Wednesday
July 21, 1999
Part 111
Department of
Defense
Department of the Army, Corps of
Engineers .
Proposal to Issue and Modify Nationwide
Permits; Notice
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39252
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Proposal To Issue and Modify
Nationwide Permits; Notice
AGENCY: Army Corss of Engineers. DoD.
ACTION: Notice of intent and request for
co H
.Federal Register/Vol. 64. tyo. 1397jyednesda
21, 1999/tyorirpc
—— _
SUMMARY: To improve protection of che
aquatic environment, the Corps of
Engineersi is proposing to issue 5 new
Nationwide Permits (NWPs) and modify
6 existing NWPs to replace NWP 26
when it expires. The Corps is also
proposing to modify 9 NWP general
conditions and add three new general
conditions. These general conditions
will apply to the proposed new and
modified NWPs. as well as the NWPs
issued on December 13. 1996. when the
new and modified NWPs become
effective. The proposed new NWPs are
activity-specific and authorize activities
in all non-tidal waters of the United
States, except for non-tidal wetlands
adjacent to tidal waters. These proposed
new and modified NWPs will allow
Corps districts to enhance protection of
the aquatic environment, by utilizing
the Corps limited resources to review
proposed projects, based on the degree
of adverse effects on the aquatic
environment. The Corps will spend
more time on projects with the potential
lor more environmental damage and less
time on projects with minimal adverse
effects on the aquatic environment. The
Corps has developed, with public and
Federal. Tribal, and State agency
comments, terms and conditions to
ensure that the adverse effects of
authorized activities are minimal. A key
element of this process by the Corns to
develop NWPs with mtataSadvSse
eilects on the aquatic environment is
regional conditioning developed by
district and division engineers. Regional
conditioning of NWPs is critical to
ensure that the NWPs help the Corps
achieve these goals. Regional
conditioning of NWPs is necessary to
account for differences in aquatic
resource functions and values across the
country. Regional conditions will be
added to the proposed new and
modified NWPs by division engineers to
ensure that the NWPs authorize^ only
those activities that have minimal
adverse effects on the aquatic
environment, individually or
cumulatively. Concurrent with this
Federal Register notice, each Corps
district will issue a public nptice to
regional conditions foe rhe proposed
new and modified NWPs
The purpose of this Federal Register
notice is to-solicit comments on the
final drajt of che proposed new and
mod,fied NWPs chat w|ll replaceNWP
26.aswellastheNWP!general
conditions and definitions. Concurrent
with this Federal Register notice each
Corps district will publish a public
notice to solicit comments on their final
and mod'ifie condition;s for the new
period for these district'publlc'noMces
will be 45 days. After reviewing the
comments received in response to this
Federal Register notice,^ Corps w11
issue another Federal Raster notice
announcing the issuance of the new and
. modified NWPs to start the final 67dayS
for the State and Tribal Section 401
•Water Quality Certification and Coastal'
Zone Management Act consistency
determination decisions.'After this 60-
day period, the new and modified
e^riT11 beC°me effect^ve M NWP 26
To improve the implementation of the
vwp°8ram' ^S Corps !has Combined
NWP general conditions and Section
Only conditions into [one set of
general conditions. The Cbrps will issue
a set of definitions for USP vt/it-h ait ^F»U_
NWPs to provide more CS™ ^f^6
fnrkf MwC/Dti0n °f terms C(?mmonly used
in the NWP program.
Although NWP 26 was scheduled to
haTexte" ptember 15' 1j399- *e Corps
NWP 26 to DeceSS? 1999! or°untu"
the effective date of the new and
modified NWPs, whichever contes first
DATES: Comments on the proposed new
and modified NWPs must Ibe received
by September 7, 1999. ;
OR, 20 Massachusetts Avenue/NW
Washington. DC 20314-1000. Submit
electronic comments to
cecwor@hq02.usace.army.mil See
SUPPLEMENTARY INFORMATION for file
formats and other information about
electronic filing of comments.
TOR FURTHER INFORMATION CONTACT: Mr
Sn^d Olson or Mr- Sam Collinson "at
(202) 761-0199 or access the Corps of
Engineers Regulatory Home Page at
http://www.usace.army.mil/finet/
runctions/cw/cecwo/reg/. .;
SUPPLEMENTARY INFORMATION:
Background I
On December 13. 1996, the Corps of
Engineers (Corps) reissued NWP 26 for
a period of two years and announced its
Intention to replace NWP 26 [with
activity-specific NWPs prior to the
e
6
6 NW
tributary
. Un"ed States and are not adjacent
to interstate or navigable waters
Headwaters non.tidaj str
ajd 'mpoundments that are part of a
trioutary system to interstate or
navigable waters of the United States
wicn an average annual flow of less than
5 cubic feet per second. '
The new and modified NWPs
proposed in the July 1, 1993. Federal
Register notice could authorize many of
the same activities with minimal
adverse effects on the aquatic
environment that are currendy
authorized by NWP 26. Most of the
proposed new and modified NWPs
authorize activities in all non-tidal
™te£°fthe United States- excluding
non-tidal wedands adjacent to tidal
waters. These proposed NWPs will
"nsfu.refthat the NWP program is based
on the types of authorized activities.
NWP? n°,nditi°ning of these Proposed
NWPs wdl limit or prohibit their use in
high quality waters..
The terms and limits of the proposed
new and modified NWPs are intended
to authorize activities that typically
result in minimal adverse effects on the -
aquatic environment. For these
Pr°P°sed NWPs. the Corps has also
fPCM ^ uPCff onstruction notification :
(PCN) thresholds to ensure that any
activity that may potentially have more
than minimal adverse effects will be
reviewed by district engineers on a cas.e-
by-case basis. Most of the proposed
NWPs require submission of a PCN for
f^f3,0/?reater than 'A acre of waters
ol the United States. Most of the
proposed NWPs require PCNs for Riling
open waters, including streams, and for
certain proposed NWPs a PCN may be
required for filling more than 500 linear
reel of stream bed. The PCN
requirements for filling stream beds may
differ, depending on whether a
perennial, intermittent, or ephemeral
tuffS* k fljled< For most of these
NWPs. there is no PCN requirement for
filling ephemeral stream beds.
•earn beds may require
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Federal Register-Vol. 64, Mo. 139 /Wednesday. July 21, 1999/Notices
39253
in a discharge of dredged material.
including redeposit other than
incidental fallback, into waters of the
United States. Regional conditions may
be added to NVVPs by district or division
engineers to lower notification
thresholds or require notification for all
activities authorized by an NWP in
order to ensure no more than minimal
adverse effects on the aquatic
environment.
The 5 new NWPs proposed in this
Federal Register notice will expire 5
years from their effective date. The
proposed 6 modified NWPs (i.e., NWPs
3, 7, 12, 14. 27, and 40) will expire on
February 11. 2002, with the other NWPs
that were issued, reissued, or modified
in the December 13, 1996, Federal
Register notice (61 FR 65874-65922).
The proposed new and modified NWPs
are scheduled to become effective on
December 24, 1999, and we have
extended the expiration date of NWP 26
to December 30, 1999, or the effective
date of die new and modified NWPs,
whichever occurs first. The extension of
the expiration date for NWP 26 is
discussed in more detail below.
Compensatory mitigation will be
required when the District Engineer
determines such mitigation is necessary
to ensure that the activities authorized
by NWPs will result only in minimal
adverse effects on the aquatic
environment. For a particular project,
the District Engineer may determine diat
compensatory mitigation is not
necessary, because die activity will
result in no more than minimal adverse
effects on the aquatic environment
without compensatory mitigation. Some
of the NWPs contain requirements for
compensatory mitigation for certain
activities, particularly for activities dial
require notification to die District
Engineer. Compensatory mitigation will
be used to support die goal of no net
loss of aquatic resource functions and
values by offsetting impacts to die
aquatic environment. Compensatory
mitigation can be accomplished through
die restoration, creation, enhancement,
and/or in exceptional circumstances,
preservation of aquatic resources either
by individual projects constructed by
die permittee or die use of mitigation
banks, in lieu fee programs, or odier
consolidated mitigation efforts. For the
new and modified NWPs, an important
component of compensatory mitigation
is die establishment and maintenance of
vegetated buffers adjacent to open and
flowing waters. Vegetated buffers
adjacent to open waters or streams may
consist of eidier uplands or wetlands
and help protect and enhance local
water qualify and aquatic habitat
features in the waterbody. Vegetated
buffers can be established by
maintaining an existing vegetated;area
adjacent to open or "flowing waters or by
planting native trees, shrubs, and
herbaceous perennials in areas with
little existing perennial native
vegetation. The benefits and
requirements for vegetated buffers are
discussed in further detail below.
. During the review of PCNs, district
and division engineers can exercise
discretionary authority and require an
individual permit for those activities
diat result in more than minimal
adverse effects on the aquatic
environment. District engineers can also
place conditions, including
compensatory mitigation requirements,
on NWP authorizations on a case-by-
case basis to ensure that the activity
.authorized by die NWP results only in
minimal adverse effects on the aquatic
environment.
For these NWPs. we are placing
greater emphasis on regional
conditioning to ensure that die NWPs
authorize only activities with minimal
adverse effects on the aquatic
environment. Regional conditions allow
the NWP program to take into account
regional differences in aquatic resource
functions and values across die country.
Each district will identify areas of high
value waters diat require lower PCN
thresholds or notification for all
activities in those waterbodies to ensure
diat die NWPs audiorize only activities
with minimal adverse effects on the
aquatic environment Division engineers
can also suspend or revoke certain
NWPs in high value waters if the use of
those NWPs would result in more than
minimal adverse effects on the aquadc
environment, individually or
cumulatively. The regional conditioning
process is discussed in more detail
below.
The Corps believes that die new and
modified NWPs, with regional
conditions, will increase die overall
protection of the aquatic environment
when compared to the existing NWP
program. However, the scope of
applicable waters for die proposed
NWPs and the proposed NWP General
Condition 27, which prohibits the use of
certain NWPs to audiorize permanent,
above-grade fills in waters of the United
States within the 100-year floodplain,
will substantially increase die Corps
individual permit workload. The
proposed new and modified NWPs, in
addition to the existing NWPs. will
allow die Corps to efficiently authorize
activities with minimal adverse effects
on the aquatic environment and focus
its efforts on protecting high value
aquatic resources. NWPs will be used to
authorize most activities in low value
waters. Higher value waters, including
wetlands, will receive additional
protection through regional
conditioning of the NWPs, special
conditions on specific NWP
authorizations, and case-specific
discretionary authority to require an
individual permit when necessary.
Regional conditions will be required by
each district to restrict or prohibit the
use of NWPs in high value waters. The
Corps will require compensatory
mitigation, where appropriate, to ensure
that the individual or cumulative
adverse effects on the aquatic
environment authorized by these NWPs
are no more than minimal. NWPs may
also be suspended or revoked in some
high value waters if die use of diose '.
NWPs would result in more dian
minimal adverse effects on die aquatic
. environment.
The proposed new and modified
NWPs also reflect die Corps increased
focus on open or flowing waters. One of
the goals of the proposed new and
modified NWPs is to improve protection
of open waters and streams, especially
water quality and aquatic habitat, while •
continuing to fully protect wedands.
District engineers will not place less
consideration on adverse effects to odier
types of waters for the sake of wedands,
especially low value wedands. The
establishment and maintenance of
vegetated buffers adjacent to open
waters and streams will protect, restore,
and enhance water quality and aquatic
habitat. Vegetated buffers can be used to
provide out-of-kind compensatory
mitigation for wetland impacts where
die District Engineer determines diat
such mitigation for wetland impacts is
die best, ecologically, for die aquatic
environment.
In addition to regional conditioning of
die proposed new and modified NWPs,
additional substantial protection of the
aquatic environment will result from the
modification of two:NWP general
conditions. We are proposing to modify
General Condition 9, Water Quality, to
require diat postconstruction conditions
do not result in more than minimal
degradation of downstream water-
quality. An important component of this
general condition is die requirement
diat, for certain NWPs, die permittee
implement a water quality management
plan to protect water quality. The water
quality management plan may consist of
stormwater management facilities or
vegetated buffers adjacent to open or
flowing waters or wedands. It is not our
intent to replace existing State or local
water quality safeguards if those current
safeguards are adequate. However,
where die State or local program does
not ensure that an authorized act*''**v
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Federal Register/Vol. 64, No. 1397Wednesday. July 21, 1999/Notices
results in no more than minimal
impacts on downstream wacer qualitv.
the Corps will condition its NWP
authorization to contain a v. "er quality
•management plan. We are a..,o
^roposing to modify former Section 404
Only condition 6 (now designated as
General Condition 21) to require that
neither upstream nor downstream areas
.ire subject to more than minimal
flooding or dewatering after the project
has been constructed and while the
authorized activity is operated. General
Condition 21 will help ensure that
postconstruction effects on local surface
water flows are minimal.
On October 14. 1998, the Corps
published a supplemental notice in the
Federal Register (63 FR 55095-55098)
requesting comments on additional
proposed limitations for the NWP
program, including the proposed new
and modified NWPs. This Federal
Register notice also announced the
withdrawal of NWP B for master
planned development activities from the
July I, 1998. proposal. The additional
NWP limitations proposed in the
October 14. 1998. Federal Register
notice. Include prohibiting the use of
NWPs in certain designated critical
resource waters, limiting the use of
NWPs in Impaired waters, and
prohibiting the use of the new NWPs to
authorize permanent, above-grade
wetland fills in waters of the United
States within the 100-year floodplain as
mapped by the Federal Emergency
Management Agency.
As a result of die proposal published
on October 14. 1998. we are proposing
to add 3 new NWP general conditions-
General Condition 25, Designated
Critical Resource Waters, prohibits the
use of certain NWPs to authorize
discharges of dredged or fill material
into designated critical resource waters,
including wetlands adjacent to those
waters. General Condition 25 also
requires notification to the District
Engineer for activities authorized by
certain other NWPs in Designated
Critical Resource Waters. General
Condition 26, Impaired Waters, restricts
the use of NWPs to authorize discharges
of dredged or fill material into waters of
the United States designated through
the Clean Water Act Section 303(d)
process as impaired due to nutrients,
organic enrichment resulting in low
dissolved oxygen concentration in the
water column, sedimentation and
siltatlon, habitat alteration, suspended
solids, flow alteration, turbidity, or the
loss of wetlands. General Condition 26
prohibits the use of NWPs to authorize
discharges of dredged material resulting
In the loss of greater than 1 acre of
including wetla. :js adjacent to those
impaired waters. For discharges of
dredged material resulting in the loss of
I acre or less of impaired waters of the
United States, including adjacent
wetlands. General Condition 26 requires
the prospective permittee to notify the
District Engineer and clearly
demonstrate that the prjoject will not
result in further impairment of the listed
water._General Condition 27, Fills
Within the l'00-year Flqodplain,
prohibits or restricts the use of certain
NWPs to authorize permanent, above-
grade fills in waters of the United States
within the 100-year floodplain
The October214. 1998; Federal
Register notice^a-lso announced the
extension of (he-expiration date for
•NWP 26 to September 1:5. 1999. As a
result of the additional time needed to
finalize the proposed new and modified
NWPs, the Corps has decided to extend
the expiration date of NWP 26 to
December 30, 1999, or the effective date
of die new and modified NWPs,
whichever comes first, tp ensure that
there is no gap between the effective
date of the new and modified NWPs and
the expiration date of NWP 26.
Extending the expiration date of NWP
26 is necessary to ensure fairness to the
regulated public by continuing to
provide an NWP for activities in
headwaters and isolated:waters that
have minimal adverse effects on the
aquatic environment until the new and
modified.NWPs proposeii in this
Federal Register notice Become
effective. In response to |he July 1, 1998,
Federal Register notice, many
commenters recommendjed that the
Corps extend the expiratjon date of
NWP 26 until the proposed new and
modified NWPs are issued and become
effective. NWP 26 can continue to be
used to authorize activities in
headwaters arid isolated waters until its
expiration date. A permittee who
receives an NWP 26 authorization prior
to the expiration date will have up to 12
months to complete the autiiorized
activity, provided the.permittee
commences construction^ or is under.
contract to commence construction,
prior to the date NWP 26-expires (see 33
CFR Part 330.6(b)). This provision
applies to all NWP authorizations .
unless discretionary authority has .been
exercised on a case-by-caSse basis to
modify, suspend, or revoke the NWP
authorization in accordance with 33
CFR Part 330.4(e) and 33 CFR Part 330.5
(c) or (d). I
The existing NWPs, with the
exception of NWP 26, will remain in
effect until diey expire orj February 11,
2002, unless otherwise modified,
proposed new and modified NWPs can
be used with existing NWPs to authorize
' activities with minimal adverse effects
on the aquatic environment. The use of
more than one NWP to authorize a
single and complete project is addressed
in the proposed modification of General
Condition 15. Use of Multiple
Nationwide Pi-rmits.
The October 14, 1998, Federal
Register notice also discussed the need
for additional opportunities for public
comment on the new and modified
NWPs and regional conditions. We have
modified the process for additional
. opportunities for public comment to
allow for more effective implementation
of the proposed new and modified
NWPs.
The revised process for issuing the
proposed new and modified NWPs is
illustrated in Figure 1. Figure 1 does not
contain die previous steps in the
development of the proposed new and
modified NWPs. The revised process
starts with today's publication of the
draft new and modified NWPs in the
Federal Register for a 45-day comment
period, with concurrent public notices
• issued by Corps district offices to solicit
comments on draft Corps regional
conditions for these NWPs. Comments
addressing the draft new and modified
NWPs, general conditions, and
definitions should be sent to HQUSACE,
at the address cited in die ADDRESSES
section of this Federal Register notice.
