T:
Thursday,
March 9, 2000
Part DDE
Department of
Defense
Department of the Army, Corps of
Engineers
Final Notice of Issuance and Modification
of Nationwide Permits; Notice
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Federal Register/Vol. 65, No. 47/Thursday, March 9, 2000/Notices
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.
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 'Vz acre. Most of the new and
modified NWPs require notification to
the district engineer for activities that
result in the loss of greater than Via 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 ^FORMATION 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 ^FORMATION:
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 NW]Ps 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
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12819
acreage limit for most of the new and
modified NWPs is Vz 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 Vio 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
(WQQ 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
/. 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 (FT) 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 Vz
acre limit. Notification to the district
engineer will be required for most
activities that result in the loss of greater
than Vio 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 Vb 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.
H. 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 Vz 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
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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
mav 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 (sLOPs) 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 ana 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 ifjhe 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 ain
alternative replacement NWP package
that included lowering the acreage limit
of the new and modified NWPs to Va
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 Va 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 a.quatic
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.
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We believe that the terms and
conditions of the new and modified
NWPs, including the Va acre limit and
Via 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 Vi 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 to1 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 Vio 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
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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 V2 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)(l)
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)(l)
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,
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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. Onp commenter said
that the new NWPs should be
Devaluated when the current NWPs are
Devaluated 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 GFR 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.
furisdictional 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 paid 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
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12823
require a Section 404 permit. These
activities may be authorized by NWPs.
NWPs issued under the Łorps 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 iis 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
FR41217). 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
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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.
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 i
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 19,1993.
The proposal published in the July 21,
1999, Federal Register was a
modification of the original July i, 1993,
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 FY1998
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 NWP* issued
today (i.e., the V2 acre limit and the
revised floodplain condition) would
result in impacts very similar to the IWR
estimate for a Vz 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
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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 thpse activities
with minimal adverse effects on the
aquatic environment, individually and
cumulatively, across the country. The
NWPs also contain notii'ication
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 fora
DA permit. If a proposed activity does
• not meet the terms and conditions of an
NWP, then that activity jcould 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 v -:rs of
the United States that have mi; .\al
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 Va acre and Vi 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
Vz acre limit. We have not imposed a Vz
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 Vz 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 Vz acre.
Many commenters indicated that the
PCN thresholds for the new and
modified NWPs should be Vs acre,
instead of Vt 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
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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 Vio
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 V\o acre. The Vto
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)(l) 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.
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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 notresiilt 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 thaniminimal
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)(l) 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
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notice. Those individuals that
commented on the preliminary EAs
requested that the Corps include an
alternatives analysis in each BA. 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.? of the Section
404(b)(l) 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 ordesignated 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 Local1 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.
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12829
Division engineers can regionally
condition the NWPs to lower the 300
linear foot limit for streani bed impacts,
impose linear foot limits for stream bed
impacts on other NWPs, or establish
lower PCN thresholds for'fllling 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,1 intermittent,
and ephemeral streams. •,
District engineers will utilize the best
methods available to ideritify 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.l 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)(l)). 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
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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)
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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 'A acre of wetlands. Other
commenters suggested l/2, Va, 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;l:l 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
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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 Vio
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 ofwaters 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
391 A) 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
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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 up lands'next to streams
and other open waters, would provide
on-sita 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 degradation1 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 Va 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
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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 dreHged 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
Federal Register/Vol. 65, No. 47/Thursday, March 9, 2000/Notices
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 !s 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
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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 prpvide 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.
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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
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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 co;mmenters
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 p'olicy.
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.
It 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
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Federal Register/Vol. 65, No. 47/Thursday, March 9, 2000/Notices
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
commehters 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).
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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 the1 national public
interest to do so. Such a modification
must go through a public notice and
comment process. However, if a Corps
district determines thatt 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
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backlog would increase by the same
amount during that five year period.
The changes to the new and modified
NWP issued today, including the Vz 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 offish 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
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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 recomjnended that
the Corps revoke the NWPs in all
watersheds or sub-basins1 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 sjmply 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.
HI. 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
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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)(l)(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 hot 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 Vs
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 V3 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
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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 of 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 V3 acre limit.
One commenter supported the V* 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 V3
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.
