides no mechanism to resolve disputes that may occur
between FEMA and local floodplain agencies.
We have revised this general condition to require the permittee to
comply with FEMA or FEMA-approved local floodplain construction
requirements. If those construction requirements change, the permittee
would have to comply with the new construction requirements.
Several commenters indicated that the criteria in paragraph (b) of
proposed General Condition 27 (i.e., no more than minimal alteration of
the hydrology, flow regime, or volume of waters associated with the
floodplain) are not well-defined in current FEMA regulations or the
guidance for implementing local floodplain regulations. These
commenters said that most states do not use these criteria when
assessing impacts to 100-year floodplains. Two commenters suggested
that the Corps consult with state floodplain regulatory agencies and
Federal transportation agencies to develop language that makes this
condition practical to implement. Another commenter recommended that
other factors, such as the width of the drainage course, slope,
roughness coefficients, and location of above-grade fills within the
100-year floodplain should be considered.
We have removed these criteria from this general condition.
Instead, we will rely on FEMA or FEMA-approved local floodplain
construction requirements to ensure that the authorized work does not
result in more than minimal adverse effects to the flood-holding
capacity of 100-year floodplains.
One commenter identified inconsistencies between the second and
fourth sentences of paragraph (b). The second sentence states that the
`` * * * project and associated mitigation, will not decrease flood-
holding capacity and no more than minimally alter the hydrology, flow
regime, or volume of waters associated with the floodplain.'' The
fourth sentence states that the project ``* * * will not result in
increased flooding or more than minimally alter floodplain hydrology or
flow regimes.'' Since the documentation requirements of these sentences
differ, the commenter was unsure as to what constitutes the criteria
that will be used to determine compliance with the proposed general
condition.
The revised general condition does not contain these
inconsistencies.
Two commenters stated that the proposed general condition should
apply to NWP activities in smaller tributaries, in addition to the main
river. One commenter said that tributaries to streams should be
considered as separate watersheds and eligible for the exception in
paragraph (c) of proposed General Condition 27. This commenter
requested criteria that will be used to determine whether a tributary
is separate from the floodplain of the main channel. Another commenter
contends that paragraph (c) of the proposed general condition is too
confusing and requested clarification explaining how district engineers
and prospective permittees would determine if a particular site is
located in the portion of the watershed that drains less than one
square mile.
This general condition applies to activities authorized by NWPs 12,
14, 29, 39, 40, 42, 43, and 44, where 100-year floodplains are
delineated on either FIRMs or FEMA-approved floodplain maps. If no 100-
year floodplain map has been produced for a particular tributary, then
the provisions of this general condition do not apply. The revised
general condition does not contain a provision similar to paragraph (c)
of the proposed General Condition 27.
Several commenters suggested that the rebuttable presumption in
paragraph (b) should be utilized for NWPs 21, 29, 39, 40, 42, 43, and
44, instead of prohibiting these activities in 100-year floodplains.
One commenter recommended expanding proposed General Condition 27 to
NWPs 7, 8, 16, and 17. Several commenters said that proposed General
Condition 27 should not apply to the construction, replacement, and
maintenance of water supply facilities, fish production facilities,
flood control facilities, and hydraulic control and drainage
facilities. Three commenters indicated that the proposed general
condition should not apply to NWP 27 activities.
We have revised the proposed general condition to require, for NWP
29, 39, 40, 42, 43, and 44 activities in flood fringes of the 100-year
floodplains within headwater streams, that the permittee notify the
district engineer in accordance with General Condition 13 and provide
documentation demonstrating that the proposed work complies with FEMA
or FEMA-approved local floodplain construction regulations. We have
withdrawn NWP 21 from the general condition. We do not agree that this
general condition should apply to NWPs 7, 8, and 16 because the
activities authorized by these NWPs have little or no adverse effects
on the flood-holding capacity of 100-year floodplains. Hydropower
projects authorized by NWP 17 would be required to comply with the
appropriate floodplain construction requirements. This general
condition does not apply to water supply facilities, fish production
facilities, flood control facilities, and hydraulic control and
drainage facilities, unless those activities are authorized by the NWPs
listed in the general condition.
[[Page 12880]]
NWP 27 is not subject to this general condition.
Many commenters said that proposed General Condition 27 should not
apply to NWP 12 activities. One commenter suggested a \1/3\ acre limit
for utility line activities in 100-year floodplains. Another commenter
stated that the installation of above-ground utility line valves within
100-year floodplains should not be subject to the hydraulic modeling
requirements of paragraph (b) because these activities have minor
adverse effects on flood-holding capacity. Several commenters said that
the requirements of paragraph (b) should not apply to utility lines
that are installed underground. Three commenters said that permanent
above-grade fills within 100-year floodplains for utility line
activities should not be authorized by NWP 12.
We do not agree that NWP 12 activities should be excluded from this
general condition. Utility line activities can adversely affect the
flood-holding capacity of the 100-year floodplain. NWP 12 activities
are required to comply with the appropriate FEMA or FEMA-approved local
floodplain construction requirements.
Numerous commenters stated that proposed General Condition 27
should not apply to NWP 14 activities. One commenter said that the
proposed general condition should apply only to transportation
crossings that are constructed parallel to streams. A commenter
suggested a \1/3\ acre limit for NWP 14 activities in 100-year
floodplains. One commenter said that restricting NWP 14 activities in
100-year floodplains could adversely affect public safety.
NWP 14 activities can adversely affect the flood-holding capacity
of 100-year floodplains, as well as surface water flow patterns during
flood events. The revised general condition does not prohibit NWP 14
activities in 100-year floodplains. NWP 14 activities must comply with
the appropriate FEMA or FEMA-approved local floodplain construction
requirements.
Many commenters said that proposed General Condition 27 should not
apply to activities authorized by NWP 21 because all coal mining is
regulated by the Office of Surface Mining (OSM) and delegated state
agencies. Some of these commenters indicated that state mining programs
have extensive performance standards for hydrological balance, which
address similar issues as proposed General Condition 27. Numerous
commenters stated that OSM-approved state programs have requirements to
restore mined areas to approximately the original contours and that
prohibiting the use of NWP 21 in 100-year floodplains will place
burdens on the mining industry without providing any additional
benefits.
We concur with these commenters and have removed NWP 21 from the
revised general condition.
One commenter stated that, for activities authorized by paragraph
(a) of NWP 40, NRCS would have to determine if the proposed work will
result in unacceptable impacts on FEMA-mapped 100-year floodplains.
This commenter said that NRCS, as part of its review, addresses impacts
on flood storage and flood flows and that prospective permittees should
be allowed to use NWP 40 if the work will not result in impacts to 100-
year flood events. This commenter also recommended incorporating the
requirements of proposed General Condition 27 into the text of NWP 40
so that the regulated public will be aware of these requirements.