Comments addressing draft Corps
regional conditions should be sent to
the appropriate Corps district office.
After this 45-day comment period, we
will review the comments concerning
the proposed NWPs that were received
in response to this Federal Register
notice, each district will review the
comments concerning dieir final draft
regional conditions that were received
in response to their public notices, and
Corps divisions will complete the
supplemental decision documents for
the Corps regional conditions. On
October 22, 1999, the Corps will
announce the issuance of the final new
and modified NWPs in the Federal
Register to begin the final 60-day State
and Tribal Section 401 water quality
certification and Coastal Zone
Management Act (CZMA) consistency
determination processes. Concurrent
with the publication of the final new
and modified NWPs in the Federal
Register, each Corps district will
publish a public notice announcing
their final Corps regional conditions for
the new and modified NWPs. so diat the
401 and CZMA agencies can make their
decisions based on the new and
modified NWPs and the Corps regional
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Federal Register/Vol. 64, No. 139/Wednesday, July 21, 1999/Notices 39255
period, the new and modified NWPs - ' - ;.-, - .»B • ' . .
and Corps regional conditions will v '-.%'-. '^ :-'
• become effective.
BILLING CODE 3710-92-P _ '
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Federal Register/Vol. 64. No. 139/Wednesday, July 21
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The proposed new and modified
NWPs will help implement the
President's Wetlands Plan, which was
issued by die White House Office on
Environmental Policy on August 23,
1993. A major goal of this plan is that
Federal wetlands protection programs
be fair, flexible, and effective. To
achieve this goal, the Corps regulatory
program must continue to provide
effective protection of wetlands and
other aquatic resources and avoid
unnecessary impacts to private
property, die regulated public, and the
aquatic environment. The proposed new
and modified NWPs will more clearly
address individual and cumulative •
adverse effects on the aquatic
environment, ensure that those adverse
• effects are minimal, address specific
applicant group needs, and provide
more predictability and consistency to
die regulated public. Throughout die
development of these NWPs, die Corps
recognized die concerns'of the natural
resource agencies and environmental •
groups- for the potential adverse effects
on the aquatic environment resulting
from activities audiorized by these
NWPs and the regulated public's need
for certainty and flexibility in the NWP
program.
Electronic Access and Filing Addresses
You may submit comments by
sending electronic mail (e-mail) to:
cecwor@hq02.usace.army.mil
Submit electronic comments as an
ASCII file and avoid the use of any
special characters and any form of
encryption. Identify all electronic
comments by including die phrase
"Draft 1999 NWPs" in the subject line
of electronic mail messages. Comments
sent as attachments to electronic mail
messages should be in ASCII format to
ensure that diose attachments can be
read by HQUSACE.
Discussion of Public Comments
/. Overview
Approximately 10.000 comments
were received in response to the July 1,
1998 Federal Register notice, district
public notices, and national and
regional public hearings. The Corps
reviewed and fully considered all
comments received in response to the
July 1, 1998, Federal Register notice.
Most of these comments were in
opposition to die proposed NWPs. Less
dian 300 commenters were in favor of
die proposed new and modified NWPs.
A number of commenters stated that
NWP 26 is currently working well and
does not need to be replaced. Of the
10.000 comments, approximately 8,000
were form letters and poser avds diat
provided no substantive or constructive
comments. Members of environmental
groups and development groups were
typically in opposition to the proposed
new and modified NWPs. The
environmental community opposed die
proposed NWPs, asserting they would
allow too much impact on the aquatic
environment. The development
community opposed the proposed
'-NWPs, asserting diey are too restrictive
on the,regulated public. Many
commenters provided specific
comments, recommending changes to
die NWPs, general conditions, and
definitions. A few commenters provided
comments relating to 33 CFR Part 330,
the regulations for the implementation
of the NWP program. It should be noted
that the proposal published in the July
1, 1998, Federal Register was a proposal
to issue new and modified NWPs and
. modify some NWP general conditions.
We did not propose any changes to 33
CFR Part 330. We have reviewed these
comments, but will not modify 33 CFR
Part 330 at this time. Some commenters
suggested additional issues for die
Corps to consider for the NWP program.
These new issues are discussed
elsewhere in diis Federal Register
notice.
On August 19, 1998. die Corps held
a public hearing in Washington, D.C. on
the proposed NWPs. In addition to die
national-public hearing. Corps division
offices held 12 regional public hearings
in other parts of the country. The.
purpose of tiiese public hearings was to
provide interested parties with anodier
forum to comment on die proposed new
and modified NWPs. Transcripts from
diese public hearings were also
reviewed and considered for changes to
die NWPs and general conditions.
The Corps received nearly 1,000 '
comments in response to die October
14, 1998, Federal Register notice. Many
commenters objected to die proposed
additional restrictions to die NWP and
some favored the proposed changes. The
comments received in response to die
October 14,1998, Federal Register
notice are also discussed below.
II. General Comments
Most commenters opposed the new
and modified NWPs, but many
commenters expressed support for the
activity-based nature of the NWPs and
die balanced approach of the general
conditions and preconstruction
notification (PCN) requirements. Some
commenters stated that the NWPs
should be based on impacts, not
activities. Some commenters considered
die proposed NWPs to be too restrictive,
but the majority of commenters believe
diat the proposed NWPs are too broad
in scope. Many commenters objected to
the new and modified NWPs. because
rhey audiorize die loss of up to 3 acres
of wetlands without the opportunity for
public comment. A large number of
commenters remarked diat die proposed
NWPs and general conditions are too
complex. Some of these commenters
stated that die complexity of die new
and modified NWPs is contrary to the
goal of streamlining the Corps
regulatory program. One commenter
stated that the Corps should revise NWP
25,to make it specific to die needs of
each state, instead of developing broad
NWPs with national applicability. Many
commenters requested that the Corps
extend the comment period, due to die
complexity of die proposal.
Commenters opposed to die issuance
of die proposed NWPs stated diat the
NWPs should be more restrictive. These
commenters cited die fact diat die new
NWPs apply to virtually all non-tidal
waters of die United States, which they
believe results in less protection of die
aquatic environment. Many of diese
commenters stated diat die Corps intent
to replace NWP 26 with NWPs that are
more protective of the aquatic
environment is not accomplished by the
proposed NWPs..These commenters
requested diat die Corps withdraw die
proposed new and modified NWPs and
develop NWPs diat are more protective
of aquatic resources. Some commenters
said diat die environmental protection
provided by die NWPs will be reduced
by die absence of review by die Corps
and die absence of site visits. Many
commenters requested that the Corps
modify die proposed new NWPs to
provide more protection for wedands
and small streams. Several commenters' ,
stated dial the proposed NWPs help
promote sprawl development by making
it easier to fill wetlands.
We disagree with die assertion diat
the proposed new and modified NWPs
reduce protection of die aquatic
environment. The terms and conditions
of diese NWPs contain provisions that
provide more protection of aquatic
resources. For example, NWPs 39 and
43 require diat prospective permittees
submit a statement with the PCN
describing how impacts to waters of die
United States have been avoided and
minimized and explaining why
additional avoidance and minimization
cannot be achieved on die project site.
In addition, some of die proposed NWPs
require compensatory mitigation to
ensure diat die adverse effects of die
audiorized work on die aquatic
environment are minimal, a water
quality management plan to protect die
local aquatic environment, especially
downstream water quality, and
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39258
management of water flows to ensure
rhat downstream flow conditions are
maintained and that the authorized
%vork can withstand expected high
flows.
For the prop., sod new and modified
MWPs. we have directed our district
offices to regionally condition these
NWPs to provide additional protection
for high value waters. Most of these
NVVPs do not authorize activities in
non-cldal wetlands adjacent to tidal
waters.
The proposed new and modified
NWPs require submittal of a PCN to the
Corps for many activities authorized by
those NWPs. We believe that we have
established PCN thresholds that will
require Corps review of any activity that
has the potential to result in more than
minimal adverse effects on the aquatic
environment, individually or •
cumulatively. District engineers will
review these activities to ensure that
they comply with the terms and
conditions of the NWPs and result in
minimal adverse effects on the aquatic
environment. District and division
engineers can lower PCN thresholds
when necessary to review additional
projects. Through the PCN process.
district engineers can add case-specific
conditions and require compensatory
mitigation to further protect the aquatic
environment and replace aquatic
resource functions and values that are
lost as a result of the authorized work.
The PCNs will also allow district
engineers to monitor the cumulative
adverse effects of activities authorized
by NWPs. The new NWPs do not
promote sprawl development. Zoning
and land use are the responsibilities of
State. Tribal, and local governments. If
the construction of a new development
involves the discharge of dredged or fill
material into waters of die United
States, the NWPs can be used to satisfy
Section 404 permit requirements,
provided the activity complies with the
terms and conditions of the NWPs and
results in minimal adverse effects on the
aquatic environment If the proposed
work does not comply with the NWPs,
then a regional general permit, if
applicable, or an individual permit will
be required.
Many commenters objected to the
proposed NWPs. stating that these '
NWPs are contrary to the
Administration's Clean Water Action
Plan (CWAP). These commenters cited
one of the goals of the CWAP, which is.
to achieve a net gain of 100,000 acres of
wetlands per year by 2005.
This goal of the CWAP will be
achieved primarily through other
Federal programs, including the
Federal Register/Vol. 64. No. 1397Wednesday, July 21. 19997Notices
Conservation Reserve Program of the
U.S. Department of Agriculture (USDA),
the Corps environmental restoration
programs, the Department of Inferior's
Partners for Fish and Wildlife program.
and the North American Wetlands
Conservation Act. Non-federal programs
will also contribute to this goal. USDA's
programs are estimated to provide
125,000 to 150,000 acre| of wetlands per
year and the other Federal programs are
expected to provide an additional
40,000 to 60.000 acres of wetlands per
year toward this goal. The Corps
regulatory program is not expected to
contribute substantial additional
wetland acreage to this CWAP goal, but
the District Engineer may require
compensatory mitigation for activities
authorized by NWPs to offset losses of
waters of the United States and ensure
that the net adverse effects on the .
aquatic environment are'minimal. The
Corps does expect to continue its
documented programmatic no net loss
of wetlands approach to the Regulatory
Program. >
A number of commenters stated that
the proposed NWPs increase the
complexity of the NWP program,
thereby decreasing efficiency and
flexibility. Many commenters assert that
the proposed NWPs are too restrictive
and will increase the burden on the
regulated public because' of the
notification requirements and the
difficulty in interpreting [these NWPs. A
number of commenters stated that the
proposed NWPs will increase the
processing time and workload for
permit applicants and th& Corps.
We recognize that the proposed new
•and modified NWPs increase the -
complexity of the NWP program, but we
believe that this increase [in complexity
is necessary to protect th£ aquatic
environment while audiorizing
activities with minimal ajiverse effects
on the aquatic environment in an
efficient and effective manner. The
proposed new and modified NWPs will
be used to prioritize workload in non-
tidal waters. In high value waters,
additional protection will be provided
by regional conditioning pr suspending
or revoking certain NWPs if the use of
those NWPs would result; in more than
minimal adverse effects o'n the aquatic
environment. The NWPs jwill be used to
efficiently authorize activities in low
value waters. It is likely that most
project proponents will design their
projects to comply with the new and
modified NWPs rather than applying for
authorization through the individual
permit process. The proposed new and
modified NWPs, with the, three
proposed NWP general conditions, will
and the Corps workload. Prohibiting the
use of NWPs 21. 29. 39, 40, 42, 43, and
44 to authorize permanent, above-grade
fills in waters of the United States
within the 100-year floodplain will
result in large increases in the number
of individual permit applications
processed by the Corps.
Some commenters remarked that the
proposed NWPs have taken on elements
of the individual permit review process •
such as Section 404(b)(l) analysis,
mitigation sequencing, and no net loss.
One of these commenters recommended
replacing the proposed NWPs with
NWPs that authorize activities on a
. generic basis with specific limits but no
reporting requirements. One commenter
recommended retaining NWP 26, but.
modifying it to authorize activities
below headwaters, because it would be
simpler than the proposed NWPs.
While there are some similarities
between die individual permit review
process and the NWPs. there are also
important differences. General
Condition 19 requires that pennittees
avoid and minimize losses of waters of
the United States on the project site to
the maximum extent practicable and
states that the District Engineer can
require compensatory mitigation to
offset losses of waters of the United
States that result from the authorized
work to ensure that the adverse effects
on the aquatic environment are
minimal. This general condition is
similar, but not identical to the Section
404(b)(l) analysis required for Section
404 individual permits. It is important
to note that an off-site alternatives
analysis is not required for activities
authorized by NWPs, or any other
general permit. The Section 404(b)(l)
analysis required for individual permits
requires analysis of off-site alternatives
to determine if a practicable, less
environmentally damaging, alternative
exists to the proposed work on the
original site.
To replace NWP 26 with NWPs that
authorize activities on a generic: basis
would be contrary to Section 404 (e) of
the Clean Water Act Activities
authorized by general permits,
including NWPs, must be similar in
nature and result only in minimal
adverse effects on the aquatic
environment, individually or
cumulatively. Each of the proposed hew
and modified NWPs is activity-specific,
authorizing activities that are similar in
nature. Removing the reporting
requirements from the new and
modified NWPs would increase the
probability that the NWPs would be
used to authorize activities that result in
more than minimal adverse effects on
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Federal Register/ Vol. 64, No. 1397Wednesday, July 21, 1999/Notices
39259
engineers utilize the PCN process to
review proposed activities to determine
if they comply wid-t the terms and
conditions of the NVVPs, including the
statutory requirements of Section 404(e).
The only way the Corps can issue an
NVVP without PCN requirements would
be to lower die acreage limit to an
extremely low level to ensure dnat all
activities authorized by the NVVP would
result in minimal adverse effects on the
aquatic environment. This would
substantially reduce die utility of the
NWPs, result in unacceptable increases
in the number of individual permits for
.minor activities processed by die Corps,
and severely limit the effectiveness and .
utility of the NWP program.
Modifying NWP 2& to authorize
activities below headwaters would not
accomplish the intent of the new and
modified NVVPs because such a
modification of NWP 26 may not satisfy
die statutory requirements of Section
404(e). One of die criticisms of NWP 26
is that many people believe diat it does
not satisfy the "similar in nature"
requirement of Section 404(e) of die
Clean Water Act. We believe that die
activity-specific new and modified
NWPs clearly satisfy all of die
requirements of Section 404(e).
One commenter stated that the
proposed NWPs change a goal of die
Section 404 program from one of "no
net loss" of wetlands to one of "no net -•
loss of aquatic resource functions and
values." This commenter also said that
focusing on the effects of non-point
source discharges on water quality is .die
responsibility of die states, not die
Corps. A couple of commenters stated
that, in the July 1. 1998., Federal
Register notice, die Corps is
inappropriately expanding die
Administration's "no net loss" goal-for
wetlands to other types of waters of die
United States. These.commenters
believe that this expansion should be
subject to public comment instead of
including it with the proposed new and
modified NWPs. One of these
commenters objected to requiring
compensatory mitigation for losses of
non-wetland waters of die United States
and diat die Corps should focus only on
achieving die goal of "no.net loss" of
wedand acreage. This commenter also
objected to applying die "no net loss"
goal to a watershed basis instead of to
die nation as a whole. Some
commenters recommended diat die final
NWPs contain a statement diat the "no
net loss" principle is applicable only for
wetlands and diat compensatory
mitigation for losses of odier types of
waters of the United States should only
fae required Co ensure that the
authorized work, with compensatory
mitigation..results in minimal adverse
effects on the aquatic envirdr|'|hen'<:.
Another commenter recommended that
"no net loss" should be required'for the
NWP program.
Although one of the Administration's
five principles for Federal wetlands
policy is the goal of no net loss of
wetlands, it is important to consider die
functions and values of wetlands, as
well as odier aquatic resources. The
Section 404 program has always
regulated activities in all waters of the
United States, not just wetlands.
Streams and odier open water habitats
are extremely important components of
die aquatic environment, and are as
important as wetlands. The proposed
new and modified NWPs place a greater
emphasis on open waters to provide
those areas with the additional
protection that we believe is warranted.
It is also important to remember die
goals of the Clean Water Act and die
importance of Section 404 in meeting
those goals. Indeed, the Corps audiority
to regulate and protect open waters is
clearer widiin die statutory framework
than our audiority to regulate wetlands.
For instance, as a condition of a Section
404 permit, die Corps can require
vegetated buffers adjacent to streams to
offset adverse effects of die audiorized
activity on water quality.
Although certain statements in die
July 1. 1998, Federal Register notice
appear to expand die Administration's
,goal of no-overall net loss of the
Nation's remaining wetlands to other
waters of die United States, such as
streams, it is important to note that
wetlands are only one component of die
overall aquatic environment. By
requiring compensatory mitigation for
activities in odier aquatic areas, such as
streams, we are providing better overall
protection for die aquatic environment.
For die NWP program, die purpose of
compensatory mitigation is to ensure
diat die audiorized activities result in
minimal adverse effects on die aquatic
environment, individually or
cumulatively, not to achieve "no net
loss" of wetland acreage. Compensatory
mitigation may be required by district
engineers for losses of any type of water
of die United States, not just wedands.