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replacement, or repair of utility lines in
waters of the United States. Emergency
procedures for the Corps regulatory
program are discussed in 33 CFR
32S.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 Qowlines 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 VA 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 Vi 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 Vio
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, arid 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 Vio 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 Vz 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
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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 cqmmenters 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
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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 Vb acre limit. One
commenter said thai 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 Vz 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
Vz acre. For public linear transportation
crossings in tidal waters or non-tidal
wetlands adjacent to tidal waters, the
acreage limit will be Va acre. For private
linear transportation crossings, the
acreage limit will be Va 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 Vb 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 Via 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 'Ao 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 Vio
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
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12847
paragraph (h) does not contradict the
Corps definition of the term "single and
complete project" at 33 GFR 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 conditipns 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
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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
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12849
the adverse effects on the aquatic
environment are minimal, or exercise
discretionary authority to require an
individual permit for the jwork. 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 Vz 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 Vb 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 Vio 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 Vio 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 Vz 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
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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 (Q) 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 0)- 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 I 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
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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 Vz 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 and40 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 \yhether 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 can1 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.
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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 audiorize
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 Vz 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 "A acre limit. Other commenters
suggested Vio, Va, 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 V» 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 Vz 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 have1 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 iFarm 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)(l) 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)(l) 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
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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 Gommenter said that the PCN
threshold for this NWP should be V3
acre and another commenter stated that
the PCN threshold should be Vio 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 Vio 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 Vz 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 Vz 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 Vz 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
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a residential, commercial, or
institutional development, the
combined acreage loss of waters of the
United States authorized by NWPs 39
and 40 cannot exceed Va acre. NWP 40
cannot be used repeatedly on a single
farm tract to exceed the Va 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 luly 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 reruirements.
A commenter stated that th -discussion
of the Section 404(0 exem{ on for ditch
maintenance in the July 21. i999,
Federal Register notice is inaccurate
because it did not include the recapture
provision of Section 404(0(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(0(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(0 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
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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 s-hould not be a lim}t on this NWP
if the activity does riot 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 irripede 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 ills 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
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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 'A acre and two commenters
suggested a Va 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 Vz 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 Va
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 Vio 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
(invlronment" 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
Chrase "reduced fertilizer use" should
e 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:ln 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
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12857
facilities constructed in uplands that
contain wetland vegetation should not
be considered jurisdictiqnal 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 V*
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 V2 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 Vz 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 v« acre
PCN threshold is too small and two
other commenters suggested a Va acre
PCN threshold. One commenter stated
that the PCN threshold should be lower.
We have lowered the PCN threshold
for this NWP to Vio 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 Vio 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)(l) of the
proposed NWP (now designated as
subparagraph (d)(l)) 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.
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Subparagraph (d)(l) 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 me
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 n;ew 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. j
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
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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 rook/mineral mining
activities. These activities are
sufficiently similar in nature to warrant
the issuance of a single NWP.
One-commenter asked1 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
Vz 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,
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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 Va 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 tor
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 (bj) 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 it
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
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 (1)) to clarify what
constitutes a single and complete
mining activity. In paragraph (1)
(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 Va 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 Rejjister 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
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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 adyerse 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, 199;6, 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 t;o 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:
"tdertification 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
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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" widi 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 d0es 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
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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 fwater 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.
Federal Register/Vol. 65, No. 47/Thursday, March 9, 2000/Notices
12863
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
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• •
discharges of dredged or fill material
into ephemeral streams. We do not agree
that there should be a minimum project
size to determine when stonnwater
management facilities are necessary.
Numerous commenters addressed tne
vegetated buffer requirement in fhe
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 ot
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
. *._ c-.. »V»rt MTATPc are
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requirements for the NWPs
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
rerffierm "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
The notification requirements for
General Condition 11 are necessary to
ensure that activities authorized by
NWPs comply with the requirements ot
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 FW6.
Another commenter said that individual
permits should be required for activities
that may affect endangered or
threatened species or their critical
habitat. .K
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
ESAs a consequence of the NWP/General
Permit Programmatic ESA Section 7
consultation, district engineers will
develop Standard Local Operating
Procedures for Endangered Species and
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Federal Register/Vol. 65, No. 47/Thursday, March 9, 2000/Notices
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 hais 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.
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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 ail 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
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12867
with the recent modification of NWP 29,
which reduced the acreage limit to Ą4
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 ?/s 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 Vz acre
because most of the new NWPs have
maximum limits of V2 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 Vz 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 V2 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
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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.i
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 or these
PCNs.
This general condition is adopted
with the modification^ 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
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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 jto 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 comme'nter 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 NWP.s 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
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second sentence in paragraph (c) to
clarify that vegetated buffers next to
open waters can be requited 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^he 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 Wafer 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 .
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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
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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.
Genera/ Comments on Proposed
Genera/ 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 niinimal 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
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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
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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. i
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 arid 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
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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 exclusion1 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-afe 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 wo'uld 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
ho'vy 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
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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 (NFBP) 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 brownfieids, because
most brownfieids 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
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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 nils 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 fay
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 arid 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 hot 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
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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 th0 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 arid 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 lie
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 ilf they cannot
demonstrate that the proposed work is
located outside of 100-year floodplains
because there are no FEMA or local i
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
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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 FTRMs 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 nave 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 requirerajents 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
FBRMs 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 hot 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.