For activities authorized by paragraph (a) of NWP 40, NRCS will
determine if the proposed work complies with this general condition. We
have added paragraph (e) to NWP 40, which refers permittees to General
Condition 26.
Many commenters objected to applying the prohibition in paragraph
(a) of proposed General Condition 27 to NWP 43 activities. A number of
these commenters said that this prohibition is inappropriate since
stormwater management facilities must be located in or near 100-year
floodplains and their purpose is floodplain management and flood
control. Several commenters said that prohibiting NWP 43 activities in
100-year floodplains will put citizens at greater risks and make their
property more susceptible to flood damage. One commenter stated that
proposed General Condition 27 should not apply to the maintenance of
existing flood control projects.
We do not agree that NWP 43 should be excluded from this general
condition. NWP 43 activities must comply with FEMA or FEMA-approved
local floodplain construction requirements, if the activity is located
in flood fringes of 100-year floodplains of headwater streams.
Furthermore, many in-stream stormwater management facilities are
located above the 1 cfs point on streams. General Condition 26 does not
apply above the 1 cfs point, thus these projects will not be affected.
The revised general condition does not apply to NWP 31 activities.
Many commenters stated that proposed General Condition 27 should
not apply to NWP 44 activities because it would not provide any added
benefits. Some of these commenters said that aggregate mining
activities often increase flood storage capacity and therefore should
not be prohibited by this general condition. Several commenters
suggested that NWP 44 activities should be subject to the rebuttable
presumption in paragraph (b) of the proposed general condition. One
commenter said that the proposed general condition should not apply to
aggregate mining activities because sand and gravel deposits are
typically located within floodplains and off-site alternatives are
usually impractical. This commenter also stated that mined land
reclamation will restore surface water flow patterns. A commenter noted
that dikes, berms, foundations, and impoundments associated with mining
activities can be located so that they will not restrict the flow of
floodwaters.
We do not agree that NWP 44 should be excluded from this general
condition, because permanent, above-grade fills associated with mining
activities can adversely affect the flood-holding capacity of 100-year
floodplains. Mining activities that do not result in permanent above-
grade fills are not subject to the requirements of this general
condition.
The Corps of Engineers is very concerned with the loss of life and
property resulting from unwise development in the floodplain. The Corps
has recently advocated the strengthening of floodplain policy and the
use of non-structural measures to reduce flood damages. We believe that
the changes to the NWP program published today will play an important
role in reducing damages associated with development in the floodplain.
We will monitor carefully the effectiveness of the new floodplain
condition to ensure that it has the intended impact on reducing
floodplain development. Specifically, three years from the effective
date of the new NWPs, we will prepare a report on the use of NWPs in
the flood fringe area in the headwaters. This report will include an
analysis of the extent, if any, to which NWPs are being used in the
floodplain of areas with repeated flood damages.
Proposed General Condition 27 is adopted as General Condition 26,
with the modifications discussed above.
V. Comments and Responses on Nationwide Permit Definitions
We received many comments concerning the proposed definitions for
the NWPs. Comments regarding specific definitions are discussed below.
In this section, we also address requests for definitions of additional
terms used in the NWP program. One commenter said that certain terms
defined in the
[[Page 12881]]
``Definitions'' section do not appear in the text of NWPs and that they
should be removed. This commenter cited the definitions of ``aquatic
bench'' and ``ephemeral streams.'' Another commenter objected to the
differential treatment of perennial, intermittent, and ephemeral
streams, stating that each stream type has important functions and
values and that the proposed NWPs imply that ephemeral streams are less
valuable.
We have deleted the definition of the term ``aquatic bench,'' since
it is not used in the new NWPs. We believe that it is necessary to
retain the definition of the term ``ephemeral stream'' because it is
important to recognize the differences between perennial, intermittent,
and ephemeral streams when determining whether a particular project
will have more than minimal adverse effects on the aquatic environment.
For example, NWP 43 does not authorize the construction of new
stormwater management facilities in perennial streams. Division
engineers can also regionally condition these NWPs to address regional
concerns for different stream types.
Best Management Practices. One commenter recommended adding ``and
wetlands'' after the phrase ``surface water quality.''
We do not agree that this change is necessary, because wetlands are
surface waters. This definition is adopted as proposed.
Compensatory Mitigation. One commenter stated that the requirement
in the new NWPs for vegetated buffers adjacent to open waters is
inconsistent with the proposed definition of compensatory mitigation,
because that definition does not recognize vegetated buffers as a form
of compensatory mitigation. Another commenter recommended revising the
definition to recognize the use of upland areas to provide out-of-kind
compensatory mitigation. One commenter said that the definition of this
term should include references to mitigation banks and in lieu fee
programs. One commenter said that the word ``unavoidable'' in the
definition is confusing and should be removed.
The establishment and maintenance of vegetated buffers next to open
waters, including streams, is not inconsistent with the proposed
definition of this term. An integral component of stream restoration
projects is the reestablishment of the riparian zone, which may involve
planting trees and shrubs next to the stream to restore aquatic
habitat. It is not necessary to include mitigation banks and in lieu
fee programs in the definition of this term because these are specific
forms of compensatory mitigation. The word ``unavoidable'' is an
integral part of this definition because the NWPs require on-site
avoidance and minimization of losses of waters of the United States, to
the maximum extent practicable (see General Condition 19). This
definition is adopted as proposed.
Creation: We did not receive any comments concerning the proposed
definition. This definition is adopted as proposed.
Drainage Ditch. Several commenters noted that the term ``ordinary
high water line,'' which is used in the proposed definition of this
term, is not defined in Corps regulations. These commenters asked if we
intended to refer to the ``ordinary high water mark.'' Several
commenters stated that channelized streams should not be included in
this definition. One commenter recommended that this definition
differentiate between channelized streams and drainage ditches by
stating that channelized streams convey water from high water tables.
Another commenter objected to a statement in the preamble discussion
related to this definition (64 FR 39351) that the maintenance of
drainage ditches which are constructed by channelizing streams is
exempt from Section 404 permit requirements as long as the maintenance
activity does not exceed the original ditch design and configuration.
Two commenters requested that the Corps add structural drainage ditches
and channels to the definition of this term.
One commenter said that a clear definition of the term ``upland
drainage ditch'' is needed. Another commenter objected to the second
sentence of the proposed definition, stating that drainage ditches are
jurisdictional only when they are constructed in waters of the United
States. This commenter indicated that the entire drainage ditch should
become jurisdictional if any part of that drainage ditch is constructed
in waters of the United States.
We have withdrawn the proposed definition of this term from the
``Definitions'' section of the NWPs, because of the complexity of the
jurisdictional issues related to drainage ditches.