Such compensatory mitigation
requirements do help contribute to die
"no net loss" of wedands goal, but in
some cases district engineers may
determine diat compensatory midgation
is unnecessary because die adverse
effects of die audiorized work are
minimal, widiout compensatory'
mitigation. It is important to note that
NWP compensatory mitigation
requirements are not driven by the "no
net loss" goal, but will help support diat
goal. For the NVVP program, the need for
compensatory mitigation is assessed on
a case-by-case basis and a watershed
basis, not a national basis, to ensure that
the NWPs authorize only those activities
that have minimal adverse effects on die
aquatic environment, individually or
cumulatively. The programmatic goal of
no net loss of wetlands is embodied in
several Corps guidance documents.
including former NVVP issuance
documents. The underlying principle is
diat die Corps will require
compensatory mitigation to offset
functions and values of aquatic
resources, including wetlands, diat are
lost as a result of permit actions. VVidiin
die NVVP program, die Corps will
require compensatory mitigation to
offset losses of functions and values of
aquatic resources, including wetlands,
to the extent diat die NWPs audiorize
activities with no more than minimal
adverse effects on the aquatic
environment. On a watershed basis, this
will normally result in no net Joss of.
any important aquatic functions, not
just wedands.
One commenter requested that die
Corps-regulations should be
consolidated as part of die proposed
changes to die NWPs, because die Corps
and die regulated public must consult
multiple Federal Register notices for
changes diat have occurred over die past
12 years since the last consolidated rule
was published. Anodier commenter
stated diat die Wedand Delineator
Certification Program (WDCP) should be
finalized to increase efficiency of die
Corps regulatory program. Several
commenters objected to the proposed
NWPs because they audiorize activities
diat are not water dependent.
The proposal to issue new and
modified NWPs and general conditions
does not constitute rulemaking. The
current NWP regulations were issued on
November 22, 1991, and die purpose of
die proposal published in die Federal
Register on July 1, 1998, is merely to
issue and modify NWPs in accordance^
with the regulations at 33 CFR Part 330.
The public can obtain a copy of die
consolidated Corps regulations at 33
CFR Parts 320 to 330 by purchasing a
copy of die appropriate Code of Federal
Regulations published annually by die
U.S. Government Printing Office or
obtain a copy dirough the Internet at
http://www.access.gpo.gov/nara/
index.html#cfr. The Corps has not
finalized the WDCP and has not
determined when die program will be
implemented.
On a case-by-case basis, NWP
activities are not subject to die
requirements foe a Section 404(b)(l)
alternatives analysis, including die •'v
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Federal Register.. Vol. 64, No. 1397 Wednesday. July 21. 1999/Notices
w.iror dependency test. General
Condition 19 of the NVVPs requires
permittees to avoid impacts to the
aquatic environment on-slte to the
extent practicable. However, no off-site
alternatives test is ever conducted for
any general permit activity, including
NWPs. In addition, the %vater
dependency test in the Section 404(b)(l)
Guidelines does not require that all
activities in waters of the United States
must be water dependent to fulfill its
basic project purpose (see 40 CFR Part
230.10 (a) (3)). The vast majority of all
activities permitted by the Corps are not
water dependent. NWPs can authorize
activities in special aquatic sites,
provided they result in minimal adverse"
effects on the aquatic environment,
individually or cumulatively, and
impacts to the aquatic environment
have been avoided on-site to the extent
practicable.
One commenter stated that the
acreage limits and PCN thresholds for
the NWPs should be more consistent.
Another commenter recommended that
the acreage limits for the NWPs should
be l/z or 1 acre and 200 linear feet of
stream bed. A third commenter
suggested an acreage limit of 'A acre for
all NWPs. One commenter
recommended that the Corps decrease
the acreage limits of the new NWPs
because permittees will reduce the
scope of work to comply with those
lower acreage limits, resulting in better
protection of the environment and
reducing wetland losses.
We disagree that the acreage limits for
the NVVPs should be the same, but we •
have made the PCN thresholds more •
consistent by changing the PCN
threshold to 1A acre for most of the new
and modified NWPs. For open and
flowing waters, the PCN requirements
will still vary among these NWPs. We
also disagree with imposing an upper
limit for linear feet of stream Impacts.
We have changed the prohibition
against filling greater than 500 linear
feet of stream under NWP 26 to a PCN
requirement. NWP 39 has a PCN
requirement for any discharges into
open waters, including streams. The
PCN requirement for Impacts to stream ,
beds will allow district engineers to
review those projects'to ensure that they
result only in minimal adverse effects
on the aquatic environment. Division
engineers can also regionally condition
NWPs to lower the acreage limits and
PCN thresholds. Although many project
proponents will design their projects to
comply with the terms and conditions
of the NWPs, there Is a lower limit
where such incentives no longer work
and it would be more cost effective for
individual permits, which may result in
even greater adverse effects on the
aquatic environment. WJith the proposed
new and modified NWPs, we believe
that we have developed'NWPs that
balance environmental protection with
development activities by providing the
districts with the ability, to use NWPs to
authorize most activities with minimal
individual or cumulative adverse effects
on the aquatic environment while
protecting high value arpas with
regional conditions. ,
Expiration of Nationwide Permit 26
In the July 1, 1998, Federal Register
notice, we proposed to change the
expiration date of NWP 26 from
December 13, 1998, to March 28, 1999. -
Many commenters objected to the
proposed extension of the expiration
date for NWP 26. A number of
commenters requested that the Corps
retain NWP 26 until the proposed new
and modified NWPs became effective.
Other commenters suggested that the
Corps change^he expiration date of
NWP 26 to February 11, |2002, to
continue to authorize projects that will
not be authorized by the[new and
modified NWPs. One commenter
expressed concern about confusion
resulting from different expiration dates
for the NWPs. rich,
Due to changes in the schedule and
process for developing ahd
implementing the new and-modified
NWPs to replace NWP 26, the Corps
announced in the October 14, 1998,
issue of the Federal Register the
extension of the expiration date of NWP
26 to September 15, 1999, to allow for
additional public comment on the new
and modified NWPs, gerieral conditions,
and regional conditions. ISince the
proposed new and modified NWPs and
regional conditions will riot become
effective before September 15, 1999, we
have decided to extend the expiration
date of NWP 26 to December 30, 1999,
or the effective date of the new ahd
modified NWPs, whichever occurs first,
to allow the continued use of NWP 26
until the new and modified NWPs
become, effective. Extending the
expiration date of NWP 26 until the
effective date of the new jand modified
NWPs is necessary to ensure fairness to
the regulated public fay continuing to
provide an NWP for activities with
minimal adverse effects in headwaters
and Isolated waters until the new
activity-specific NWPs btecome effective.
If the expiration date of NWP 26 is not
extended, most project proponents
would have to apply for Individual
permits, although some activities may
be audiorized by other NWPs or regional
with minimal adverse effects on the
aquatic environment, it would be-unfair
and unnecessarily burdensome on the
regulated public to require an
individual permit.
We will not extend the expiration
date of NWP 26 to February 11, 2002.
to authorize those activities that do not
qualify for the new and modified NWPs.
Such action would be contrary to our
intent, which is to replace NWP 26 with
activity-specific NWPs. However, the
Corps does not intend to allow a lapse
in time to occur between the effective
date of the new and modified NWPs and
the expiration date of NWP 26.
Activities that were previously
authorized by NWP 26, but could not be
authorized by the proposed n«w and
modified NWPs may be authorized by
individual permits, other NWPs, or
regional general permits.
In response to the October 14, 1998,
Federal Register notice, a large number
of commenters supported the extension
of the expiration date of NWP 26, but a
few commenters objected to the time
extension. Several commenters stated
that the Corps should not set a specific
expiration date for NWP 26, to ensure
that it is available until the new and
modified NWPs become effective. A ..
number of commenters said that the
October 14, 1998, Federal Register
notice was unclear as to whether the
expiration date for NWP 26 is extended
to September 15, 1999; it appeared to
diese 'commenters that the new
expiration date was published for public
comment. One of these commenters
requested that the Corps clearly state in
this Federal Register notice the new
expiration date for NWP 26. Two
commenters expressed Concern about
the expiration of NWP 26 authorizations
for projects which already have been
authorized by this NWP.
The expiration date for NWP1 26 was
changed to September 15, 1999, as
announced in the October 14, 1998,
Federal Register notice. The new
expiration date was not subject to public
comment in that notice. It is neicessary
to set a firm expiration date for1 NWP 26
to minimize confusion for the regulated
public during the process of developing
and implementing the new and
modified NWPs.
In accordance with 33 CFR Part
330.6(b), permittees widi a valf.d NWP
26 authorization have up to one year to
complete the authorized work, provided
they start the work or are under contract,
to do die work prior to the expiration of
the NWP. This provision of the NWP
regulations is not affected by die
proposed new and modified NWPs. Any
activities audiorized by NWP 26 that
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,139/Wednesday, July 21. 1999/Nodces
39261
contract prior to the expiration of NWP
26 must be reauthorized by another
NWP, a regional general permit, or nn
individual permit. Some of these
projects may be authorized by the
proposed new and modified NW.Ps,
provided those projects meet the terms
and conditions of those NWPs.
State, Tribal, and EPA Section 401
Certification of the NWPs
One commenter stated that the Corps
denial of an NWP authorization based _ ,
on the denial of the Section 401 water
quality certification (WQC) by States,
Tribes, or EPA prevents applicants from
pursuing an individual permit.
According to the commenter, applicants
are required to obtain an individual,
project-specific WQC. A number of
commenters objected to the Corps
practice of issuing provisional NWP
verifications where WQC has been
denied by the State, Tribe, or EPA. One
commenter stated that NWPs should not
be used in states where WQC has been
denied or the NWP activity is
determined to be inconsistent with die
State's Coastal Zone Management Act
(CZMA) plan. These commenters
believe that individual permits should
be required instead.
Denial of WQC for an NWP should
not be the sole reason for requiring
' individual permit review for activities
that would otherwise comply with the
terms and conditions of the NWP. A
denial of WQC by a State, Tribe, or EPA
for an NWP does not mean that the
activities authorized by that NWP will
result in more than minimal adverse
effects on the aquatic environment. The
WQC denial only indicates that die
NWP activity may not meet the water
quality standards for that State or Tribal
land in all situations. For specific
projects that meet the water quality
standards, the 401 agency can issue an
individual WQC or waive the WQC
requirement. If a specific project does
not meet the water quality standards
and die 401 agency denies WQC for that
project, then diat particular project
cannot be authorized by an NWP or an
individual permit unless the WQC is
later issued or waived.
Aldiough the Corps makes every effort
to work closely with States, Tribes, or
EPA to facilitate Section 401 water
quality certification for activities
authorized by NWPs, we have an
obligation to the regulated public to
provide timely NWP audiorizations for
projects that meet the terms and
conditions of the NWPs and result in
minimal adverse effects on the aquatic
environment, individually and
cumulatively. Therefore, if a project
qualifies for NWP authorization, we
should issue a provisional NWP
verification that is not valid until the
permittee obtains an individual WQC or
CZMA consistency determination or
waiver and a copy is sent to die Corps.
These provisional NWP verifications
indicate that the permittee cannot
commence work until die WQC or
CZMA determination is obtained or
waived.
The final WQC and CZMA
determination processes for die new and
...odified NWPs will begin widi the
publication of die Federal Register
notice announcing die issuance of the
NWPs. This Federal Register notice is
scheduled to be published on October
22, 1999. Concurrent widi that Federal
Register notice, Corps districts will
publish public notices announcing dieir
final Corps regional conditions for the
new and modified NWPs. The 401 and
CZMA agencies will have 60 days from
die date of that Federal Register notice
to make dieir WQC or CZMA
consistency determinations for diose
NWPs.
Regional Conditioning of the
Nationwide Permits
For die proposed new and modified
NWPs, the Corps is placing greater
emphasis on regional conditioning.
Regional conditioning is necessary to
ensure diat die NWPs authorize only
diose activities with minimal adverse
effects on die aquatic environment,
individually and cumulatively.
A number of commenters supported
die increased emphasis on regional
conditioning for the new and modified
NWPs. Some of these commenters
recognize die importance of evaluating
wedand-impacts on a regional and
watershed basis. One commenter stated
that since hydrologic, geologic, and
odier environmental characteristics vary
across the country, regional conditions
are necessary because an inflexible
regulatory approach to managing waters
of the United States is ineffective. This
commenter said that regional conditions
provide die flexibility to effectively
manage waters of the United States,
based on their particular environmental
. characteristics.
Many commenters expressed
opposition to the Increased emphasis on
regional conditions for the proposed
new and modified NWPs. Some "
commenters recommended that the
Corps eliminate regional conditioning
from die NWP program. Two
commenters said diat regional
conditions are unnecessary because the
NWPs can only authorize activities with
minimal adverse effects on the aquatic
environment. Another commenter stated
diat regional conditions are unnecessary
because district engineers can place
special conditions on NWP
audiorizations on a case-by-case basis.
One commenter stated that regional
conditions are unnecessary because
Federal regulations require that general
permits must be based on activities, not
types of waters. A couple of commenters .
objected to the approach presented in
die July 1, 1998, Federal Register
notice, because it treats regional
conditioning as die rule, not die
exception. One commenter stated diat
regional conditioning should not be
required of all districts, because some
districts may not need them.'
Regional conditioning of the proposed
new and modified NWPs is necessary to
ensure that diese NWPs authorize only
those activities that result in no more
dian minimal adverse effects on die
aquatic environment, a requirement of
Section 404 (e) of die Clean Water Act.
Regional conditions are necessary
because die national terms and
conditions of the NWPs are established
to authorize most activities diat result in
no more than minimal adverse effects
on die aquatic environment,
individually or cumulatively. For
particular regions of the country or
specific waterbodles where additional
safeguards are necessary to ensure diat
die NWPs satisfy die statutory
requirements for general permits, '
regional conditions are die appropriate
mechanism. Case-specific discretionary
audiority or special conditions cannot
act as surrogates for regional conditions
in many cases, especially for diose NWP
activities that do not require notification
to die District Engineer. For example,
regional conditions can restrict die use
of NWPs in high value waters for those--
activities diat do not require submission
of a PCN. Although the proposed NWPs
are activity-specific, regional conditions
are necessary to protect high value
waters to ensure that die NWPs do not
audiorize activities diat result in more
than minimal adverse effects on the
aquatic environment. We believe that all
districts have high value waters that
should be subject to regional
conditioning.
A substantial number of commenters
asserted that regional conditioning of
die NWPs greatly reduces die flexibility
of die NWPs, making them more
complicated, less useful, and too
restrictive. Many of diese commenters
stated diat regional conditioning of the
NWPs undermines the intent of Section
404 (e) of the Clean Water Act, by
making the NWPs more like Individual
permits. They also said diat regional
conditions would unnecessarily and
substantially increase burdens .on die
regulated public. A. number of
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Federal Register/Vol. 64. No. 139/Wednesday. July 21, 1999/Notices
csmmencers stated rhat regional
conditioning of the N'WPs offsets any
benefits in regulatory streamlining the
N'WPs are intended to provide. Several
commenters stated that regional
conditioning of the NVVPs will increase
she Corps workload, because there will
be more projects that cannot qualify for
NWP authorization.
Although regional conditions may
increase the complexity of the NWPs
and reduce their applicability, it is
important to remember that NVVPs are
optional permits, and if the project
proponent does not want to comply
with all of the terms and conditions of
an NWP, including regional conditions,
then he or she can apply for
authorization through the individual
permit process. Regional conditioning of
the NWPs is likely to increase the Corps •
workload, but we believe that such
increases are manageable. Division
engineers will review the regional
conditions proposed by Corps districts-
and ensure that any regional conditions
that are adopted will ensure that the
Corps workload will be prioritized to
increase protection of the aquatic
environment.
A number of commenters objected to .
the regional conditioning process and
wanted to reserve their comments on'"
the proposed new and modified NWPs
until they have had the opportunity to
review the proposed regional
conditions. Many commenters requested
that the Corps provide the regulated
community an opportunity to comment
on the regional conditions after the new
and modified NWPs are issued. Several
commenters suggested that the Corps
allow an additional 60 days to complete
the regional conditions to allow full :
public participation and comment
Some commenters recommended that
the Corps publish the regional
conditions In the Federal Register and
provide the public with an additional
opportunity to comment on the regional
conditions. A number of commenters .
stated that the process for developing
regional conditions is vague and
confusing and that clear guidance is
needed to assist districts in developing
regional conditions. One commenter
stated that the national NWP terms and
conditions should be established after
regional conditioning is completed.
We agree that the public should have
another opportunity to comment on the
complete NWP package, including the
NWPs. general conditions, definitions,
and Corps regional conditions. The
process for issuing the proposed new
and modified NWPs and Corps regional
conditions has been changed from the
process announced In the October 14,
Concurrent with todayfs Federal
Register notice, each Corps district will
issue a public notice announcing draft
regional conditions forj a 45-day
comment period. Therefore, the public
will have 45 days to provide comments
on both the draft new and modified
N'WPs and the draft Corps regional
conditions. We have provided Corps
divisions and districts iwi'th guidance
concerning the regional conditioning
process to facilitate the development
and implementation of regional
conditions. We do not jagree that the
national terms and limits for the NWPs
should be established after the Corps
regional conditions are' finalized
because the terms and [imlts of tHe
NWPs must be first established •
nationally, so that division engineers
can issue Corps regional conditions that
account for regional differences in
aquatic resource functions and values
and provide additional protection for
the aquatic environment. Regional
conditions make the NWPs more
restrictive where necessary to ensure
that those NWPs authorize only
activities with minimal adverse effects
on the aquatic environment.
Several commenters Said that division
and district engineers should be able to
use regional conditioning to make the
NWPs less restrictive, as well as more
restrictive. Two commenters asserted .
that the Corps regulations at 33 CFR Part
330.l(d) specifically state that division
and district engineers cjan condition or
further restrict NWPs only when they
have concerns for the aquatic
environment under the'Section
404(b)(l) Guidelines ortfbr any other
factor of the public interest. Another
commenter recommended that the
Corps institute a procedure whereby a
permit applicant could request Corps
headquarters review of a specific
regional condition for consistency with
general Corps regulatory policy. This
commenter expressed concern that the
regional conditioning process would
create arbitrary inconsistencies In the
implementation of the Corps regulatory
program between Corps districts. Two
commenters stated thafcCorps regional
conditions for the NWP|s should not
duplicate the states' authority under
Sections 4.01 and 402 o^ the Clean Water
Act. Another commenter expressed
concern that the regional conditions
would not completely protect waters
that need special protection and
recommended that the Corps conduct
advanced identification of those high
value areas. One commenter opposed
the principle that regional conditions
covered by Special Area Management
Plans (SAMPs).