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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 l/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 Vi 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 arrect
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 thatthis 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
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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 nextito 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.
Form 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
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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 tsommenter
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 Va acre of wetlands to
change a 3/4 acre loss of wetlands to a
V4 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 alsoj 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 definitiofa is adopted with
the modification discussed above.
Non-tidal wetlandl One commenter
said that the third sentence of the
proposed definition is not accurate
because it changes th'e 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 fthat 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.
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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 hot 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
l/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
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Federal Register/Vol. 65, No. 47/Thursday, March 9, 2000/Notices
"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 CPR 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)(l) 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 isite 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 wejtlands 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 velocjty, stream
substrate, faunal composition, and
floodplain development of the lower
perennial stream.
Since the term "lower perennial
stream" is used onlyin the context of
NWP 44, we have provided a modified
version of the Cowardin definition in
the text of this NWP.jThis 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, MM 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
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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. Box60267, 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
SL 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
68102^1978
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, MM 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
Tenne
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. FL 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
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Federal Register/Vol. 65, No. 47/Thursday, March 9, 2000/Notices
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:
(1) 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 19 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 bjyr 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., bridgejs, 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 dimensipns 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.1
(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 siny
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(0
exemption for maintenance.
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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, arid 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
dial 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 Vz 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 Vz 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 Vz 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;
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(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 Vio
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)
Notu 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
bo 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 v» acre of
waters of the United States;
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(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 V3 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 Va 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 Vio 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 tha 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, hi 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)(l), (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
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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 jcreatlon 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 fay
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 creatipn 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)(l) 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)(l). 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 Vz 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 Vio 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 Vio 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
Vio 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
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the loss of waters of the United States
(e.g., Vi2 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., Vi2 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 Vz 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 Via 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 Vi 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 Vz 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; arid
(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., Vb acre of emergent
wetlands); and (e) The type, acreage (or
square feet), and location of
compensatory mitigation (e.g., Vb 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 Vz 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 Vio
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
V2 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
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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 bylparagraphs (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 Vz
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
i-fflh
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 Vz 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 Vz 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 Vio 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
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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 Vz 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 Vio 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 (Le.,
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 thej United States and
why additional minimization cannot be
achieved); I
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 cubjc 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, pl^is the acreage loss
of waters of the United States resulting
from support activities, cannot exceed
V-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.. vjyrhy 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, die
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;
n. 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€orps
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 Vz
acre limit is not exceeded; and
1. 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
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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 GFR
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 oh
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) ForNWPs 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.rws.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
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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
s 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 wijl not commence
until all of the requested information
has been received by the District
Engineer. The prospective permittee
shall no.t begin the activity:
(1) Until notified in-writing by the
District Engineer that the activitv 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 nofcreceived
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 rnusi
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 foria personal
residence of the permittee;
(iii) A description of the entire parcel
including its size, andia delineation of '
wetlands. For the purpose of this NWP
parcels of land measuring '/, 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 'A acre in size, a
formal wetland delineation must be
prepared in accordance with the current
method required by the Corps. (See
paragraph 13(fJ);
(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 aky land owned
as a partner, corporation, joint tenant,
co-tenant, or as a tenani-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
deptJis 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 Dewaterine
the PCN must also include a restoration
plan of reasonable measures to avoid
and minimize adverse effects to aquatic
resources.
rJ*r2) For NWPs 39- 43> and 44, the
FCN must also include a written
statement to the District Engineer
explaining how avoidance and I
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-
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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 Va 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
V* 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
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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.
IS. 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
Vh 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 ' 'nited States or
discharges of dredged o 11 material,
mav 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.,
Iras'h, 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 Natidnal 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 cjr near streams or
other open waters is the establishment
and maintenance, to the maximum
extent practicable, of vegetated buffers
next to open waters pn 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 Vs 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,
V* acre of wetlands cannot be created to
change a V2 acre loss of wetlands to a
>A acre loss; however, Vz acre of created
wetlands can be used to reduce the
impacts of a Va 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
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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
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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 wafer: 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 flowk
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)(l) Guidelines. Steep
gradient sections of streams are
sometimes characterized by riffle and
pool complexes. Such stream sections
are recognizable by their hydraulic
characteristics. The r|apid movement of
water over a course s'ubstrate 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
I
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 waterhodies.
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. TidaJ 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.
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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 p lanting 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)(l) 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 ami
BILUNQ CODE 3710-O-P
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