Enhancement: We did not receive any comments concerning the
proposed definition. This definition is adopted as proposed.
Ephemeral Stream. Several commenters recommended modifying the
proposed definition of this term to state that ephemeral streams are
not waters of the United States as defined at 33 CFR 328.3(a)(3). These
commenters also noted that in the July 1, 1998, Federal Register notice
(63 FR 36042), the Corps defined the term stream bed as including only
perennial and intermittent streams.
We do not agree that it is necessary to explicitly state in the
definition of this term that ephemeral streams are not waters of the
United States because such a statement would be inaccurate. An
ephemeral stream that meets the criteria at 33 CFR part 328 is a water
of the United States. We acknowledge that we made an error on page
36042 of the July 1, 1998, Federal Register notice. Our intent was to
clarify that the PCN thresholds for stream bed impacts for the proposed
NWPs apply only to perennial and intermittent stream beds, not
ephemeral stream beds. The term ``stream bed,'' as used for the NWPs,
applies to perennial, intermittent, and ephemeral stream beds. This
definition is adopted as proposed.
Farm tract: We did not receive any comments concerning the proposed
definition. This definition is adopted as proposed.
Independent utility: We did not receive any comments concerning the
proposed definition. This definition is adopted as proposed.
Intermittent stream: We did not receive any comments concerning the
proposed definition. This definition is adopted as proposed.
Loss of Waters of the United States. During our review of the
comments received in response to the July 21, 1999, Federal Register
notice, we found an error in the proposed definition of the term ``loss
of waters of the United States.'' In the fourth sentence of the draft
definition, we stated that the loss of stream bed includes the linear
feet of perennial or intermittent stream bed that is filled or
excavated. This statement is inaccurate because ephemeral stream bed
that is filled or excavated can also be considered a loss of waters of
the United States. However, the 300 linear foot limit for stream beds
filled or excavated does not apply to ephemeral streams. We have
modified this sentence to define the loss of stream bed as the linear
feet of stream bed that is filled or excavated.
One commenter requested clarification whether the definition of
this term refers only to permanent losses. This commenter also said
that the proposed definition implies that all permanent losses of
waters of the United States, no matter how small, are considered.
Several commenters stated that only permanent losses of waters of the
United States should be regulated by the Corps. Another commenter
suggested that temporary losses should
[[Page 12882]]
be included in the measurement of loss of waters of the United States.
All permanent losses of waters of the United States are considered
when calculating the amount of loss of waters of the United States to
determine whether a particular activity complies with the acreage or
linear limits of an NWP. All discharges of dredged or fill material
into waters of the United States resulting in permanent or temporary
losses of waters of the United States are regulated by the Corps,
unless they are specifically exempt under Section 404(f) of the Clean
Water Act. We do not agree that temporary losses of waters of the
United States should be included in the threshold measurement to
determine whether a activity may qualify for an NWP, since these areas
revert back to waters of the United States once they are restored.
One commenter asked if the term ``loss of waters of the United
States'' includes the removal of silt that has accumulated in a
channel. Another commenter said that the proposed definition is so
broad that it would include any effect, not just losses. This commenter
said that it is not clear whether maintenance dredging of flood control
channels to restore design grades is considered a loss of waters of the
United States. One commenter objected to the third sentence of the
proposed definition, stating that this sentence is inconsistent with
Corps practice of considering compensatory mitigation when determining
whether the adverse effects on the aquatic environment are minimal. A
commenter suggested that the Corps consider the entire single and
complete project to determine the amount of loss of waters of the
United States and whether the adverse effects are minimal.
The term ``loss of waters of the United States'' does not include
maintenance dredging activities that remove accumulated sediments,
provided the dredged material is deposited in upland disposal sites. An
exception occurs where the channel has accumulated so much sediment
that wetlands have developed in the channel and the removal of those
wetlands are necessary to reconstruct the channel. In that situation,
we would consider the activity to result in a loss of waters of the
United States. However, in most situations mitigation is not required
for the cyclical removal of vegetation during maintenance activities.
The third sentence of this definition is not inconsistent with our
policy of using compensatory mitigation to determine whether the net
adverse effects of a particular activity on the aquatic environment are
minimal. This part of the definition merely states that compensatory
mitigation cannot be used to offset a loss of waters of the United
States to meet the acreage limit of an NWP. For example, a project
proponent cannot create \1/2\ acre of wetlands to change a \3/4\ acre
loss of wetlands to a \1/4\ acre loss of wetlands (see paragraph (b) of
General Condition 19). However, the district engineer will consider
compensatory mitigation when determining whether the net adverse
effects on the aquatic environment are minimal.
One commenter said that this definition should also include long-
term, but temporary, impacts to aquatic resource functions and values.
Another commenter stated that discharges of dredged or fill material
into waters of the United States to construct compensatory mitigation
projects should be included in the measurement of loss of waters of the
United States because these projects do not always succeed.
District engineers will determine, on a case-by-case basis whether
an activity results in permanent or temporary losses of waters of the
United States. We do not agree that impacts due to the construction of
compensatory mitigation projects should be included in the measurement
of loss of waters of the United States because these activities offset
losses of waters of the United States. This definition is adopted with
the modification discussed above.
Non-tidal wetland. One commenter said that the third sentence of
the proposed definition is not accurate because it changes the
definition of high tide line. This commenter believes that the maximum
height of the tide is not the spring high tide.
The spring high tide line is the normal high tide line that occurs
during the tidal cycle. Water levels higher than spring high tides
result from storm surges, which are not part of the normal tidal cycle.
This definition is retained as proposed.
Open Water. Two commenters stated that the proposed definition of
this term is confusing and asked whether all waters of the United
States that have ordinary high water marks are open waters. These
commenters also inquired whether this term applies to other areas, such
as ephemeral washes, arroyos, and vernal pools, that are not inundated
for sufficient amounts of time to develop OHWMs and may not be waters
of the United States. Two commenters said that the definition of this
term should specifically exclude ephemeral washes. One commenter
requested that the Corps clarify whether or not all waters of the
United States have an OHWM.
To clarify this definition, we have modified the second sentence to
state that open waters either have little or no emergent aquatic
vegetation. Vegetated shallows are considered to be open waters. Waters
of the United States with substantial amounts of emergent aquatic
vegetation are wetlands, which may or may not have an OHWM. An
ephemeral wash, arroyo, or vernal pool that does not have an OHWM is
not a water of the United States, unless that area has wetlands that
meet the criteria in 33 CFR part 328. We have added a sentence to the
definition which states that ephemeral waters are not considered open
waters, for the purposes of the NWPs. The definition of this term is
adopted with the modifications discussed above.
Perennial stream. One commenter recommended that the Corps modify
the proposed definition to state that the water table ``discharges''
into the stream for most of the year.