Division and district engineers cannot
use regional conditioning to make the
NWPs less restrictive. Only (he Chief of
Engineers can modify an NWP to make
it less restrictive, if it is in the national
public interest to do so. Such a
modification must go through a public
notice and comment process. However,
if a Corps district believes that regional
general permits are necessary for
activities not authorized by NWPs. then
that district can develop and implement
regional general permits to authorize
those activities, as long as those regional
general permits comply with Section
404(e) of the Clean Water Act. We do
not believe that it is necessary to
establish a procedure for headquarters
review of regional conditions. Division
engineers will review proposed regional
conditions and approve only those
regional conditions that are necessary to
ensure that the NWPs authorize only
activities with minimal adverse effects
on the aquatic environment. We have
provided division and district offices
with guidance addressing regional
conditioning of NWPs. In general. Corps
regional conditions should, not
duplicate State Clean Water Act Section
401 or 402 authorities, but regional
conditions can address concerns for the
aquatic environment that may also be
related to water quality or non-point
sources of pollution. The public notice
process for regional conditions,
especially the process used for the new
and modified NWPs, can help the Corps
identify specific waterbodies that
should be subject to regional conditions.
The public had the opportunity, through
district public notices, to recommend
specific high value waterbodies that
should receive additional protection. In
some cases, it is appropriate to restrict
or prohibit the use of NWPs in areas
subject to SAMPs. In areas where
SAMPs are conducted, general permits
are often developed and issued to
provide Section 404 and Section 10
authorization for activities within the
area covered by the SAMP. Restricting
or prohibiting the use of NWPs within
the SAMP area is often necessary to
ensure that the SAMP is properly .. •
implemented.
Numerous commenters suggested that
regional conditions must be consistent
between Corps districts within the same
state. Another commenter
recommended that regional conditions
should be consistent between all Corps
districts. One commenter observed that
regional conditions being developed by
districts in initial public notices for the
new and modified NWPs are highly
variable and emphasized the need for
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39263
stronger national terms and conditions.
"This commenter believes that
inconsistencies between Corps districts
with regard to regional conditions will
be severe and unacceptable. One
commenter requested that for
companies operating throughout the
. country, regional conditions must be
consistent between districts.
There may be certain regions within
a particular state, such'as specific high
value waterbodies, that warrant regional
conditions that are not necessary in
other areas of that state. Consistency in
regional conditions across the country is
contrary to the purpose of the regional
conditioning process, which is to
consider local differences in aquatic
resource functions and values to ensure
that the NWPs do not authorize
activities with more than minimal
adverse effects on the aquatic
environment. Companies that work in
more than one district will have to
comply with the regional conditions
established in each district.
The draft regional conditions are
currently available for public review on
the Internet at the following home
pages:
North Atlantic Division
Baltimore District: http://
www.nab.usace.army.mil/permits/
regionalconditions.htm
New England District: http://
www.nae.usace.army.mil/environm/
regl.htm
New York District: http://
www.nan.usace.army.mil/business/
buslinks/regulat/index.htm#PNotices
Norfolk District: http://
www.nao.usace.army.mil/Regulatory/
PN/PN.html
"Philadelphia District: http://
www.nap.usace.army.mil/cenap-ojp/
regulatory/regulatory.htm
South Atlantic Division
Charleston District: http://
www.sac.usace.army.mil/pennits
Jacksonville District: http://
www.saj.usace.army.mil/permit/
index.html
Mobile District: http://
www .sam.usace.army.mil/sam/op/
reg/almscat.htm
Savannah District: http://
www.sas.usace.army.mil/regcond.htm
Wilmington District http://
www .saw.usace.army.mil/wetlands/
regtour.htm
Great Lakes and Ohio River Division
Buffalo District: http://
www.lrb.usace.anny.mil/orgs/offices/
form.htm
Chicago District: http://
vwnv.usacfi.ar7ny.mil/lrc/co-ry
lndex.htm
Detroit District:,.http://,
huron.lrl.usace.army.mil/fegifj'
dtwhome.html
Huntington District: http://www.lrh-
opr-nt.orh.usace.army.mil/permits/
Nationwide/nation.html
Louisville District: http://
www.lrl.usace.army.mil/orf/nw/
nw.html
Nashville District: http://
www.orn.usace.army.mil/cof/
notices.htm
Pittsburgh District: http://
www.LRP.usace.army.mil/OR-F/
permits.html
Mississippi Valley Division
Memphis District: http://
www.mvm.usace.army.mil/
regulatory/public-notices/
public notices.htm
New Orleans District: http://
www.mvn.usace.army.mil/ops/
regulatory/ Rock Island District: http:/
/www.mvr.usace.army.mil/
regulatory/natibnwidepermits.htm
St. Louis District: http://
www.mvs.usace.army.mil/permits/
pn.htm . - . • •
St. Paul District http://
www.mvp.usace.army.mil/regulatory/
regulatory.html
Vicksburg District http://
www.mvk.usaceianny.mil/odf/regs/
nwpconditions.htm
Southwestern Division
Fort Worth District: http://155.84.60.1/
current/currenthtm
Galveston District http://
www.swg.usace.army.mil/news.htm
Little Rock District: http://
www.swl.usace.anny.mil/regulatory/
ceal.html .
Tulsa District http://
www.swt.usace.anny.mil/whatishot/
whatishot.htm
Northwestern Division
Kansas City District: http://
www.nwk.usace.army.mil/conops/
regulatory.htm
Omaha District http://
www.nwo.usace.army.mil/htnil/op-r/
webpg.htm
Portland District http://
www.nwp.usace.army.mi1/op/g/.
regulatory.htm
Seattle District: http://
www.nws.usace.anny.mil/reg/reg.htm
Walla Walla District http://
www.nww.usace.army.mil/html/
offices/op/rf/cond2.htm
South Pacific Division
Albuquerque District http://
www.spa.usace.army.mil/reg/
localnot-htm
Los Angeles District: http://
www.spl.usace.army.mil/co/ '
coS.htmltfreg
Sacramento District: http://
www.spk.usace.army.mil/cespk-co/
regulatory/
San Francisco District: http://
www.spn.usace.army.mil/regulatory/
Pacific Ocean Division
Alaska District: http://
www.usace.army.mil/alaska/co/
conopsl.htm
-Honolulu District: http://
www.pod.usace.army .mil/news/
newsrel.html
Please note that the regional
conditions posted on these Internet
home pages are the current draft Corps
regional conditions, and that there are
likely to be changes to the Corps
regional conditions based on the
comments received in response to
district public.notices.
Compliance With Section 404(e) of the
Clean Water Act
A large number of commenters stated
that the proposed NWPs are in violation
of Section 404 (e) of the Clean Water Act
because they believe that the proposed
NWPs do. not authorize activities that
are similar in nature. Section 404 (e)
stipulates two statutory criteria for
general permits, including the NWPs:
(1) the activities authorized by a general
permit must be similar in nature, and (2)
those activities must result in minimal
adverse environmental effects,
individually or cumulatively. Many of
these commenters asserted that the
proposed NWPs 39, 42, and 44, as well
as additional activities authorized by
the proposed modifications of NWPs 12
and 40, violate the provisions of Section
404 (e) because they lack precise
descriptions of authorized activities and
the descriptions for these NWPs
included in the July 1, 1998, Federal
Register notice were too broad to be
similar in nature and environmental
impact. Many commenters stated that
the proposed new and modified NWPs
authorize activities with more than
minimal adverse effects on the aquatic
environment. Some commenters stated .
that the Corps has not adequately
assessed the individual and cumulative
adverse environmental effects of the
new and modified NWPs in accordance
with 33 CFR Part 320 and 40 CFR Part
230.
When considering whether or not an
NWP complies_with the "similar in
nature" criterion of Section 404 (e), it is
Important not to constrain this criterion
to a level that makes the NWP program
too complex to implement or makes a
particular NWP useless because i. :
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Federal Register • Vol. 64, No. 1397 Wednesday. July 21, 1999/Notices
wnuld authorize only a small proportion
of activities chat result in minimal
adverse effects on the aquatic
environment. Developing NWPs with
extremely precise and restrictive
language to satisfy the environmental
community's definition of the term
"similar in nature" would result in a /•
large number of NWPs that would make
the NVVP program excessively complex
and burdensome, widiout any added
protection to the aquatic environment. It
appears that most critics of the NWPs
believe that activities audiorized by an
NVVP must be Identical to each other to
satisfy Section 404(e). We believe that
the term "similar in nature" is intended
to have a more practical definition. The
word "similar" does not have the same
meaning as the word "identical." We
believe that the proposed new and
modified NWPs. which are activity-
specific, audiorize only activities that
are similar in nature in the broader, and
the more practical, definition of the
word "similar." We agree that proposed
NWP A may not have satisfied the
"similar in nature" requirement of
Section 404(e) because of the wide range
of authorized activities listed in the text
of the proposed NWP. Therefore, we
have proposed to modify the description
of activities audiorized by this NWP
(designated as NWP 39) to limit the
NWP to the construction of building
pads or foundations and attendant
features necessary for die operation and
use of the building constructed on the
pad or foundation. We believe that NWP
39 audiorlzes only activities that are ,
similar in nature (i.e., die construction
of buildings and features necessary for
dieir operation and use) and have
minimal adverse effects on the aquatic
environment. We believe that each of
die odier new and modified NWPs
proposed in this Federal Register notice
audiorize only activities that are similar
in nature.
During die development of these
NWPs, die Corps has complied widi all
applicable laws and regulations,
especially 33 CFR Parts 320 through 330
and 40 CFR Part 230. For diose new and
modified NWPs diat are issued, die
Corps will prepare Environmental
Assessments, Statements of Finding,
and, where applicable. Section 404(b)(l)
Compliance reviews. These documents
will address how these NWPs comply
widi the public interest review criteria
in 33 CFR part 320 and die Section
404(b)(l) Impact analysis criteria in 40
CFR part 230. To further ensure that the
NWPs audiorize only activities widi
minimal adverse effects on the aquatic
environment, die NWP general
conditions address specific concerns
relating co the NWP program, such as
compliance with the Endangered
Species Act and the National Historic
Preservation Act. Most NWPs require a
Section 401 water qualify certification
co ensure chat the authorized activities
meet State or Tribal wat^r quality
standards. In coastal arejas, most NWPs
require a coastal zone consistency
determination co comply with Section
307 of the Coastal Zone fvlanagement
Act. Activities chat require a permit
pursuant to Section 103 ;of the Marine
Protection, Research, and Sanctuaries
Act of 1972 are not authorized by
NWPs. :
In accordance with Section 404(e) of
the Clean Water Act, die, NWPs'cannot
authorize activities that (result in more
than minimal adverse effects on the
'aquatic environment, individually or
cumulatively. For those activities that
may result in more than minimal
adverse effects on the aquatic
environment, division or district
engineers will assert discretionary
authority (see 33 CFR 33p.4(e) and 33
CFR 330.5(c) and (d)). and notify the
applicant that the proposed activity is
not authorized by NWP. Therefore, the
NWPs comply with 40 CFR 230. l(c) and
230,7 (a) (3)i The factual determination '•
requirements of 40 CFR 230.11 will also
be addressed in the decision document
for each NWP. These decision
documents will include estimates of the
discharges anticipated to be audiorized
by the NWP that are required pursuant
to40CFR230.7(b)(3). j
General Condition 19 jjf the NWPs
satisfies the requirements of 40 CFR
230.10(d). This general condition
requires that permittees avoid and
minimize adverse effects on the aquatic
environment on-site to the maximum
extent practicable. If the Adverse effects
of the proposed work on;the aquatic
environment are more than minimal,
then the District Engineer will exercise
discretionary authority and the project
cannot be authorized by JNWP, unless it
is modified to reduce the adverse effects
and comply with all of the requirements
of die NWP: . .; . .
One commenter stated diat die Corps
. increased emphasis on regional
conditioning of die NWPs is ah
acknowledgment that activities
audiorized by NWP have die potential
of resultinig in more dian minimal ;
adverse effects on the aqjuatic
environment. This commenter objected
to die Finding of No Significant Impact
(FONSI) issued on June 23.1998, stating
that die FONSI is based 6n regional
conditions which have riot yet been
proposed. Several commenters objected
to die position that die adverse effects
on the aquatic environment audiorized
by che NWPs will be minimal because
they.auchorize only relacively small
losses of waters of the United States and
in many cases require compensatory
mitigation for those losses. These
commenters state that small wetlands
often have significant values (e.g.,
prairie potholes provide waterfowl
habitat) and that compensatory
mitigation is often ineffective in
replacing those values. They also stated
that chere is insufficient qualitative or
quantitative analysis concerning
environmental consequences of che new
and modified NWPs.
The NWPs authorize activities that,
under most circumstances, result in.
minimal adverse effects on the aquatic
environment. The Corps has always
acknowledged that some activities that
could potentially be authorized by
NWPs may have more than minimal
adverse effects on the aquatic
environment. The notification
requirements for NWPs allow district
engineers the opportunity to review
proposed activities that have the-
potential for exceeding the minimal
adverse effect direshold. The provisions
in the NWP regulations, specifically 33
CFR 330.4(e) and 33 CFR 330.5(c) and
(d), allow district and division engineers
to exercise discretionary authority when
specific activities result in more than
minimal adverse effects on the aquatic
environment and require an individual
permit for those activities. Discretionary
authority also allows division and
district engineers to place conditions on
NWPs to ensure that die NWPs
authorize only those activities that have
minimal adverse effects on the aquatic
environment. Division engineers can
also place regional conditions on the
NWPs. In specific high value
waterbodies or wetland types, regional
conditions can restrict the use of NWPs
in those waters by lowering acreage
limits or notification thresholds.
Regional conditions .can also prohibit
the use of NWPs in high value waters.
District engineers can place case-
specific special conditions on NWP
authorizations. The FONSI issued on
June 23, 1998, merely reiterates die fact
that the regional conditioning process
helps ensure diat die NWPs audiorize
only those activities diat result in
minimal adverse effects on the aquatic
environment.
We recognize that there has been, and
continues to be, substantial interest
among die public regarding die
potential environmental effects
associated widi the implementation of
the NWP program. With the last
reissuance of the NWPs in December
1996, we reemphasized our
commitment to improve data collection
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Federal Register • Vol. 64. No. 139/Wednesday. July 2 1. .1999 /Notices
39265
,ind monitoring efforts associated with
the NWP program, 'and NWP 26 in
particular. In many instances, these
efforts have already provided critical
information on the use of the NWPs,
overall acreage impacts, affected
resource types, the geographic location
of the activities, and the type of
mitigation provided. This information is
critical in our efforts to make well-
informed permitting and policy-
decisions regarding the continued role
of the NWP program and to ensure that
the program continues to authorize only
those activities with minimal individual
and'cumulative effects.
Compliance With the National
Environmental Policy Act
Many commenters believe that the
proposed new and modified NWPs do
not comply with the National
Environmental Policy Act (NEPA). They
disagree with the Corps determination
that the NWPs do not constitute a major
Federal action that significantly affects
the quality of the human environment.
These commenters assert that the new
and modified NWPs will expand the
direct, indirect, and cumulative adverse
effects of the NWPs, because these
NWPs are applicable in a broader
geographic range of waters of the United
States than NWP 26.
Many commenters addressed the
preliminary environmental assessments
(EAs) for the new and modified NWPs
and the FONSI issued on June 23, 1998.
Several commenters believe that the
Corps is making a circular argument
when it states that the NWPs do not
constitute a major Federal action •
because, by definition, the NWPs
authorize only activities with minimal
individual or cumulative adverse effects
on the aquatic environment. They
believe this conclusion is based on the
Definition of a general permit, not on
data from authorized impacts. They
suggest that the Corps consider the loss
of wetlands over an extended time
period to evaluate the actual adverse
effects on the aquatic environment in
specific terms, not generalities. One
commenter concurred, with the Corps
determination that the NWPs do not
require an Environmental Impact
Statement (EIS). One commenter stated
.that an EIS should be required prior to
implementing the new and modified
NWPs and the EIS must include an
economic analysis of the economic
effects of the NWPs. Another
commenter said that to comply with
NEPA, the Corps must evaluate both
wetlands and upland impacts for
activities authorized by NWPs.
NEPA requires Federal agencies to
prepare an EIS only for major Federal
actions that have a significant impact on
the qualicy.pfj.the human .environment.
Even though we-have committed to
prepare a Programmatic Environmental
Impact Statement (PEIS) for the NWP
program, we continue to maintain our
position that the NWP program does not
constitute a major Federal action
significantly affecting the human
environment. Therefore, the prepantton
of an EIS is not required by NEPA. The
NWPs authorize only those activities
that have minimal adverse
environmental.effects on the aquatic
environment, individually or
cumulatively, which is a much lower
threshold than the threshold for
requiring an EIS.-This is not a circular
argument. To ensure that the NWPs
authorize only those activities with
minimal adverse effects on the aquatic
environment, individually or
cumulatively, there are several
safeguards in the NWP program: (1) PCN
requirements to allow district engineers
to review certain proposed NWP
activities on a case-by-case basis; (2)
compensatory mitigation requirements
for most activities that require a PCN;
(3) the ability to impose case-specific
.conditions on an NWP authorization to
protect the aquatic environment; (4) the
ability to impose regional conditions on
an NWP to protect high value waters; (5)
the requirement for water quality
certification for activities involving a
discharge of dredged or fill material Into
waters of the United States; (6) the
requirement for Coastal Zone
Management Act consistency
determination in coastal areas; and (7)
provisions for discretionary authority to
require an individual permit review if
the proposed impacts are more than
minimal.