We do not agree with this comment, because using the word
``discharge'' in this definition is likely to create confusion since
certain NWPs authorize discharges of dredged or fill material into
waters of the United States for specific activities. The definition is
adopted as proposed.
Permanent above-grade fill. Several commenters requested a more
explicit definition of the word ``permanent'' as used in the context of
this term. One commenter asked for clarification of what is considered
``above-grade'' for the purposes of this definition. One commenter said
that any discharge of dredged or fill material into waters of the
United States should be considered an above-grade fill.
District engineers will determine, on a case-by-case basis, what
constitutes a permanent, above-grade fill for the purposes of this
definition and General Condition 26. Not all discharges of dredged or
fill material into waters of the United States result in permanent,
above-grade fills. For example, during the installation of an
underground utility line, a wetland could be excavated and backfilled
with no permanent change in grade. We believe the definition is
adequately clear.
One commenter expressed concern that the use of the word
``substantial'' in the definition of this term would prohibit
stockpiling in 100-year floodplains during sand and gravel mining
operations. Another commenter requested that the last sentence of this
definition specifically state which NWPs are excluded from this
definition, and whether NWP 12 is one of the excluded NWPs.
[[Page 12883]]
Temporary stockpiles of materials during mining operations would
not be considered permanent above-grade fills for the purposes of this
definition and General Condition 26. The exclusion in the last sentence
of this definition applies to all structural discharges authorized by
NWPs, except for structural discharges that are authorized by the NWPs
listed in General Condition 26 (i.e., NWPs 12, 14, 29, 39, 40, 42, 43,
and 44). This definition is adopted as proposed.
Playa. Many commenters objected to the proposed definition of this
term, stating that this type of aquatic habitat is found throughout the
country. Various commenters suggested additional geographic areas that
should be included, such as Oklahoma, Colorado, Kansas, Oregon,
Washington, and Idaho. Another commenter objected to the inclusion of
the word ``small'' in the proposed definition because some playas can
be large in size. This commenter also objected to including the phrase
``emergent hydrophytic vegetation'' in the definition because many
playas do not support vegetation.
Since we have removed the indexed acreage limit for discharges of
dredged or fill material into playas, prairie potholes, and vernal
pools from NWP 40, therefore we have removed the proposed definition of
a playa.
Prairie pothole. Many commenters objected to the proposed
definition of this term, stating that this type of aquatic habitat is
found throughout the country.
Since we have removed the indexed acreage limit for discharges of
dredged or fill material into playas, prairie potholes, and vernal
pools from NWP 40, we have removed the proposed definition of prairie
pothole.
Preservation: We did not receive any comments concerning the
proposed definition. This definition is adopted as proposed.
Project Area. One commenter objected to the inclusion of open space
in the definition of this term, because the commenter believes that it
penalizes the permittee for avoiding impacts to waters of the United
States. Another commenter said that the exclusion of public roads from
the definition of ``project area'' is unnecessary because the public
roads would not have been built unless the subdivision was constructed.
Since we have replaced the indexed acreage limit of NWP 39 with a
simple \1/2\ acre limit, we have deleted the proposed definition of
project area from this section.
Restoration. One commenter recommended deleting the phrase ``or
exist in a substantially degraded state'' from the definition of this
term, because it overlaps with the definition of the term
``enhancement.''
The definition of this term was taken from the ``Federal Guidance
for the Establishment, Use and Operation of Mitigation Banks'' that was
published in the November 28, 1995, Federal Register (60 FR 58605).
Therefore, we cannot make the recommended change because this guidance
is still in effect. The definition is adopted as proposed.
Riffle and Pool Complex. One commenter suggested that this term
apply only to perennial streams and not to intermittent or ephemeral
streams. This commenter also recommended inserting the word
``moderately'' before the word ``steep'' in the second sentence of this
definition because stream beds with steep gradients seldom have riffle
and pool complexes.
The definition of this term was taken from 40 CFR 230.45.
Therefore, we will not modify the definition of this term for the
purposes of the NWPs. District engineers will use their judgement to
identify riffle and pool complexes at project sites and to distinguish
between riffle and pool complexes (which are found in areas with
moderate grades) and step-pool complexes (which are found in areas with
steep grades, where the stream bed material consists mostly of boulders
and large rocks). The definition is adopted as proposed.
Single and Complete Project. One commenter said that the criteria
for linear single and complete projects should be the same as for other
activities.
We do not agree with this comment. The definition of single and
complete linear projects is consistent with the current NWP regulations
at 33 CFR 330.2(i). This definition is adopted as proposed.
Stormwater management. Several commenters objected to the proposed
definition, stating that it does not specifically include facilities
that reduce downstream flooding. These commenters said that the
definition should include flood control facilities so that they can be
authorized by NWP 43.
The proposed definition does consider flooding and the definition
of its related term, ``stormwater management facilities,'' addresses
flooding issues by discussing runoff in the definition. NWP 43 can be
used to authorize certain types of flood control facilities, if they
are constructed to control runoff and reduce flooding impacts. This
definition is adopted as proposed.
Stormwater management facilities. Two commenters said that this
definition should distinguish between facilities that are designed to
protect water quality and facilities that are designed for flood
control purposes.
We disagree with these commenters because stormwater management
facilities usually perform both functions by slowing runoff during
storms and trapping sediments and chemical compounds. This definition
is adopted as proposed.
Stream bed: We did not receive any comments concerning the proposed
definition. This definition is adopted as proposed.
Stream channelization. One commenter requested that the Corps
modify the definition of this term to more specifically identify what
constitutes stream channelization. Another commenter said that the
definition should contain a statement that excavation activities are
not regulated by the Corps. Two commenters stated that this definition
should include definitions for the terms ``structures'' and ``fills''
so that the regulated public will know when the maintenance of these
structures and fills is eligible for NWP 3 or the maintenance exemption
in section 404(f) of the Clean Water Act.
The proposed definition already provides sufficient examples of
activities that may result in stream channelization. District engineers
will determine on a case-by-case basis whether a particular activity
involves stream channelization. We discuss the regulation of excavation
activities in waters of the United States in a previous section of this
Federal Register notice and do not believe it is necessary to address
that issue in this definition. We do not agree that it is necessary to
provide definitions of the terms ``structure'' and ``fill'' in the
definition of this term. This definition is adopted as proposed.
Tidal Wetland. One commenter stated that the term ``spring high
tide'' should be replaced with the phrase ``mean high tide'' to make
the definition consistent with the provisions of section 10 of the
Rivers and Harbors Act.
Although the shoreward limit of jurisdiction for section 10 of the
Rivers and Harbors Act is mean (average) high water (see 33 CFR
329.12(a)(2)), spring high tides are waters of the United States under
Section 404 of the Clean Water Act (see 33 CFR 328.3(d) and (f)). Tidal
wetlands are wetlands that are inundated with tidal waters, including
spring high tides. Therefore, this definition is adopted as proposed.
Vegetated Shallows. One commenter suggested inserting the phrase
[[Page 12884]]
``submerged or floating'' before the word ``vegetation'' in the
proposed definition.
The proposed definition was taken from the definition of vegetated
shallows published at 40 CFR 230.43 and we do not agree that the
recommended change is necessary. This definition is adopted as
proposed.
Vernal pool. Many commenters objected to the proposed definition of
this term, stating that this type of aquatic habitat is found
throughout the country. One commenter stated that not all regions with
vernal pools exhibit the ``Mediterranean'' climates cited in the
proposed definition.
Since we have removed the indexed acreage limit for discharges of
dredged or fill material into playas, prairie potholes, and vernal
pools from NWP 40, we have removed the proposed definition of vernal
pools from this section.
Waterbody. One commenter suggested that the word ``contiguous'' in
the second sentence of the proposed definition should be replaced with
the word ``adjacent.''
We disagree with this recommendation, because wetlands that are
adjacent to a waterbody are not necessarily part of the waterbody,
unless there is a direct, surface water connection (i.e., contiguous)
between the wetland and the waterbody. This definition is adopted as
proposed.
Additional Definitions. Several commenters recommended that the
Corps include definitions of other terms in this section of the NWPs.
These comments are addressed below.
One commenter said that the phrase ``minimal effects on the aquatic
environment'' needs to be precisely defined so that users of NWPs will
know the extent of adverse effects authorized by the NWPs. Two
commenters suggested adding definitions of the terms ``isolated
waters'' and ``headwaters.'' One of these commenters requested a
definition of the term ``excavation.'' One commenter said that a
definition of the term ``upland'' as it is used in the context of NWPs
39, 43, and 44 is needed. Two commenters asked for a definition of the
phrase ``utility line substations'' as used in NWP 12. Another
commenter requested a definition of the term ``practicable'' as it is
used in General Condition 21. This commenter recommended adopting the
definition in the Section 404(b)(1) guidelines.
We cannot provide a national definition of the term ``minimal
effects on the aquatic environment'' because the determination of
minimal adverse effects for the NWPs and other general permits must be
made on a case-by-case basis, by considering site characteristics, the
functions and values of waters of the United States, the quality of
those waters, regional differences in aquatic resource functions and
values, and other factors. Definitions of the terms ``isolated waters''
and ``headwaters'' are found at 33 CFR 330.2(e) and 33 CFR 330.2(d),
respectively. We do not agree that it is necessary to provide a
definition of the terms ``excavation,'' ``uplands,'' or ``utility line
substations.'' The Corps regulatory program uses the definition of the
term ``practicable'' found at 40 CFR 230.3(q).
One commenter requested a definition of the term ``non-tidal
wetlands adjacent to tidal waters'' because the word ``adjacent'' can
be broadly defined. This commenter recommended limiting the phrase
``non-tidal wetlands adjacent to tidal water'' to wetlands that are
found between the mean tide line and the spring high tide line;
wetlands landward of the spring high tide line would not be considered
adjacent to tidal waters.
As discussed in a previous paragraph in this section, wetlands
located between the mean high tide line and the spring high tide line
are tidal wetlands, because they are inundated with tidal waters. Non-
tidal wetlands that are landward of the spring high tide line and
bordering, contiguous, or neighboring to tidal waters are adjacent to
tidal waters. District engineers will determine, on a case-by-case
basis, whether a particular non-tidal wetland is adjacent to tidal
waters.
One commenter recommended including a more detailed definition of
the term ``lower perennial stream'' that is developed from the Cowardin
definition and discusses the stream gradient, water velocity, stream
substrate, faunal composition, and floodplain development of the lower
perennial stream.
Since the term ``lower perennial stream'' is used only in the
context of NWP 44, we have provided a modified version of the Cowardin
definition in the text of this NWP. This modified definition describes
the stream gradient, stream flow, water velocity, and the stream
substrate. We do not agree that it is necessary to address the type of
organisms that inhabit lower perennial streams, since the physical
description of these stream segments is adequate for the purposes of
NWP 44.
One commenter suggested that the Corps include a definition of the
term ``vegetated buffer'' in this section. We concur with this comment
and have added a definition of this term to the ``Definitions'' section
of the NWPs.
For the implementation of General Condition 26, we have also added
definitions of the terms ``flood fringe'' and ``floodway'' to this
section. These definitions were taken from 44 CFR 9.4, FEMA's
regulations for floodplain management and protection of wetlands.
Alabama
Mobile District Engineer, ATTN: CESAM-OP-S, 109 St. Joseph Street,
Mobile, AL 36602-3630
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-ET-WR, P.O. Box 867,
Little Rock, AR 72203-0867
California
Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street,
Sacramento, CA 95814-4794
Colorado
Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson
Plaza NE, Room 302, Albuquerque, NM 87109-3435
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-RD, 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-CO-O, Building 230, Fort
Shafter, Honolulu, HI 96858-5440
Idaho
Walla Walla District Engineer, ATTN: CENWW-OD-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
[[Page 12885]]
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-R, 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-R, 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-R, 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: CESPA-OD-R, 4101 Jefferson
Plaza NE, Room 302, Albuquerque, NM 87109-3435
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-RG, 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-PE-R, 1645 South 101st East
Avenue, Tulsa, OK 74128-4609
Oregon
Portland District Engineer, ATTN: CENWP-OP-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-CO-F, P.O. Box 1070,
Nashville, TN 37202-1070
Texas
Ft. Worth District Engineer, ATTN: CESWF-EV-R, P.O. Box 17300, Ft.
Worth, TX 76102-0300
Utah
Sacramento District Engineer, ATTN: CESPK-CO-R, 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-CO-R, 803 Front Street,
Norfolk, VA 23510-1096
Washington
Seattle District Engineer, ATTN: CENWS-OD-RD, P.O. Box 3755,
Seattle, WA 98124-2255
West Virginia
Huntington District Engineer, ATTN: CELRH-OR-F, 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-CO-O, Building 230, Fort
Shafter, Honolulu, HI 96858-5440
Puerto Rico and Virgin Islands
Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970,
Jacksonville, FL 32202-4412
Date: February 28, 2000.
Hans A. Van Winkle,
Deputy Commander for Civil Works.