The FONSI was issued on June 23,
1998. Copies of the FONSI are available
at the office of the Chief of Engineers,
at each District office, and on the Corps
regulatory home page at http://
www.usace.army.mil/inet/functions/
cw/cecwo/reg/. The EAs for each of the
new and modified NWPs will be
available on the Corps regulatory home
page when the issuance of these NWPs
is announced in a future Federal
Register notice. When regional
conditions are added to an NWP, a
supplemental decision document
containing local analyses will be issued
by the Division Engineer. The
supplemental decision documents for a
district's regional conditions will be
available at.that district.
For the Corps regulatory program,
including the NWP program, the
procedures for complying with NEPA
are contained in 33 CFR Part 325,
Appendix B. The scope of analysis for
NEPA compliance is thoroughly
discussed in Appendix B. including the
factors to be considered when
determining the extent of Federal
control and responsibility for a
particular project. In most cases, upland
impacts are not part of Federal control
and responsibility, and should not be'
included in a general analysis of NEPA
compliance for the NWP program.
Many commenters stated that, while
they support the Corps intent to prepare
a PEIS for the NWP program, the PEIS
should be completed prior to the
issuance of the new and modified
NWPs. Several commenters remarked
that the PEIS should have been
completed prior to this reissuance of.the
NWPs in 1996/Some commenters stated
that the PEIS should include a
comprehensive and accurate accounting
of the cumulative impacts authorized by
the NWPs in the past. One commenter
recommended that the Corps allow full
public participation in the preparation
of the PEIS through regional meetings.
This commenter also suggested that the
PEIS address the following alternatives:
no action, reduction in scope of
authorized activities, reduction in
acreage impact limits, and alternative
programmatic approaches. One
commenter agreed that a PEIS is not
required and stated that while the Corps
is not legally prevented from producing
a PEIS, even if it is not required, the "
PEIS could have significant effects on
the Corps workload and the Corps
should not devote resources to the
preparation of the PEIS at the expense
of its other activities.
We have committed to demonstrating '
that the NWP program authorizes only
those activities with minimal individual
and cumulative environmental effects.
Consistent with this commitment, the
Corps will prepare, through the Institute
for Water Resources, a PEIS for the
entire NWP program. While a PEIS is
not required for the same reasons that
an EIS is not required, the PEIS will
provide the Corps with a comprehensive
mechanism to review the effects of the
NWP program on the human
environment. The PEIS will be
conducted with the participation of
other Federal agencies, States, Tribes,
and the public. The Corps is scheduled
to initiate the PEIS by mid-1999 and
complete the PEIS by December 2000.
Therefore, the PEIS should be
completed prior to the next scheduled
reissuance of the NWPs in December
2001. Since the PEIS is not required, we
will not delay the issuance of the new
and modified NWPs. The PEIS will fully
comply with NEPA requirements,
including alternatives analyses. There
have been meetings to provide other
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Federal Register,'Vol. 64, N'o. 1397 Wednesday. July 21, 1999/Nocices
Federal agencies, states, Tribes, and the
public with opportunities to participate
in the scoping of the PEIS. These
scoping meetings were,announced in a
Federal Register notice published on
March 22. 1999 (64 FR 13782).
Some commenters said diat the
preliminary EAs do not comply with
NEPA because they do not adequately
address alternatives that are necessary
to support the final decision. They
believe that failure to consider a "no
action" alternative is inconsistent with
NEPA and that an alternatives analysis
in the EA cannot be replaced with a
discussion of the case-specific flexibility
provided by the NWP program. Another
commenter stated that if the EAs are
properly prepared, they would not
support the FONSI determination.
In compliance with NEPA,
environmental documentation will be
prepared for each new and modified
NWP. Each document will include an
EA, a FONSI, and, where relevant, a
preliminary Section 404(b)(l)
Guidelines compliance review. Each EA
will contain an alternatives analysis for
the NWP, including a discussion of the
"no action" alternative. The alternatives
analysis will also consider national
modification alternatives, regional
modification alternatives, and case-
specific on-site alternatives for the
NWP. After the issuance of the new and
modified NWPs, copies of these
documents will be available for
Inspection at the office of the Chief of
Engineers, at each Corps district office,
and at the Corps regulatory home page
at the Internet address cited at the
beginning of this Federal Register
notice.
Several commenters stated that the
preliminary EAs for the proposed new
and modified NWPs are inadequate
because they fail to provide an
ecological rationale for the proposed
acreage limits. These commenters .
believe that the assessment of
Individual and cumulative adverse
effects relies entirely on conditions that
address secondary impacts, future
regional conditions, and the discretion
of the District Engineer in the PCN
process. Another commenter
recommended that the Corps revise the
EAs once the regional conditions are
develpped and suggested that the Corps
place the revised EAs, with the regional
conditions, on public notice in the
Federal Register to provide an
opportunity for public comment.
Where appropriate, each EA will
generally consider different acreage
limits for each NWP. Acreage limits for
each NWP are established to allow the
NWPs to authorize most activities that
al adverse effects on the
aquatic environment, individually or
cumulatively. The minimal adverse
effects determination is based on
general consideration of the effects of
the authorized activities on the
physical, chemical, anql biological
characteristics of the aq'uatic
environment, as well as human use
characteristics. Division engineers can
regionally condition an1 NWP to
decrease the acreage lirpit established
nationally for that NWP;, if such a
regional condition is necessary to
ensure that the NWP authorizes only
activities with minimal adverse effects
on the aquatic environment. When
division engineers approve regional
conditions for an NWP; they will issue
a decision document that will
supplement the national EA for that
NWP. On a case-by-case basis, it is the
responsibility of district engineers to
assess and monitor the adverse effects
on the aquatic environment (hat result
from activities audioriz'ed by NWPs.
District engineers review PCNs to assess
the foreseeable adverseieffects caused by
the authorized work. The final EAs for
the new and modified NWPs will not be
subject to public comment, since they
are final decision documents.
Scope of the New Nationwide Permits
In the July 1, 1998, Federal Register
notice, we requested comments on the
scope of applicable waters for the new
and modified NWPs. In that Federal
Register notice, we listed five categories
of applicable waters for the proposed
NWPs. The categories of waters
included: (1) all waters;of the JUnited '-"
States; (2) non-tidal waters; (3) non-tidal
waters, excluding non-tidal wetlands
contiguous to tidal waters; (4) non-
Section 10 waters; and (5) non-Section
10 waters, excluding wetlands
contiguous to Section llQ waters.
Most of the commenters objected to
the proposed NWPs because they
authorize activities in most non-tidal
waters of the United States, including
non-tidal wetlands adjacent, but not
contiguous, to tidal waters. On the odier
hand, some commenters supported die
proposed NWPs because the distinction
between non-tidal waters and
headwaters and isolated waters was
dropped from die NWP program. NWP
26 authorizes activities only in isolated
waters and headwaters! A number of
commenters expressed ^concern that die
increased scope of applicable waters for
the new NWPs provides less protection
to the aquatic environment because
many of die waters subject to die new
NWPs are important foi: a variety of fish
and wildlife and provide important
functions and values such as flood
control and improvement of water
quality. One of these commenters stated
that the increased scope of waters
would harm the ecological integrity of
watersheds. One commenter remarked
that the scope of waters for the new
NWPs implies that non-tidal waters are
less important than tidal waters.
To increase protection of the aquatic
environment, we have modified the
applicable waters for the some of the
proposed new and modified NWPs (i.e.,
NWPs 39, 40, 41. 42, and 43) to prohibit
the use of these NWPs in non-tidal
wetlands adjacent to tidal waters. WUh
the proposed NWPs, the Corpis is
increasing protection of open and
.flowing waters, and not focusing only"
on wetlands, especially low-value
wetlands. This approach will enhance
protection of the-aquatic environment.
The proposed NWPs" were developed
and conditioned to better control and
limit adverse effects on die aquatic
environment. We are proposing to
modify two NWP general conditions to
provide greater protection for.water
quality and maintenance of v/ater flows
(General Conditions 9 and 21,
respectively). We are also proposing
three new NWP general conditions to
protect die aquatic environment
(General Conditions 25, 26, and 27) by
restricting die use of NWPs in
designated critical resource waters,
impaired waters, and waters of the
United States within 100-year
floodplains. The proposed general
conditions are discussed elsewhere in
this Federal Register notice. In addition,
Corps districts and divisions will
regionally condition these NWPs to
ensure diat diey autiiorize only
activities with minimal adverse effects
on the aquatic environment.
NWPs 39. 41, 42, and 43 do not
audiorize activities in non-ticlal
wedands adjacent to.tidal waters. High
value isolated waters identified by
districts will be protected through the
regional conditioning of die NWPs.
Case-specific special conditions and
discretionary authority will also be used
to protect high value waters when
district engineers review PCNs.
Many commenters stated that the five
categories of waters of the United States
applicable to die new NWPs make die
NWP program too complex. One-
commenter remarked diat identifying
diese waters would not result in a
workload savings to the Corps because
it will require additional field review.
One commenter recommended that the
Corps reduce the number of applicable
waters from five to three, specifically
"all waters," "Section 10 waters," and
"non-tidal waters." Another commenter
believes that these categories are
arbitrary and requested diat the Corps
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39267
provide justification for these categories
•~( waters. A few commenters asked why
"idjacent waters," as used in die
context of NWP 26, was dropped from
the NWP program. One commenter
suggested that NWPs 39, 41, 42, 43, and
44 should be modified to authorize
activities only in isolated waters and
headwaters.
We recognize that the five categories
of waters discussed in the July 1, 1998,
Federal Register notice can be
considered by some members of the
regulated public as unnecessarily
complex, so we have simplified the
applicable waters for the new NWPs. •
Most of the new NWPs audiorize
discharges of dredged or fill material
into non-tidal waters of the United -
States, excluding non-tidal wetlands
adjacent to tidal waters. The applicable
waters for each proposed new and
modified NWP are discussed in detail in-
die preamble discussions of those
NWPs.
One commenter objected to die focus
on contiguous waters and stated that
subsurface connections between waters
of die United States are as important as
surface connections. Two commenters
requested diat the Corps specify that for
non-contiguous, isolated waters, an
interstate or foreign commerce
connection must be established for these
areas to be considered waters of the
United States. One commenter objected
to portions of the July 1, 1998, Federal
Register notice that stated that district
engineers can exercise discretionary
authority when areas with "significant
social or ecological functions and
values" may be adversely affected by
die work, because the commenter
believes that die Clean Water Act does
not provide regulatory authority for
areas with significant social values.
Anodier commenter objected to the use
. of die term "ecological functions,"
stating diat it is not a term used to
define the scope of authority.
We recognize that subsurface
connections between waters of die
United States are important, but die
Section 404 program focuses on surface
waters. It is not necessary for the Corps
to specify dial isolated waters require an
interstate or foreign commerce
connection for these waters to be
considered waters of the United States,
because diat requirement can be found
in 33 CFR Part 328. Discretionary
audiority can be exercised by division
and district engineers where there are
sufficient concerns for die aquatic
environment under the Section
404(b)(l) guidelines or any odier factor
of the public interest. Public interest
factors include Consideration of waters
with "significant-sqcial.or ecological
functions Snd'felues." "-• .-yfext-iR
A couple of commenters stated diat
die classification of perennial,
intermittent, and ephemeral streams
will establish a ranking system,
implying diat perennial streams are
more valuable than ephemeral streams.
These commenters believe that the
majority of streams in the nordiwestem.
northeastern, and soudiem United
States will receive more protection dian'
dipse in die western and soudiwestern
United States.
We are classifying streams as
perennial, intermittent, and ephemeral
for the purposes of die NWPs to
evaluate or restrict adverse effects to
flowing watecs^more effectively. For
example, in NWP 43 we are proposing
to prohibit the construction of new
stormwater management facilities in
perennial streams. Damming perennial
streams to construct stormwater
management ponds often has more dian
minimal adverse effects on die aquatic
environment, particularly for aquatic
organisms such as fish and
invertebrates. Dams in perennial
streams may block fish passage to
spawning areas and disrupt food webs
in streams, reducing the productivity of
streams. In many areas, it is more
effective to construct stormwater
management ponds in ephemeral and
low-value intermittent streams, because
these facilities, if properly designed,
constructed, and maintained, will
substantially reduce adverse effects of
nearby development on local water
quality and water flows. In areas where
ephemeral streams are valuable aquatic
resources, division and district
engineers can regionally condition die
NWPs to restrict dieir use in ephemeral
streams or require PCNs for activities in
ephemeral streams.
Indexing of the Nationwide Permits To
Determine Acreage Limits
In the July 1, 1998, Federal Register
notice, we requested comments on die
use of indexing to determine acreage
limits for NWPs 39 and 40, as well as
the proposed NWP B for master planned
developments. Most of the commenters
who addressed the use of indexing to
determine acreage limits for certain
NWPs were opposed to the indexing
schemes proposed in the July 1,1998, ,
Federal Register notice. A majority of
commenters stated diat the proposed
indexes were too confusing, not
scientifically based, burdensome on the
regulated public, and would result in a
significant workload increase for the
Corps. These commenters believe that
indexing acreage limits makes the NWPs
less efficient and increases the amount
of time spent reviewing activities that
have minimal adverse effects on the
aquatic environment. Most of these
commenters requested that die Corps
continue to use simple acreage limits for
the NWPs. Some commenters
recommended basing the indexed
acreage limit on a percentage of parcel
size, whereas odier commenters
suggested basing die indexed acreage
limit on a percentage of die total
wetland acreage within die parcel, not
the total size of the parcel.
Some commenters believe the
proposed indexes for these NWPs were.
too restrictive and diat both the
maximum acreage loss and PCN
thresno Ids under the NWP should be
higher. Other cqmmenters said diat die
proposed indexes and PCN thresholds
would authorize activities widi more
than minimal adverse effects on die •
aquatic environment and recommended
reducing die acreage limits and PCN
diresholds. Several commenters believe
that using indexing to determine acreage
limits will allow NWPs to audiorize
activities that result in more than
minimal cumulative adverse effects by
not addressing avoidance and •
minimization. A number of commenters
were confused as to how the proposed
indexes would be interpreted or •
utilized, particularly where there was
overlap between parcel size ranges and
acreage limits. For example, die
proposed acreage, limit index for NWP A
had an acreage limit of l/2 acre for parcel
sizes of 5 to 10 acres and an acreage
limit of 1 acre for parcel sizes' of 10 to
15 acres. These commenters were
uncertain as to whether die acreage
limit for a project constructed on a 10-
acre parcel would be Va acre or 1 acre.
We believe that indexing acreage
limits based on project size or project
area is necessary for certain NWPs (i.e.,
NWPs 39 and 40) to ensure that diose
NWPs authorize only activities diat
have minimal adverse effects on die
aquatic environment. Instead of using
die indexing schemes proposed in the
July 1, 1998, Federal Register notice, we
are proposing indexes based on simple
algebraic formulas, using a percentage of
project area or farm tract size. The
proposed indexed acreage limit for NWP
39 has a minimum acreage limit of V*
acre for a single and complete project,
widi the indexed acreage limit
increasing by 2% of die project area to
a maximum acreage limit of 3 acres. For
NWP 40 activities in playas, prairie
podioles, and vernal pools, we are
proposing a similar indexing formula,
with a base acreage limit of Vio acre and
a different percentage of farm tract size
(i.e., 1% of farm tract size). For NWP 40
activities in odier types of non-tidal
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Federal Register.'Vol. 64, No. 139/Wednesday, July 21. 1999/Notices
wetlands to increase agricultural
production, we are proposing a simple
acreage limit of 2 acres, since the
Average farm tract size in the United
States is 275 acres, which means chat
most agricultural producers would
qualify for the maximum acreage limit
.even if an indexed acreage limit would
be used.
The algebraic indexing scheme will be
easier to use and less confusing than the
indexes proposed in July I, 1998.
Federal Register notice. Indexing based
on the percentage of project size will
avoid the confusion resulting from
overlap of parcel size ranges. For
example, in the indexing scheme
proposed for NWP A in die July 1. 1998,
Federal Register notice (see 63 FR
36067), a 15-acre parcel would be
subject to either a,l or 2 acre limit. The
algebraic Index avoids this overlap in
acreage limits. We beljteve, that the
indexes used for NWPs ^9 and 40 will
allow the authorization of most
activities that result in minimal adverse
ejects on the aquatic environment,
individually or cumulatively. Division
engineers can regionally condition NWP
39 to make the indexed acreage limit
more restrictive, either by reducing the
minimum acreage limit, percentage of
project area or farm tract size, or
maximum acreage limit. For example,
NWP 39 can be regionally conditioned
to reduce the minimum acreage limit
from "A acre to Vio acre or the
percentage of project area from 2% to
1%. However, paragraph (a) of NWP 40
cannot be regionally conditioned by
division engineers, to ensure consistent
implementation of this part of NWP 40
in cooperation with NRCS throughout
the country. An activity that exceeds the
indexed acreage limit will require
authorization by another NWP, a
regional general permit, or an individual
permit. The use of an indexed acreage
limit does not preclude project
proponents from complying with
General Condition 19. which requires
on-slte avoidance and minimization of
activities In waters of the United States
to the maximum extent practicable. If
the District Engineer determines diat the
proposed work will result in more than
minimal adverse effects on the aquatic
environment, then discretionary
authority will be exercised and the
applicant will be notified that another
form of Corps authorization, such as an
individual permit or regional general
permit, is required.