Accordingly, these Nationwide Permits are issued as follows:
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
[[Page 12886]]
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. Fills Within 100-year Floodplains
Further Information
Definitions
Best Management Practices
Compensatory mitigation
Creation
Enhancement
Ephemeral stream
Farm tract
Flood Fringe
Floodway
Independent utility
Intermittent stream
Loss of waters of the United States
Non-tidal wetland
Open water
Perennial stream
Permanent above-grade fill
Preservation
Restoration
Riffle and pool complex
Single and complete project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Tidal wetland
Vegetated buffer
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 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 waters 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 restore damaged upland areas. This permit does not
authorize the replacement of lands lost through gradual 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). (Sections 10 and 404)
Note: This NWP authorizes the minimal impact repair,
rehabilitation, or replacement of any previously authorized
structure or fill that does not qualify for the Section 404(f)
exemption for maintenance.
[[Page 12887]]
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 is 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 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 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 \1/2\ 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 \1/2\ 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.
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. Activities authorized by paragraphs (i) through (iv) may
not exceed a total of \1/2\ acre loss of waters of the United States.
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, 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;
[[Page 12888]]
(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 \1/10\ acre of
waters of the United States;
(f) Permanent access roads constructed above grade in waters of the
United States for a distance of more than 500 feet; or
(g) Permanent access roads constructed in waters of the United
States with impervious materials. (Sections 10 and 404)
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.
14. Linear Transportation Crossings. Activities required for the
construction, expansion, modification, or improvement of linear
transportation crossings (e.g., highways, railways, trails, and airport
runways and taxiways) in waters of the United States, including
wetlands, provided 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 \1/2\ 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 \1/10\ 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 compensatory 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 of waters
of the United States 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. (Sections 10
and 404)
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).
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
(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
[[Page 12889]]
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. NWP 27 can
be used to authorize impacts at a mitigation bank, but only in
circumstances where it has been approved under the Interagency
Federal Mitigation Banks Guidelines.
39. Residential, Commercial, and Institutional Developments.
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 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 the activities meet all of the
following criteria:
a. The discharge does not cause the loss of greater than \1/2\ acre
of non-tidal waters of the United States, excluding non-tidal wetlands
adjacent to tidal waters;
b. The discharge does not cause the loss of greater than 300 linear
feet of stream bed;
c. 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 \1/10\ 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, below).
d. For discharges in special aquatic sites, including wetlands, the
notification must include a delineation of affected special aquatic
sites;
e. The discharge is part of a single and complete project;
f. 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. (See General Condition 19.) The
notification must also include a compensatory mitigation proposal for
offsetting unavoidable losses of waters of the United States. If an
applicant asserts that the adverse effects of the project are minimal
without mitigation, then the applicant may submit justification
explaining why compensatory mitigation should not be required for the
District Engineer's consideration;
g. When this NWP is used in conjunction with any other NWP, any
combined total permanent loss of waters of the United States exceeding
\1/10\ acre requires that the permittee notify the District Engineer in
accordance with General Condition 13;
h. 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);
i. For discharges causing the loss of \1/10\ 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 of
[[Page 12890]]
the loss of waters of the United States (e.g., \1/12\ acre of emergent
wetlands); and (5) The type and acreage of any compensatory mitigation
used to offset the loss of waters of the United States (e.g., \1/12\
acre of emergent wetlands created on-site);
j. 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 next 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
k. 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. The compensatory
mitigation proposal required in paragraph (f) of this NWP may be either
conceptual or detailed. The wetland or upland vegetated buffer required
in paragraph (j) of this NWP will normally be 25 to 50 feet wide on
each side of the stream, but the District Engineer may require wider
vegetated buffers to address documented water quality concerns. 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
acreage limit for NWP 39 (i.e., the combined acreage loss authorized
under NWPs 39 and 40 cannot exceed \1/2\ acre).
Subdivisions: For any real estate subdivision created or subdivided
after October 5, 1984, a notification pursuant to paragraph (c) 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 \1/10\ 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 \1/2\ acre is not authorized by this NWP,
unless the District Engineer exempts a particular subdivision or parcel
by making a written determination that 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. 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: 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 (except for ephemeral waters).
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 a categorical minimal effects
exemption, minimal effect exemption, or mitigation exemption from NRCS
in accordance with the provisions of the Food Security Act of 1985, as
amended (16 U.S.C. 3801 et seq.);
(2) The discharge into non-tidal wetlands does not result in the
loss of greater than \1/2\ acre of non-tidal wetlands on a farm tract;
(3) The permittee must have an NRCS-certified wetland delineation;
(4) The permittee must implement an NRCS-approved compensatory
mitigation plan that fully offsets wetland losses, if required; and
(5) 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., \1/3\ acre of emergent wetlands); and (e)
The type, acreage (or square feet), and location of compensatory
mitigation (e.g., \1/3\ 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 (or a USDA program participant for which the
proposed work does not qualify for authorization under paragraph (a) of
this NWP):
(1) The discharge into non-tidal wetlands does not result in the
loss of greater than \1/2\ acre of non-tidal wetlands on a farm tract;
(2) The permittee must notify the District Engineer in accordance
with General Condition 13, if the discharge results in the loss of
greater than \1/10\ acre of non-tidal wetlands;
(3) The notification must include a delineation of affected
wetlands; and
(4) 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 \1/2\ 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. This NWP does not authorize the relocation of
greater than 300 linear feet of existing serviceable drainage ditches
constructed in non-tidal streams; and
e. Activities located in 100-year floodplains identified by FEMA's
Flood Insurance Rate Maps or FEMA-approved local floodplain maps must
comply with General Condition 26.
The term ``farm tract'' refers to a parcel of land identified by
the Farm Service Agency. The Corps will identify
[[Page 12891]]
other waters of the United States on the farm tract. 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 completing required
compensatory mitigation are authorized by this NWP. However, total
impacts, including other authorized impacts under this NWP, may not
exceed the \1/2\ acre limit of this NWP. 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 categorical minimal effects
exemption, minimal effect exemption, or mitigation exemption from NRCS
pursuant to the Food Security Act of 1985, as amended, may be required.
Activities authorized by paragraphs (a) through (d) may not exceed a
total of \1/2\ acre on a single farm tract. Activities authorized by
paragraphs (c) and (d) are not included in the \1/2\ acre 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 \1/2\ acre. (Section 404)
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 currently serviceable drainage ditches
constructed in these 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 greater than 500 linear feet of drainage ditch
will be reshaped. Material resulting from excavation may not be
permanently sidecast into waters but may be temporarily sidecast (up to
three months) into waters of the United States, provided 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
sidecasting not to exceed a total of 180 days, where appropriate. 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 or expansion of
recreational facilities, provided the activity meets all of the
following criteria:
a. The discharge does not cause the loss of greater than \1/2\ acre
of non-tidal waters of the United States, excluding non-tidal wetlands
adjacent to tidal waters;
b. The discharge does not cause the loss of greater than 300 linear
feet of stream bed;
c. For discharges causing the loss of greater than \1/10\ acre of
non-tidal waters of the United States, the permittee notifies the
District Engineer in accordance with General Condition 13;
d. For discharges in special aquatic sites, including wetlands, the
notification must include a delineation of affected special aquatic
sites;
e. The discharge is part of a single and complete project; and
f. Compensatory mitigation will normally be required to offset the
losses of waters of the United States. The notification must also
include a compensatory mitigation proposal which provides for 1:1
replacement to offset authorized losses of waters of the United States.
For the purposes of this NWP, the term ``recreational facility'' is
defined as a recreational activity that is integrated into the natural
landscape and does not substantially change 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
[[Page 12892]]
stormwater ponds/facilities, detention basins, and retention basins;
the 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 the activity meets all of the following
criteria:
a. The discharge for the construction of new stormwater management
facilities does not cause the loss of greater than \1/2\ acre of non-
tidal waters of the United States, excluding non-tidal wetlands
adjacent to tidal waters;
b. The discharge does not cause the loss of greater than 300 linear
feet of stream bed;
c. The discharge of dredged or fill material for the construction
of new stormwater management facilities in perennial streams is not
authorized;
d. 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/
10\ acre of non-tidal waters, excluding non-tidal wetlands adjacent to
tidal waters, 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);
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 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);
f. 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 forebays (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;
g. 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
h. 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 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/or
(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 \1/2\ acre;
b. 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
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);
c. 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;
d. The permittee must implement necessary measures to prevent
increases in stream gradient and water velocities and to prevent
adverse effects (e.g., head cutting, bank erosion) to upstream and
downstream channel conditions;
e. Activities authorized by this permit must not result in adverse
effects on the course, capacity, or condition of navigable waters of
the United States;
f. The permittee must utilize measures to minimize downstream
turbidity;
g. Wetland impacts must be compensated through mitigation approved
by the Corps;
h. Beneficiation and mineral processing for hard rock/mineral
mining activities 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;
i. All activities authorized by this NWP must comply with General
Conditions 9 and 21. Further, the District Engineer may require
modifications to the required water quality management plan to ensure
that the authorized work results in minimal adverse effects to water
quality;
j. Except for aggregate mining activities in lower perennial
streams, 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);
k. Single and complete project: The discharge must be for a single
and complete project, including support activities. Discharges of
dredged or fill material into waters of the United States for multiple
mining activities on several designated parcels of a single and
complete mining operation can be authorized by this NWP provided the
\1/2\ acre limit is not exceeded; and
l. Notification: The permittee must notify the District Engineer in
accordance with General Condition 13. The notification must include:
(1) A description of waters of the United
[[Page 12893]]
States adversely affected by the project; (2) A written statement to
the District Engineer detailing compliance with paragraph (b), 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 ensure that the proposed work complies with
paragraphs (c) through (f), 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 at 33 CFR 330.2(d) and (e), respectively. For the
purposes of this NWP, the term ``lower perennial stream'' is defined as
follows: ``A stream in which the gradient is low and water velocity is
slow, there is no tidal influence, some water flows throughout the
year, and the substrate consists mainly of sand and mud.'' (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. (a) In certain States and tribal lands an
individual 401 water quality certification must be obtained or waived
(See 33 CFR 330.4(c)).
(b) 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 or approve a water quality management plan, the
permittee must include design criteria and techniques that will ensure
that the authorized work does not result in more than minimal
degradation of water quality. An important component of a water quality
management plan includes stormwater management that minimizes
degradation of the downstream aquatic system, including water quality.
Refer to General Condition 21 for stormwater management requirements.
Another important component of a water quality management plan is the
establishment and maintenance of vegetated buffers next to open waters,
including streams. Refer to General Condition 19 for vegetated buffer
requirements for the NWPs.
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 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. As a result of formal or informal
consultation with the FWS or NMFS, the District Engineer may add
species-specific regional endangered species conditions to the NWPs.
(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
[[Page 12894]]
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 PCN is complete within 30 days of the
date of receipt and can request the additional information necessary to
make the PCN complete 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 PCN 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, 40, 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 14, Linear Transportation Crossings, the PCN must
include a compensatory mitigation proposal to offset permanent losses
of waters of the United States and a statement describing how temporary
losses of waters of the United States will be minimized to the maximum
extent practicable.
(7) For NWP 21, Surface Coal Mining Activities, the PCN must
include an Office of Surface Mining (OSM) or state-approved mitigation
plan.
(8) For NWP 27, Stream and Wetland Restoration, the PCN must
include documentation of the prior condition of the site that will be
reverted by the permittee.
(9) 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 \1/4\ 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 \1/4\ 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;
(10) 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.
(11) 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.
(12) For NWPs 39, 43, and 44, the PCN must also include a written
statement to the District Engineer explaining how avoidance and
minimization of losses of waters of the United States were achieved on
the project site.
(13) For NWP 39, Residential, Commercial, and Institutional
Developments, and NWP 42, Recreational Facilities, the PCN must include
a compensatory mitigation proposal that offsets unavoidable losses of
waters of the United States or justification explaining why
compensatory mitigation should not be required.
(14) For NWP 40, Agricultural Activities, the PCN must include a
compensatory mitigation proposal to offset losses of waters of the
United States.
(15) 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.
(16) 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
aggregate mining activities in isolated waters and non-
[[Page 12895]]
tidal wetlands adjacent to headwaters and any hard rock/mineral mining
activities).
(17) For activities that may adversely affect Federally-listed
endangered or threatened species, the PCN must include the name(s) of
those endangered or threatened species that may be affected by the
proposed work or utilize the designated critical habitat that may be
affected by the proposed work.
(18) For activities that may affect historic properties listed in,
or eligible for listing in, the National Register of Historic Places,
the PCN must state which historic property may be affected by the
proposed work or include a vicinity map indicating the location of the
historic property.
(19) For NWPs 12, 14, 29, 39, 40, 42, 43, and 44, where the
proposed work involves discharges of dredged or fill material into
waters of the United States resulting in permanent, above-grade fills
within 100-year floodplains (as identified on FEMA's Flood Insurance
Rate Maps or FEMA-approved local floodplain maps), the notification
must include documentation demonstrating that the proposed work
complies with the appropriate FEMA or FEMA-approved local floodplain
construction requirements.
(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)-(19) 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 effects on the
aquatic environment to a minimal level.
For activities requiring notification to the District Engineer that
result in the loss of greater than \1/2\ 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, except as provided below. The District Engineer
will indicate in the administrative record associated with each
notification that the resource agencies' concerns were considered. As
required by Section 305(b)(4)(B) of the Magnuson-Stevens Fishery
Conservation and Management Act, the District Engineer will provide a
response to National Marine Fisheries Service within 30 days of receipt
of any Essential Fish Habitat conservation recommendations. 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)(9)(iii) for parcels less than \1/4\ 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.