Another source of confusion for NWP
applicants cited by commenters was the
application of PCN thresholds with an
indexed acreage limit For example, the
proposed Index for NWP 39 had an
" l/< acre for activities on
parcels less than five acres in size. The
proposed PCN threshold for this NWP
was Vj acre. Some comifienters thought
that this implied that losses of greater
than 'A acre of waters of the United
States would require notification to the
Corps, but this requirement was not
specifically stated in the NWP.
For NWP 39, the PCNJ threshold has
been changed to 'A acre! Since this .
threshold is the same as; the minimum
acreage limit of 'A acre ;n the Indexed
acreage limit, the PCN requirements for
these NWPs should not be confusing.
District engineers will not receive PCNs
for agricultural activities; authorized
only by paragraph (a) of NWP 40.
Instead, they will receivle
postconstruction reports' from
landowners that describe the authorized
work. • ! .
Workload Implications of the New
NWPs ' j
A number of commenters stated that
the complexity of the proposed NWPs
will increase the Corps workload for the
NWP program. Some of these
commenters said that the current
staffing level of the Corps is inadequate
to implement the proposed new and
modified NWPs. One cojmmenter stated
that utilization of the NWPs as a tool to
prioritize workload is arjt abdication of
the Corps responsibility! This
commenter said that the: Corps
regulatory program can be made.more
efficient through other means, such as
improved technology, trie use of private
delineatprs, permit fees,;and increased
coordination. !
For many years, gener|al permits, _
including NWPs, have bieen used by the
Corps to manage its workload by
audiorizing activities with minimal
adverse effects on the aquatic
environment that would otherwise be
subject to die more resource-intensive
individual permit process. The Corps
does not have die resources to review
each activity that requires a Section 404
and/or Section 10 permit through the
individual permit process. Requiring
individual permits for ail these
activities would also create unnecessary
burdens on the regulatecl public. Most
activities authorized byjthe Corps
regulatory program are authorized by
general permits. General permits,
including NWPs, authorize activities
that would usually be authorized
through the individual permit process
with little or no change Jin the scope of
work. It is inefficient to [require an
individual permit for activities that have
minimal adverse effects [on the aquatic
environment that the Corps could
authorize more effectively dirough the
leneral permit process. General permits
also benefit the aquatic environment
because they provide incentives for
landowners and developers to design.
their projects to reduce adverse effects
on the aquatic environment to qualify
for the expedited permit process
provided by general permits.
The scope of applicable waters for the
proposed NWPs and the proposed new
NWP general conditions, especially
General Condition 27, will cause
substantial increases in the Corps
workload by requiring individual
permits for many activities in
designated critical resource waters!
impaired waters, and waters of the
United States within the 100-year
' floodplain. The proposed prohibition
against using NWPs to authorize certain
activities resulting in permanent, above-
grade fills in waters of the United States
within the 100-year floodplain is
expected to result Ln two to three
Uiousand more individual permits per
year added to the Corps workload.
The increase in die Corps workload
caused by the proposed NWP general
and regional conditions will require dial
most Corps districts reprioritize their
activities. Corps districts will focus their
efforts on diose actions tiiat provide die
most value'added to die environment
and the public. Inevitably, the
substantial increase in workload will
result in an increase in permit
evaluation time for most permit reviews.
At this point, we cannot quantify these
impacts.
Preconstruction Notification
A few cpmmenters recommended that
die Corps extend die review period for
preconstruction notifications (PCNs)
from 30 days to 45 or 60 days, due to
the increased complexity of the new and
modified NWPs. One commenter
expressed support for the 30-day review
period for PCNs. Several commenters
believe that the PCN diresholds and
information requirements are confusing
and that the PCN thresholds should be
lower for all .activities, such as 1A acre
of waters or 100 linear feet of stream
bed.
We recognize that the proposed NWPs
are more complex than NWP 26 and diat
a longer PCN period is necessary to
effectively review notifications. We are
proposing to modify the preconstruction
notification process for the NWPs to
provide more time for district engineers
to review PCNs. District engineers will
have 30 days from the date of receipt of
a PCN to determine if it is complete. If
the PCN is not complete, the District
Engineer can make only one request for
additional information from die
applicant. This request must be made
during the Initial 30-day period. District
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39269
engineers cannot make additional
requests for more information to
evaluate the PCN. If the applicant has
not provided all of die requested
information to the District Engineer,
then the PCN is not considered
complete and the PCN review process
will not start until the applicant has
provided all of the requested
information to the District Engineer.
Upon receipt of a complete PCN, the
District Engineer-has 45 days to
determine if the proposed work
qualifies for NWP authorization, with or
without special conditions, or exercise
discretionary audiority to require an
individual permit. If die District • -
Engineer does not notify die applicant
of the outcome of die PCN review prior
to die end of the 45-day period, dien die
proposed work is audiorized by NWP •
and die permittee can begin work
provided all of die requisite State and
local authorizations, such as WQC, have
been obtained. We are proposing to
modify General Condition 13 in
accordance widi die proposed changes
to the notification process discussed
above.
The Corps has limited the amount of
information required to be submitted
with a PCN to the minimum necessary
to effectively evaluate die potential
adverse effects of die proposed work on
• the aquatic environment and determine
if die project complies widi the terms
and conditions of die NWPs. By
providing die required information
when the PCN is first submitted to die
Corps, the applicant will minimize
delays in processing. The Corps has also
changed die PCN direshold for many of
die proposed NWPs from Vb acre to .'A
. acre to provide more consistency. The
proposed PCN thresholds for stream bed
impacts are similar to die PCN
thresholds proposed in die July 1", 1998,
Federal Register notice.
Two commenters recommended that
PCNs should be required for all
activities audiorized by the new NWPs.
These commenters stated diat 15 days is
an inadequate lengdi of time for agency
technical review of site conditions,
mitigation plans, and monitoring plans.
for activities authorized by Uiese NWPs.
These commenters also believe diat the
lack of agency coordination for PCNs
violates die Endangered Species Act
(ESA), National Environmental Policy
Act (NEPA), and the Fish and Wildlife
Coordination Act (FWCA). Another
commenter stated that the PCN process
is illegal.
Requiring PCNs for all activities
authorized by NWPs is unnecessary and
would substantially reduce the ..
effectiveness of the NWPs. PCN
diresholds are established so diat only
activities that coujd.potentially result in
more thanimir|lrnal adverseftffegts on
the aquatic environment require"
notification to the Corps. In addition,
the Corps does not have the resources to
review PCNs for every activity
authorized by NWPs. We are proposing
to modify General Condition 13 to
provide more time for Federal and State
resource' agencies to review PCNs. These
agencies will have 10 calendar days to '
notify the District Engineer that they-
Intend to provide substantive, site-
specific comments. If diese agencies
provide such notification, the District
Engineer will wait an additional 15
calendar days before making a decision
on die PCN. Twenty-five days is an
adequate period of time for the Federal
and State resource agencies to review
PCNs. The intent of agency coordination
is to obtain site-specific, substantive
comments from these agencies within
their area of expertise. Detailed . -
mitigation and monitoring plans are not
required for die PCN. The applicant
need only propose compensatory
mitigation diat will offset losses of
waters of the United States. The Federal
and State resource agencies can
comment on die appropriateness of die
proposed compensatory mitigation. The
District Engineer will determine if die
proposed compensatory mitigation is
appropriate and incorporate die
requirements for compensatory
mitigation, including detailed plans and
monitoring requirements, into die NWP
•authorization as special conditions.
The PCN process does not violate
ESA, NEPA, or FWCA. General
Condition 11 ensures diat activities
authorized by NWPs comply with ESA.
There is no provision in NEPA requiring
the Corps to coordinate activities
audiorized by general permits with
other Federal, State, or local agencies.
The NWP issuance process satisfies the
coordination requirements of FWCA.
The PCN process is not illegal; it is
merely a mechanism to ensure diat the
NWPs do not audiorize activities widi
more than minimal adverse effects on
die aquatic environment, individually
or cumulatively.
Two commenters suggested that the
avoidance and minimization statement
required for NWPs 39 and 43 should be
required for all NWP activities diat
require a PCN. Another commenter
recommended diat die minimization
and avoidance statement should be
limited to one page.
We disagree that die avoidance and
minimization statement is necessary for
all NWP activities that require a PCN.
General condition 19 requires diat
permittees avoid and minimize impacts
to waters of the United States on-site to
the maximum extent practicable. In .
addition, many activities authorized by
NWP must occur in a certain location.
For example, repair and maintenance
activities authorized by NWP 3 must be
in the same location as the existing
structure or fill. Bank stabilization
activities authorized by NWP 13 must
occur at the location of the bank. The
statement required for NWPs 39 and 43
is intended to encourage the applicant
to consider ways to avoid and minimize
impacts to waters of the United States
during project planning. It also provides
avoidance and minimization
information to Corps personnel with the
,PCN, instead of requiring die District
Engineer to ask die'applicant if
additional avoidance"and minimization
can be achieved. The avoidance and"
minimization statement will allow more
expeditious review of the PCN.
One commenter stated diat a
delineation of special aquadc sites
should be required fo'r every activity
diat requires a PCN. Anodier commenter
recommended establishing a
notification process for projects diat
include development on floodplains, so
that.State and local fioodplain
management agencies can review the
proposed work.
We disagree diat a delineation of
special aquatic sites is necessary for
every activity requiring a PCN. General
condition 13, paragraph (b)(4), lists die
NWPs diat require submission of a
delineation of special aquatic sites widi
die PCN. It is not practical for the Corps
to establish a notification process for
projects diat occur in floodplains. In
many parts of the country, there are -
floodplains that are not waters of the
United States. Development activities in
floodplains that do not involve
discharges of dredged or fill material
into jurisdictional wetlands or odier
waters of die United States do not
require a Section 404 permit, even.
though a Corps permit may be required
to cross waters of the United States to
provide access to the upland
development Many State and/or local
governments currendy have programs
that address construction in floodplains.
Issuance of an NWP authorization for an
activity widiin a fioodplain does not
preclude die State or local fioodplain,
management-agency from denying its
audiorization. If the State or local
regulatory agency does not authorize die
proposed work, dien the project
proponent cannot do the work even
though the Corps may have determined
diat it qualifies for authorization under
die NWP program.
In response to die July 1, 1998,
Federal Register notice, the National
Park Service (NPS) requested that tfcsv.
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Federal Register Vol. 64. Nro. 139/Wednesday, July 21. 1999/Notices
receive full opportunity to comment on
ill proposed NWP activities that may
impact NFS resources. NFS also
requested that they be able to request
elevation of specific projects to require
review under the individual permit
process. Although the Department of the
Interior, through the U.S. Fish and
SVildlife Service (FWS). has the
opportunity to review PCNs that require
agency coordination. NFS believes that
the 5 day comment period dees not
provide enough time to allow FVVS to
consult with NFS.
We do not agree that it is necessary
to consult with NFS on every NWP
activity. If NFS has specific concerns,
diey should be addressed at the district
level, either through coordination
agreements between the District
Engineer and the local NFS office or
through the regional conditioning
process. The proposed modification of
the PCN process would allow district
engineers to provide up to 25 calendar
days for agency comment on a specific
NWP activity that requires agency
coordination. We believe that this is
ample time for FWS to coordinate with
NFS.
One commenter recommended that
the Corps post PCNs on district Internet
home pages to allow the public to
provide comments and better track
cumulative adverse effects. Another
commenter requested that the Corps
coordinate with the appropriate agency
prior to issuing NWP authorizations in
Tribal trust lands to determine if treaty
reserved resources would be adversely
affected by die work.
The purpose of the PCN process is to
provide the Corps with an opportunity
to determine if a proposed activity
complies with the terms and conditions
of the NWPs and results in minimal
adverse effects on the aquatic
environment, individually or
cumulatively. Posting PCNs on che
Internet would add no value to the
Corps review of the PCN. Cumulative
adverse effects on the aquatic
environment will continue to be tracked
by Corps districts. Corps districts can
regionally condition the NWPs to
require coordination for activities that
may adversely affect treaty reserved
resources in Tribal trust lands.
Compensatory Mitigation
A large number of commenters
specifically addressed the compensatory
mitigation requirements of the proposed
new and modified NWPs. A few
commenters stated that the proposed
provisions discourage compensatory
mitigation, because the requirements are
too complex and burdensome. Other
commenters assert that the
compensatory mitigatioh requirements
discussed in the July 1. J1998, Federal
Register notice are not specific enough.
Many commenters provided
recommendations concerning the size
and types of losses authorized by the
NWPs for which compensatory
mitigation is appropriate. These
recommendations included/equiring
compensatory for: (1) Ail activities
audiorized NWPs, (2) activities that
require submittal of a PGN, (3) losses of
greater than l/3 acre of waters of (he
United States, or (4) losses of greater
than 1 acre of waters of the United
States. One commenter ^suggested diat
compensatory mitigation should also be
required for all impacts to non-wetland
aquatic resources. Several commenters
stated that the Corps should not require
compensatory mitigatioh for wetlands
losses because other St^te and local
regulatory agencies already have such
requirements. :
We acknowledge that.the discussions
of compensatory mitigation
requirements indie July 1. 1998,
Federal Register notice [contained some
inconsistencies. Therefore, we will
clarify these requirements in general
terms, but permittees mbst recognize
that specific compensatory mitigation
requirements for particular projects are
established by the District Engineer.
Compensatory mitigatio|n will normally
be required for NWP activities that
require submission of a !PCN (e.g., losses
of greater than 'A acre ojf waters of the
United States), and in all case:: vhere
compensatory mitigation is necessary to
ensure that the, authorized work results
in minimal adverse effepts on the
aquatic environment. The District
Engineer may determine that
compensatory mitigatioh is not
necessary for a particular project
because the proposed work will result
in only minimal adverse effects on the
aquatic environment. Activities that do
not require notification are presumed to
result in minimal adverse effects and
would not require compensatory
mitigation to bring the adverse effects to
the minimal level. District and division
engineers can regionally condition an
NWP to lower the notifi'cation.threshold
and determine, on case-|by-case basis, if
compensatory mitigation is necessary to
ensure that the authorized work results
in minimal adverse effebts on the
aquatic environment. |
Although many Statei and local
agencies may require compensatory
mitigation for losses of wetlands, we can
require compensatory mitigation for
losses of other waters of the United
States. If the compensatory mitigation
requirements of a State or local agency
for a particular project adequately
address the Corps concerns or
requirements, then that compensatory
mitigation can be used to satisfy the '
Corps compensatory mitigation
requirements. However, some State and
local governments may not have
adequate compensatory mitigation
provisions to ensure that activities
authorized by NWPs will result in
minimal adverse effects on the aquatic
environment. Therefore; .the Corps-can
impose its own compensatory
mitigation- requirements.
Many commencers expressed
opposition to the use of compensatory
mitigation to offset losses of waters of
die United States that result from
activities audiorized by NWPs. They
believe that compensatory mitigation
encourages off-site, out-of-kind
compensation for losses of waters of the
United States. Another objection raised
by diese commenters is diat some
wedand types are not easily created. A
number of commenters cited studies
that evaluated compensatory mitigation
projects and found diem to be ,
unsuccessful or only partially
successful. One commenter stated that
only restoration and creation should be
used to calculate net gains in wetlands.
One comrrienter recommended limiting
preservation only to exceptional quality
or unique wedands.
Compensatory mitigation is often
necessary to offset the loss of waters of
the United States and ensure that an
activity authorized by NWP will result
in minimal adverse effects on the
aquatic environment. The NWP
regulations at 33 CFR Part 330.1 (e) (3)
allow permittees to provide
compensatory mitigation to reduce die
adverse effects of the proposed work to
the minimal level. The-functicms and
values provided by waters of the United
States that are lost due to audiorized
activities can be replaced by carefully
planned and constructed restoration,
enhancement, and creation of aquatic
habitats. Compensatory mitigation can
also protect and enhance important
aquatic'resource functions and values
through the establishment and
maintenance of vegetated buffers
adjacent to waters of the United States
and, in exceptional circumstances, the
preservation of high value aquatic
habitats. Without compensatory
mitigation, the Corps regulatory
program would not be able to satisfy a
principal goal of the Clean Water Act,
which is the restoration and
maintenance of the physical, chemical,
and biological integrity of the Nation's
waters.
Compensatory mitigation
requirements should be based on what
is best for the aquatic environment, not
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Federal Register/Vol. 64. No. 1397Wednesday, July 21. 1999/Notices
3927L
inflexible requirements for in-kind and
on-site compensnrory mitigation that
may not successfully replace lost
functions and values of aquatic habitats.
The primary goal of compensatory
mitigation is to replace the functions
and values of waters of the United
States that are lost due to activities
authorized by NWPs. It is essential that
compensatory mitigation projects that
restore, enhance, or create aquatic
habitats have a high probability of-
success. Much of the failure of past
. compensatory mitigation projects is due
to poor, site selection, planning, and
implementation. On-site compensatory
mitigation projects may fail because site
conditions, such as local hydrology, are
usually substantially changed by the
authorized activity. For example, once a
residential subdivision is constructed.
the on-site hydrology may be altered to
trie extent diat the site cannot support
a restored or created wetland. In such
cases, it may be better for the aquatic
environment to conduct the ,
compensatory mitigation project off-site,
in a location with better chances for
' success within the watershed of the
authorized work.
When reviewing compensatory
mitigation proposals, district engineers
will consider what is best for the aquatic
environment, including requiring
vegetated buffers to open waters,
streams, and wetlands. Wetland
'restoration, enhancement, creation, and
in exceptional circumstances,
preservation are not the only
compensatory mitigation activities that
can be required for an NWP
authorization. Stream restoration and
enhancement can also provide
compensatory mitigation for losses
resulting from activities authorized by
NWPs. Upland buffers can be
considered as out-of-kind compensatory
mitigation because they protect local
water quality and aquatic habitat.
Vegetated buffers reduce adverse effects
to water quality caused by adjacent land
use. For example, forested riparian
buffers provide shade to streams,
supporting cold water fisheries. We
cannot require compensatory mitigation
for upland impacts, but we can require,
as compensatory mitigation, upland
vegetated buffers that protect water
quality' and aquatic habitat. It is
important to note that the NWPs are
optional permits, and if the project
proponent does not want to establish
and maintain vegetated buffers adjacent
to waters of the United States to qualify
for an NWP authorization, then he or
she can apply for authorization through
die individual permit process. The -
vegetated .b^uff^r/adjacent to^vaters^of
the United Srates can be ari !tm'p;ortant
part of the compensatory mitigation
required for a Corps permit. District
engineers should adjust the amount of
"replacement acreage" required for
compensatory mitigation by an amount
chat recognizes the value of the
vegetated buffer to the aquatic
environment.
We recognize that certain wetland
types are not easily restored or created.
Past failures to replace certain types of
wetlands are not sufficient justification
to stop all efforts to replace wetlands
lost through the Section 404 program.
Some types of wetlands are easily
restored or created, although they may
take several years to achieve functional
equivalence compared to natural
wetlands. Preservation is also an
important mechanism to protect
remaining high value wetland types; ••
particularly those that cannot be easily
restored or created. Careful site
selection, planning, and construction
are essential to achieve greater success
for compensatory mitigation projects.
The ability of the Corps to review and
monitor compensatory mitigation
projects required for NWP •
authorizations is dependent upon
workload and available resources.
Increased use of mitigation banks and
appropriate in lieu fee programs may
make monitoring efforts more
manageable, because those efforts can be
focused on a smaller number of large
sites instead of a large number of small
individual mitigation projects.
Mitigation banks and appropriate in lieu
fee programs may provide better
compensatory mitigation because they
are often better planned, constructed,
and maintained. The goal of
compensatory mitigation is to offset
losses of waters of die United States
authorized by the Corps regulatory
program. Because the Corps program
causes the avoidance of most high value
wetlands, most permitted impacts are to
moderate or low value wetlands.
We also received numerous comments
concerning the location and types of
compensatory mitigation that should be
acceptable for the NWP program. Most
commenters expressed a preference for
restoration, and some commenters
oppose the use of enhancement or
preservation of aquatic resources to
provide compensatory mitigation. Some
commenters oppose die use of out-of-
kind compensatory mitigation to offset
losses of waters of the United States.
Several commenters recommended that
the Corps require compensatory
mitigation at specific ratios, ranging
from 1:1 to 5:1. Many commenters
•xfafpH fhat romnensatorv tnitifzation
projects should be confined to the
watershed where the losses resulting •
from the authorized activity occurred.
Most commenters recommended that
the NWPs should not express a
sequencing preference for on-site
mitigation, mitigation banks, or in lieu
fee programs. One commenter stated
chat the NWPs should have a general
condition establishing compensatory
mitigation performance criteria, to
specify basic requirements.
We recognize that restoration is the
type of compensatory mitigation with
the greatest probability of success and
encourage its use wherever possible.
Enhancement of aquatic resources
improves the functions and values of
low-quality waterbodies. but should not
be used in high value waters. As stated
in the July 1, 1998, Federal Register
notice, preservation of aquatic resources
is estimated to comprise less than 5% of
the compensatory mitigation required
by the Corps, but it is an important
mechanism for protecting high value
wetlands and waterbodies.
Out-of-kind compensatory, mitigation
should not be prohibited because it can
provide substantial benefits for the
aquatic environment. An important
form of out-of-kind compensatory
mitigation is the establishment and -
maintenance of upland vegetated buffers
adjacent to open or flowing waters or
wedands. Upland vegetated buffers help
protect and enhance the water quality
and aquatic habitat features of waters of
the United States.
Specific compensatory mitigation
requirements, such as replacement
ratios, are determined by district
engineers on a case-by-case basis. For
the NWPs, district engineers determine
what compensatory mitigation is
necessary to ensure diat the adverse
effects of the proposed work on the
aquatic environment are minimal. The
Corps can require compensatory
mitigation in excess of a 1:1 ratio of
impact acreage to compensatory
mitigation acreage in order to
adequately replace the lost aquatic
resource functions and values. The
Corps can also accept out-of-kind
compensatory mitigation, if it provides
benefits to the aquatic environment. We
believe that it is inappropriate, due to
the differences in aquatic resource
functions and values across the country,
to establish national requirements for
compensatory mitigation.
One commenter stated that the
compensatory mitigation data cited by,
the Corps in the July 1, 1998, Federal
Register notice was misleading because
many NWP activities do not require
reporting to the Corps. Several- ,-
commenters requested that the Cf
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Federal Register/Vol. 64, No. 1397 Wednesday, July 21, 1999/Notices
provide accurate data on losses of
waters of the United States to allow the
public to consider compensatory
mitigation requirements and that this
data should specify the proportion of
compensatory mitigation that is
achieved through enhancement of
aquatic resources. A number of
commenters requested that the Corps
modify its data collection efforts to
monitor the amount of compensatory
mitigation that is accomplished through.
restoration, enhancement, creation, and
preservation, as well as the effectiveness
of these activities. Two commenters
recommended that the Corps furnish
this data to die States on an annual -
basis.
The compensatory mitigation data
cited in the July 1. 1998. Federal
Register notice is based on the acreage
of reported wetland impacts' and
wetland compensatory mitigation. This
data does not Include compensatory
mitigation for Impacts to streams and
other types of non-wetland aquatic
habitats. Many of die non-reporting
NWP activities do not result in filling of
wetlands and would not normally
require compensatory mitigation to
ensure diat the adverse effects to the
aquatic environment are minimal. For
NWP activities that do not require
notification to die Corps, many
permittees request a written
determination from the Corps to ensure
that their projects qualify for NWP
authorization. The wetland impact
acreage for these activities is included
in the data compiled by the Corps.
District engineers can require
compensatory mitigation for these
projects to ensure that diey result in
only minimal adverse effects on die
aquatic environment.
The data collection systems for most
Corps districts do not currently
differentiate between the amounts of
compensatory mitigation provided
through restoration, enhancement,
creation, or preservation. Instead, most
districts track only the total amount of
compensatory mitigation required for
Corps permits. The effectiveness of
compensatory mitigation efforts is
monitored by district engineers on a
case-by-case basis, to the extent allowed
by workload and personnel resources.
Therefore, we cannot collect this type of
information. The data the Corps collects
on impacts to waters of the United
States and compensatory mitigation is
public information.
Support and opposition for the use of
mitigation banks and in lieu fee
programs to compensate for NWP
impacts was equivocal. Many
values of smaller, scattered wetlands
and that die increased use of mitigation
banks and in lieu fee programs will nor
replace local wetland functions and
values. A couple of comfnenters were
concerned that consolidation of wetland
habitats in a single place could increase
the vulnerability of that jsingle
ecological wetland unit,[and would not
allow for a mosaic of weplands. Others
argued diat mitigation banks would
better compensate for scattered wetland
losses by providing consolidated
locations for compensatory mitigation,
widi greater chances of success. Some
commenters expressed cpncem diat
mitigation banking would disrupt the
mitigation sequence process and one
commenter specifically requested that
"die Corps place stronger'emphasis upon
avoidance and minimization of impacts.
• Many commenters recommended
streamlining die processor establishing
mitigation banks, and some commenters
requested modification of die NWP
terms and conditions to pncourage the
use of mitigation banks. These
commenters also requested diat the
Corps more clearly establish, die policy
diat on-site compensatory mitigation
may not always be the preferred choice.
Several commenters suggested diat
mitigation banks should ;be established
in each watershed. Some commenters
expressed concern diat rhitigation
banks, in some cases, utilize
preservation of aquatic resources, which
does not replace lost wetiland functions
and values, and does not comply widi
the goal of "no net loss" of wetlands. '
We cannot require the Establishment
of mitigation banks in a particular
watershed or geographiciarea.
Mitigation banks are usually
constructed and maintained by
entrepreneurs, who locate mitigation
banks in areas where diey believe the
established credits will sell quickly. In
the December 13, 1996, Federal Register
notice (61 FR 65874-65922), we did not
direct Corps districts to require
permittees to use mitigation banks for
offsetting wetland losses^due to NWP:
26, but suggested that mitigation banks ,
could be used, in addition to in lieu fee
programs, to provide compensatory
mitigation for impacts below 1 acre.
Consolidated mitigation methods,
including mitigation banks and in lieu
fee programs, are often ah efficient -
means of compensating for losses of
waters of die United States, particularly
for multiple small projects, and may
confer benefits to the aquatic
environment as well (see 61 FR 65892).
We recognize, diat mitigation banks and
in lieu fee programs are often more
typically expended on these projects by
their proponents. In contrast, individual
efforts to create, restore, or enhance
wetlands to replace small wetland
losses may be unsuccessful because of
poor planning and/or construction.
Furthermore, consolidated mitigation
efforts are often better monitored and
maintained and often result in die
establishment of a larger contiguous
wetland area diat benefits the overall
local aquatic environment and many of
. the species that utilize larger aquatic"
habitats. Aldiough smaller, scattered
wetland areas diat exist in the landscape
as a mosaic provide essential habitat for
certain species, die local changes in
land use usually makes-it impossible to
maintain those mosaics in any
ecologically functional capacity.
Recreating diose wetland mosaics is
often impractical and it is better to
provide compensatory mitigation
dirough consolidated mitigation
methods.
As widi all other compensatory
mitigation, die use of mitigation banks
and in lieu fee programs does not
eliminate die need to avoid impacts on-
site. General Condition 19 of die NWPs
requires diat permittees avoid and
minimize losses of waters of die United
States on-site to die maximum extent
practicable. If die District Engineer
determines diat compensatory
mitigation is necessary to ensure diat •
die particular NWP activity results only
in minimal adverse effects on the
aquatic environment, individually or
cumulatively, dien the District Engineer
can require compensatory mitigation to
offset the loss of waters of the United
States. Mitigation banks and appropriate
in lieu fee programs can be used to
provide the required compensatory
mitigation. The preferred form of
compensatory mitigation should be
based on what is best for the aquatic
environment, whether die compensatory
mitigation is on-site, off-site, in-kind, or
out-of-kind. .
Many of die commenters that were
opposed to in lieu fee programs were
strongly in favor of mitigation banks.
Several of Uiese commenters stated that
mitigation banks have distinct
advantages over in lieu fee programs,
since mitigation banks have specific
processes to establish goals, credits, and
monitoring. Some commenters believe
diat in lieu fee programs compete
unfairly widi mitigation banks, since
Uiey are easier to establish and are often
less costly than mitigation banks. One
commenter requested that in lieu fee
programs be prohibited in areas widi
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Federal Register/Vol. 64, No. 139/Wednesday, July 21, 1999/Notices
39283
wetlands within the 100-year
tloodplain. is often required and the
condition would put an unnecessary
burden on their departments while
delaying their projects. They
recommended exempting NWP 14 from
rhis condition. Few of the objectors
recommended which specific NVVPs.
existing or proposed replacements,
should be excluded from this condition.
Collectively, every NWP was
recommended for exclusion.
To reiterate, in accordance with
Executive Order 11988, district
engineers should avoid authorizing
floodplain developments whenever
"practicable alternatives exist outside of
excluded from this Federal'program.
The NWP general conditions already
impose restrictions on NWP eligibility -•
in waters that are components of Wild
and Scenic River Systems, and on any
river officially designatSd by Congress
as a "study river" for possible inclusion
in such systems. Since this general
condition imposes restrictions that
achieve the goals of adequately
protecting special values, and of
maximizing NWP utility, we. do not
believe that further restriction is
appropriate or necessary. American
Heritage Rivers may be likely candidates
for inclusion as critical resource waters
but it is difficult to identify any possible
adverse effect that would result from •
NWP eligibility in these waters. It is
particularly difficult to .identify such
effects from a national perspective.
We believe that the imposition of any
restriction imposeoV to protect Critical.
Resource Waters must be precise in its
scope, in order to provide all reasonable
and necessary protection of the factors
conferring special value, without
unnecessarily limiting the utility of the
NWPs. Since we believe that these two
goals are equally important, we have
concluded that it would be too broad a
restriction to eliminate the applicability
of any NWP in special value waters
without a prior Corps determination
that the NWP in question posed some
reasonable likelihood of adverse effect
on the recognized special value. Our
consideration of the comments received
and our concern about undue
restrictions on the NWPs, lead us to
conclude that we are unable to make
additional determinations from a
national perspective. As a result, we
believe that any such determination of
other types of waters would most
appropriately be made at the district or,
in some cases, at the division level, and
that as a practical matter, the necessity
of further restriction to protect waters
that have a Federal special value
designation must be determined by the
Corps district or division and
implemented as regional conditions on
the NWPs, as necessary.
Sensitive and specially valuable
waters:There is no official Fedetiaf'•'
H ACItmaHrtn nf a rw...waters ag qt>TV>T&V' '"T
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Federal Register/Vol. 64. No. 1397Wednesday, July 21, 1999/Nocices
specially valuable waters, therefore
rhere is no Federal definition of such
waters. We believe that the inclusion of
such arbitrary terms in the definition of
Critical Resource Waters would be
counterproductive, and we do not agree
rhat introduction of additional
ambiguity is appropriate. We further
believe that the use of any NWP in
waters identified by die Corps, on a
case-by-case basis, as having some
particular sensitivity or special value "
that is susceptible to degradation by the
activity authorized by the NWP. can be
adequately protected by the Corps use of
Its discretionary authority to require an
individual permit review, as necessary.
Habitat of endangered, threatened, or
sensitive species: Federal protection for
the critical hobitat of Federally-listed
threatened and endangered species is
provided In all Corps permit actions
through compliance widi the
requirements of die Endangered Species
Act, with the regulations promulgated
pursuant to diat Act. and through NWP
General Condition 11. General
Condition 25 contains a provision
stating that discharges are not
authorized in designated critical habitat
for Federally listed threatened or
endangered species unless die activity
complies with General Condition 11 and
die U.S. Fish and Wildlife Service or the
National Marine Fisheries Service has
concurred In a determination of
compliance wldi this condition. Since,
"sensitive species" Is a term diat is not
defined In the Endangered Species Act
or in any other applicable Federal law,
we believe that including die habitat of
such "sensitive species" would promote
confusion rather than provide clarity in
the definition of critical resource waters,
and we do not believe that such
Inclusion is appropriate.
Source waters for drinking water We
do not believe diat any of die activities
audiorlzed by die NWPs pose any
inherent threat to drinking water or to
the source waters for drinking water, but
It may be possible for such adverse
effects to occur In certain
circumstances. However, we believe-
diat die specification of all such source
waters as critical resource waters would
Impose a restriction on die utility of die
NWPs that is not warranted by the
limited extent of potential adverse .
effects. In light of this, we believe it Is
more appropriate to rely on the Corps
use of its discretionary audiority, on a
case-by-case basis, to ensure against
adverse effects on drinking water.
Groundwater recharge zones: We
agree that any activity diat significantly
Impairs groundwater recharge functions
of wedands must be avoided. However,
inherently result from t$e kinds of
activities authorized byjthe NWPs. As
such, we believe that any restriction on
die audiorization of an activity should
be based on the effects that are expected
to occur as a result of a specifically
proposed activity. Since1 we do not
expect the majority of activities
audiorized by die NWPs to adversely
affect groundwater recharge, we believe
diat our ability to assert .discretionary
audiority to require an individual
permit in lieu of any N\VP, for cause,
provides ample protection for
groundwater recharge zones.,
Rare and irreplaceable wetlands that
cannot be mitigated with current
technologies. \
As with many of the other types of
•wedands suggested for inclusion as
critical resource waters, [the term "rare
and irreplaceable wetlands diat cannot
be mitigated widi current technologies"
is undefined, and die general
nationwide specificatiorji of such
wetlands as critical resource waters
would be a continuing source of debate
and, therefore, impractical. However,
we acknowledge that many wetlands
systems may qualify as trare and
irreplaceable" because of their location
in die landscape of a particular region.
We believe that such locally rare and
irreplaceable wetlands ate critical
resource waters because of dieir local
importance. We believe that as such
wetlands are recognized^ by Corps
district and division offices, the
revocation of any NWP t!hat poses a
threat to diese systems, <|>r die
imposition of regional conditions to
avert such threats, should be
considered. . . !
Waters declared as impaired under
Section 303(d) of the Clean Water Act:
"Impaired waters," as defined in
Section 303 (d) of die Clean Water Act,
are addressed as a separate issue in die
next section of diis Federal Register
notice, and as such, we ho not believe
it is appropriate to include these waters
in die definition of critical resource
waters. i
Proposed General Coridition 25
prohibits the use of NWPs 7. 12,14, 16,
17. 21, 29, 31, 35, 39, 40;, 42, 43, and 44
for any activity in certaih Federally- and
State-designated critical! resource
waters, including" wetlands>djacent to
those waters, widi die exceptions
discussed above. For NVyPs 3, 8, 10, 13,
15, 18, 19, 22, 23, 25, 27[, 28, 30. 33, 34,
36, 37, and 38, notification is required
for activities in designated critical
resource waters and adjacent wedands,
to allow die district engineer to
determine if die proposed work will
result in more than minimal adverse
authorized by the NWPs not listed in
General Condition 25 would riot be
subject to these requirements. Corps
districts may also consider die use of
regional general permits for those
activities prohibited by General
Condition 25, if die District Engineer
determines after public notice and
opportunity, for public comment that on
a regional basis, such activities will not
result in more dian minimal adverse.
effects on die aquatic environment.
individually or cumulatively.