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. The certification will include: (a) A statement that the
authorized work was done in
[[Page 12896]]
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. The project must be designed and constructed to
avoid and minimize adverse effects to waters of the United States to
the maximum extent practicable at the project site (i.e., on site).
Mitigation will be required when necessary to ensure that the adverse
effects to the aquatic environment are minimal. The District Engineer
will consider the factors discussed below when determining the
acceptability of appropriate and practicable mitigation necessary to
offset adverse effects on the aquatic environment that are more than
minimal.
(a) Compensatory mitigation at a minimum 1:1 ratio will be required
for all wetland impacts requiring a PCN. Consistent with National
policy, the District Engineer will establish a preference for
restoration of wetlands to meet the minimum compensatory mitigation
ratio, with preservation used only in exceptional circumstances.
(b) 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 upland vegetated buffers to protect open waters such as streams; and
replacing losses of aquatic resource functions and values by creating,
restoring, enhancing, or preserving similar functions and values,
preferably in the same watershed;
(c) The District Engineer will require restoration, creation,
enhancement, or preservation of other aquatic resources in order to
offset the authorized impacts to the extent necessary to ensure that
the adverse effects on the aquatic environment are minimal. An
important element of any compensatory mitigation plan for projects in
or near streams or other open waters is the establishment and
maintenance, to the maximum extent practicable, of vegetated buffers
next to open waters on the project site. The vegetated buffer should
consist of native species. The District Engineer will determine the
appropriate width of the vegetated buffer and in which cases it will be
required. Normally, the vegetated buffer will be 25 to 50 feet wide on
each side of the stream, but the District Engineer may require wider
vegetated buffers to address documented water quality concerns. If
there are open waters on the project site and the District Engineer
requires compensatory mitigation for wetland impacts to ensure that the
net adverse effects on the aquatic environment are minimal, any
vegetated buffer will comprise no more than \1/3\ of the remaining
compensatory mitigation acreage after the permanently filled wetlands
have been replaced on a one-to-one acreage basis. In addition,
compensatory mitigation must address adverse effects on wetland
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 39, \1/4\ acre of wetlands cannot be
created to change a \1/2\ 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.
(d) 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 losses of waters of the United States
and ensure that the net adverse effects of the authorized work on the
aquatic environment are minimal, consolidated mitigation approaches,
such as mitigation banks, will be the preferred method of providing
compensatory mitigation, unless the District Engineer determines that
activity-specific compensatory mitigation is more appropriate, based on
which 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 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.
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 activity must be designed to maintain preconstruction downstream
flow conditions (e.g., location, capacity, and flow rates).
Furthermore, the activity 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
activity must, to the maximum extent practicable, provide for retaining
excess flows from the site, provide for maintaining surface flow rates
from the site similar to preconstruction conditions, and must not
increase water flows from the project site, relocate water, or redirect
water flow beyond preconstruction conditions. In addition, the activity
[[Page 12897]]
must, to the maximum extent practicable, reduce adverse effects such as
flooding or erosion downstream and upstream of the project site, unless
the activity is part of a larger system designed to manage water flows.
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 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. The District
Engineer may also designate additional critical resource waters after
notice and opportunity for 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. Fills Within 100-Year Floodplains. For purposes of this general
condition, 100-year floodplains will be identified through the Federal
Emergency Management Agency's (FEMA) Flood Insurance Rate Maps or FEMA-
approved local floodplain maps.
(a) Discharges Below Headwaters. Discharges of dredged or fill
material into waters of the United States resulting in permanent,
above-grade fills within the 100-year floodplain at or below the point
on a stream where the average annual flow is five cubic feet per second
(i.e., below headwaters) are not authorized by NWPs 29, 39, 40, 42, 43,
and 44. For NWPs 12 and 14, the prospective permittee must notify the
District Engineer in accordance with General Condition 13 and the
notification must include documentation that any permanent, above-grade
fills in waters of the United States within the 100-year floodplain
below headwaters comply with FEMA or FEMA-approved local floodplain
construction requirements.
(b) Discharges in Headwaters (i.e., above the point on a stream
where the average annual flow is five cubic feet per second).
(1) Flood Fringe. Discharges of dredged or fill material into
waters of the United States resulting in permanent, above-grade fills
within the flood fringe of the 100-year floodplain of headwaters are
not authorized by NWPs 12, 14, 29, 39, 40, 42, 43, and 44, unless the
prospective permittee notifies the District Engineer in accordance with
General Condition 13. The notification must include documentation that
such discharges comply with FEMA or FEMA-approved local floodplain
construction requirements.
(2) Floodway. Discharges of dredged or fill material into waters of
the United States resulting in permanent, above-grade fills within the
floodway of the 100-year floodplain of headwaters are not authorized by
NWPs 29, 39, 40, 42, 43, and 44. For NWPs 12 and 14, the permittee must
notify the District Engineer in accordance with General Condition 13
and the notification must include documentation that any permanent,
above grade fills proposed in the floodway comply with FEMA or FEMA-
approved local floodplain construction requirements.
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.
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
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.
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.
Flood Fringe: That portion of the 100-year floodplain outside of
the floodway (often referred to as ``floodway fringe.''
Floodway: The area regulated by Federal, state, or local
requirements to provide for the discharge of the base flood so the
cumulative increase in water surface elevation is no more than
[[Page 12898]]
a designated amount (not to exceed one foot as set by the National
Flood Insurance Program) within the 100-year floodplain.
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 stream bed
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., the 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 either non-emergent, sparse, or
absent. Vegetated shallows are considered to be open waters. The term
``open water'' includes rivers, streams, lakes, and ponds. For the
purposes of the NWPs, this term does not include ephemeral waters.
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.
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.
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.
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.
[[Page 12899]]
Vegetated buffer: A vegetated upland or wetland area next to
rivers, streams, lakes, or other open waters which separates the open
water from developed areas, including agricultural land. Vegetated
buffers provide a variety of aquatic habitat functions and values
(e.g., aquatic habitat for fish and other aquatic organisms, moderation
of water temperature changes, and detritus for aquatic food webs) and
help improve or maintain local water quality. A vegetated buffer can be
established by maintaining an existing vegetated area or planting
native trees, shrubs, and herbaceous plants on land next to open
waters. Mowed lawns are not considered vegetated buffers because they
provide little or no aquatic habitat functions and values. The
establishment and maintenance of vegetated buffers is a method of
compensatory mitigation that can be used in conjunction with the
restoration, creation, enhancement, or preservation of aquatic habitats
to ensure that activities authorized by NWPs result in minimal adverse
effects to the aquatic environment. (See General Condition 19.)
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.
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. 00-5194 Filed 3-8-00; 8:45 am]
BILLING CODE 3710-92-P