Limiting the Use of the NWPs in
Impaired Waters
In die Federal Register notice
published on October 14; 1998. we
requested comments on restricting or
prohibiting die use of the NWPs in
impaired waters, including how to
identify impaired waters for the
purposes of the NWPs, and which
NWPs should be subject to diis
limitation. We received a'large number
of comments supporting die proposed
limitation and a large number of
comments objecting to die proposed
limitation. •
Some commenters stated diat the
proposed exclusion should apply to die
use of NWPs in all wetlands and odier
waters within die watersheds of
impaired waters. Other commenters
recommended diat die use of NWPs
should be excluded from wedands or
waters upstream or adjacent to impaired
waters. Two commenters stated diat
NWPs should be excluded from use in
wedands in impaired waters, even if die
historic loss of wetlands within die
watershed is not the cause of
impairment, because those wedands are
of high value in that watershed. In
contrast, several other commenters
agreed with the Corps proposal to
restrict the use of NWPs only in those
watersheds diat are considered impaired
as a result of historic wedand losses.
These commenters recommended diat
die exclusion apply only to "State-
designated impaired waters which are ,
determined to be impaired-as a result of
die historic loss of wetlands." Several
commenters supported die proposed
exclusion,, provided the restriction
applies only to tiiose projects that will
result in further degradation of die
waterbody based on the applicable
303(d) parameter; if die proposed work
will have no effect on die 303(d)
parameter, dien die project could be
audiorized by NWP.
In die October 14, 1998, Federal
Register notice, we stated diat die
impairment of certain open waters such
as lakes, rivers, and streams is direcdy
related to the historic loss of wedands
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39285
explicitly stated in the October 14, 1998.
Federal Register notice, the intent of the
proposal was to restrict the use of NWPs
in waterbodies that are impaired due to
the loss of wetlands. This remains our
intent, but we are also proposing to add
several other causes of impairment that
will be considered as part of the
restriction. The additional causes'of
impairment include: nutrients, organic
enrichment resulting in low dissolved
oxygen concentration in the water
column, sedimentation and siltation.
habitat alteration, suspended solids,
• flow alteration, and turbidity. These
additional sources of impairment may
be related to activities regulated under
Section 404 of die Clean Water Act. We
are proposing to incorporate this
restriction into the NWP program as
General Condition 26, entitled Impaired
Waters. . .
We believe that discharges of dredged
or fill material into impaired waters of
the Ohited States and adjacent wetlands
may cause further impairment of those
waters. Proposed General Condition 26
prohibits the use of NWPs to authorize
discharges resulting in the loss of
greater than 1 acre of impaired waters of
the United States, including wedands
adjacent to those waters, except for
activities authorized by NWP 3.
Activities audiorized by NWP 3 that
occur in impaired waters and adjacent
wetlands require notification to the
District Engineer in accordance with
General Condition 13, who will
determine if the proposed work will
result in furdier impairment of the
waterbbdy. For activities resulting in the
loss of 1 acre or less of impaired waters
of die United States; including adjacent
wedands, die prospective permittee
must notify the District Engineer in
accordance with General Condition 13
and die work authorized by NWP must
not result in further impairment of the
waterbody. The-notification must
include a statement from the permittee
that clearly explains how the proposed
work, excluding mitigation, will not
further impair die waterbody. The
District Engineer will determine if the
prospective permittee has clearly
demonstrated diat die proposed' work
will not result in'further impairment of
the waterbody. For discharges resulting
in die loss of greater than 1A acre of
impaired waters, including adjacent
wetlands, die District Engineer .will
coordinate with the State 401 agency in
accordance with the procedures in
paragraph (e) of General Condition 13.
The District Engineer will consider any
comments received from the State 401
impairment oFtKe listed waterbody. If
the District Engineer determines that the
proposed activity will not result in
further impairment of the waterbody by
providing additional inputs of die listed
pollutant (i.e.. nutrients, organic
enrichment resulting in low dissolved
oxygen concentration in the water
column, sedimentation and siltation,
habitat alteration, suspended solids,
flow alteration, turbidity, and loss of
wetlands), then die project can be
authorized by NWP if it meets all of die
other terms and conditions of die NWPs.
If die District Engineer determines that
the proposed activity will result in
further impairment of the-waterbody by
contributing more of the listed pollutant
to die impaired waterbody, then the
project cannot be audiorized by NWP
and the project proponent must apply
for authorization either through the
individual permit process or obtain
authorization dirough an appropriate
regional general permit, if available.
For die purposes of this proposed
general condition, impaired waters are
diose waters of die United States diat
have been identified by States or Tribes
dirough die Clean Water Act Section .
303 (d) process as Impaired due to
nutrients, organic enrichment resulting
in low dissolved oxygen concentration
in die water column, sedimentation and
siltation, habitat alteration, suspended
solids, flow alteration, turbidity, and die
historic losses of wetlands. The Corps
will defer to states to identify these
waters under.die Section 303(d) process,
because states are responsible for
implementing Section 303 of die Clean
Water Act, specifically the Total
Maximum Daily Load (TMDL) program
overseen by EPA. TMDL standards must
be approved by EPA after a formal
public notice and comment period.
States must submit lists of impaired
waters to EPA every two years. The
audiorized activity itself can result in
net improvement of the aquatic
ecosystem. For example, NWP 13 can be
used to audiorize bank stabilization
activities in a waterbody, diat has been
identified as impaired due to
sedimentation, because the bank
stabilization activity reduces die
amount of sediment entering the
waterbody, diereby improving water
quality. Compensatory mitigation can be
used to offset losses of waters of die
United States audiorized by NWPs and
reduce the sources of pollution-causing
impairment of die local aquatic
environment. The establishment and
maintenance of vegetated buffers
adjacent to open and flowing waters is
waterbody by restoring aquatic habitat.
removing nutrients from surface runoff
and groundwater flowing into
waterbodies, trapping sediments, and
moderating changes in water
temperatures.
Several commenters believe that the
use of NWPs in impaired waters is a
violation of the Clean Water Act and
that individual permits must be used
instead to authorize Section 404
activities. A number of commenters
objected to die proposed exclusion
because diey believe that concerns for
impaired waters should be addressed by
states or Tribes under Sections 101,(b)
and 401 of the Clean Water Act. Several
of these commenters stated that the
proposed exclusion duplicates State
efforts and is unnecessary for the NWP '
program, because states currendy
consider the effects of development
projects on impaired rivers. A number
of commenters expressed concern that
excluding die .use of NWPs from
impaired waters will result in additional
pressures on average quality waters.
The use of NWPs in impaired waters
is not a violation of the Clean Water Act,
particularly when a State, Tribe, or EPA
issues a,Section 401 water quality.
certification either for the NWP itself or
for a case-specific NWP audiorization. If
die 401 agency determines diat a project
does not meet die water quality.
standards of the State or Tribe, resulting
in furdier impairment of die waterbody,
they can deny water quality certification
for that particular activity. The
requirements of proposed General
Condition 26 will not place additional
pressures on impaired waters, because
most project proponents are unlikely to
relocate their projects to areas adjacent
to or in unimpaired waters. It is
important to remember that NWPs are
optional permits, and the project
proponent can apply for audiorization
dirough die individual permit process if
he or she cannot meet die terms and
conditions of an NWP. They are much
more likely to request an individual
permit for a project rather uian
relocating die project to try to obtain an
NWP authorization.
Many commenters objected to
restricting or eliminating the use of
NWPs in impaired waters. Reasons for
their objections include: (1) Eliminating
die use of NWPs in impaired waters is
illogical and will not provide any
environmental benefits; (2) die Corps
does not explain how eliminating die
use of NWPs in impaired waters will
repair or fix the impairment; (3) no
information is provided in die October
14, 1998, Federal Register notice to
sunoort that impairment Is due tP
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watershed, since few states have
identified waters where the impairment
is due to loss of wetlands; (4) historic ~
wetland loss is an insignificant source
of impairment for most waterbodies; (5)
no clear definition of "impaired waters"
was provided in the October 14, 1998.
Federal Register notice: (6) many State
Section 303(d) lists have not been
approved by EPA: and (7) the Corps
provided no justification for making this
a Federal exclusion.
Restricting the use of NWPs in waters
that are impaired because of nutrients,
organic enrichment resulting in low
dissolved oxygen concentration in the
water column, sedimentation and
siltation. habitat alteration, suspended
solids, flow alteration, turbidity, and
historic losses of wetlands in the
watershed will benefit the local aquatic
environment by preventing additional
impairment of the waterbody and
improving die waterbody through
compensatory mitigation and best
management practices. It is important to
note diat impaired waters are identified
by evaluating open waters and segments
of streams and rivers, not the entire
watershed. Proposed General Condition
26 will apply only to those waterbodies,
or segments of waterbodies, diat have
been assessed by states under the TMDL
program. In addition, proposed General
Condition 26 will apply only to
wetlands adjacent to diose waterbodies
or segments of waterbodies. The Corps
will not identify impaired waterbodies.
As more waterbodies are surveyed by
states under the TMDL program, there
may be additional waters subject to.
General Cbndtfio'n 26. In die October 14,
1998. Federal Register notice, we
requested suggestions for identifying
impaired waters,,and cited the Section
303 (d) process as an example. Based on
the comments received in response to
die October 14, 1998, Federal Register
notice, we have determined that the
Section 303(d) program is the most
appropriate way to identify impaired
waters. We can add die requirements of
proposed General Condition 26 to die
NWP program because those
requirements are directly related to die
goals of the Clean Water Act.
A couple of commenters questioned
how the Corps will define die phrase
"identified wldi waters and aquifers
that have been identified by states as
impaired." and asked if stream flow
data, hydrologic data, or geographic
proximity will be used as criteria.
Some commenters said diere is no
indication as to die number of waters
diat are Impaired due to activities
authorized by NWPs. Many commenters
objected to die proposed exclusion.
reduce the amount of geographic area
where NWPs could be; used. Several of
these commenters stated that the
proposed exclusion wbuld prohibit the
use of NWPs in 36% o'f the rivers and
3996 of the lakes in the United States.
Because of the large amount of waters
that are considered impaired through
the Section 303(d) process, a number of
commenters stated tha;t prohibiting the
use of NWPs in impaired waters will
result in a substantial increase in the
number of individual permits processed
by the Corps, increasing its workload.
Since proposed General Condition 26
will apply only to activities in
waterbodies (and wedknds adjacent tp-
diose waterbodies) tiiat are identified by
State Section 303(d) programs as
impaired due to nutrients, organic
enrichment resulting in low dissolved
oxygen concentration in die water
column, sedimentation and siltatlon,
habitat alteration, suspended solids,
flow alteration, turbidity, and historic
losses of wedands in the watershed, and
the proposed general condition requires
that the NWP activity cannot further
impair die waterbody, !the number of
activities for which the NWPs cannot be
used..is not likely to be substantial.
Therefore, we anticipate only a
relatively minor increase in the number
of activities requiring individual
permits as a result of proposed General
Condition 26. According to EPA's
"National Summary of Water Quality
Conditions" for 1.996, fanly 19% of die
river and stream miles;in die United
States have been surveyed for TMDLs.
For other waterbodies.i 40% of the lakes,
ponds and reservoirs apd 72% of the
square miles of estuaries have been
surveyed for TMDLs. Of die river miles
surveyed, 18% are Impaired due to
siltation, 14% are Impaired due to
nutrients, 10% are impaired due to
oxygen depleting substances, 7% are
impaired due to habitant alteration, and
7% are impaired due tb suspended
solids. Of die pond, lake, and reservoir
acres surveyed. 20% a£e impaired due,
to'hutrients, 10% are impaired due to
siltation, 8% are impaired due to
oxygen-depleting substances, and 5%
are impaired due to suspended solids.
For ponds, lakes, and reservoirs, habitat
alteration was not listed as a source of
impairment in die 1996 EPA report
cited above. Of the square miles of
estuaries surveyed", 22% are impaired
due to nutrients, 12% pre impaired due
to oxygen-depleting substances, and 6%
are impaired due to habitat alterations.
There may be some ovprlap in diese
percentages, because more than one
pollutant may impair i particular
future, states identify, through the
Section 303(d) process, additional
waters as impaired due to the causes
listed in proposed General Condition
26, then those waters and any adjacent
wetlands will be subject to this general
condition.
A few commenters objected to the
reference to aquifers in the October 14,
1998, Federal Register notice. Some of
these commenters stated that Section
404 of the Clean Water Act does not
provide the Corps with the authority to
regulate groundwater. They said that
regulation of groundwater should be left
. to. die states, who have the legal
authority. Other commenters requested
guidance or definitions to identify
impaired aquifers.
We agree that Section 404 of the Clean
Water Act does not provide us with the
audiority to directly regulate activities
that affect groundwater, but since the
quality of groundwater is often affected
by activities in surface waters., we can
consider die adverse effects of work
audiorized under Section 404 on water
supplies.
Many commenters discussed potential
problems witii the proposed limitation,
especially if the Section 303 (d) process
is used to identify impaired waters for
the purposes of die proposed exclusion.
A large number of commenters stated
that waters included on die Section
303 (d) lists for specific water quality
criteria are not necessarily affected by
activities regulated under Section 404 of
the Clean Water Act Many commenters
recommended tiiat die proposed ~
exclusion should not apply to waters
that are considered impaired due to
toxic discharges, nutrient runoff,
organic pollutants, fecal coliform, and
sediment loads. Anodier commenter
objected to the proposed exclusion
because impairment of waters may be
due to activities outside of the
watershed and not directly in the
impaired waterbody. A couple of
commenters objected to using die
Section 303(d) process to identify
impaired waters because EPA is
currently attempting to refine die entire
Section 303 (d) program and is planning
to issue proposed rules and guidance
widi specific requirements for
developing Section 303(d) lists. Another
objection is diat the Section 303(d) lists
are subject to review every two years,
which may resuk in uncertainty for the
regulated public. Some commenters
oppose the use of Section 303 (d) lists
because a state often uses only one data
point to make a Section 303(d)
determination and the criteria are often
applied inconsistently between states.
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39287
rhan others, resulting in inconsistent
standards between states.
The impairment of waterbodies due to
nutrients, organic enrichment resulting
. in low dissolved oxygen concentration ,
in the water column, sedimentation and
siltation, habitat alteration, suspended
' solids, flow alteration, turbidity, and the
historic loss of wetlands, may be related
, to activities regula'ted under Section 404
, of the Clean Water Act. The
requirements of General Condition 26
• will ensure that the activities authorized
, by NWPs will not result in further. '
; impairment of the waterbody, so that
; the NWPs will authorize only activities
with minimal, adverse effects on the
: aquatic environment. Impairment due to
other causes, such as metals, tojclc '
discharges, organic pollutants^and fecal
: "oliform, will not be subject to this
; general condition. We recognize that the
! Section 303(d) lists are subject to change4
every 2 years and that many waters have
; not been surveyed to determine if they
: comply with State TMDL criteria. If
additional waters are identified as
. impaired due to the causes listed in
General Condition 26, then they will be
subject to that general condition. We
also recognize that there may be some
inconsistencies between states, but
. these inconsistencies should be resolved •
by EPA, which provides Federal
oversight for the Section 303 (d) program
and its implementation by states. '*""''
A number of commenters proposed
alternatives to prohibiting the use of
NWPs 'in impaired waters. Several
commenters stated that concerns for
i impaired waters should be addressed
, through either regional conditions, case-
specific discretionary authority, or
revocation of certain NWPs in specific
i geographic areas. Other commenters
suggested addressing concerns for
impaired waters in the same way that
the Corps addresses endangered species
and historic property issues, by adding
; a general condition to the NWPs
requiring notification to the District
I Engineer for activities that affect
, impaired waters and allowing the
District Engineer to determine if the
, proposed activity will result in further
impairment of the waterbody. If the
proposed work would result in no
further impairment of the waterbody,
then the activity could be authorized by
NWP. Another commenter suggested
, that compensatory mitigation could be
required for NWP activities to replace
lost wetlands and increase the acreage
! of wetlands in the vicinity of the
impaired waterbody. A few commenters
recommended allowing the use of NWPs
in impaired waters where the
authorized activity does not result in a
; permanent loss of pollution control
features or does not cause permanent
adverse effectsjp. water qual.ity,,citing as
examples stream' restoratiorfprbjlcts,
utility line backfills, and temporary
impacts to waters of the United States. •
Another commenter stated that the use
of NWPs in impaired waters should not
be restricted or prohibited when the
objective of the proposed work is to
restore wetlands, aquatic habitat, or
water quality, or to conduct activities
that will remove the waterbody from the
Section 303(d) list.
We agree that an NWP general
condition addressing the use of NWPs
in waterbodies designated, through the
Section 303(d) process, as impaired due
to^nutrients, organic enrichment
resulting.in low dissolved oxygen
concentration in the water column,
sedimentation and siltation, habitat
alteration, suspended solids, flow
alteration, turbidity, and the historic
loss ofwetlands is appropriate.
Proposed General Condition 26 requires
that activities authorized by NWPs in
impaired waterbodies and adjacent
wetlands will not result in further
impairment of. the waterbody.
Compensatory mitigation, if required to
ensure that the authorized work results
in minimal adverse effects on the
aquatic environment, should also help
reduce inputs of the pollutants that are
causing the impairment. Such ;
compensatory mitigation may include:
offsetting the authorized'loss of
wetlands, establishing and maintaining
a vegetated buffer that reduces the input
of nutrients, organic matter, and
sediments into the waterbody, and
reestablishing aquatic habitat adjacent
to the waterbody. NWP activities that
restore or enhance impaired waters are
not prohibited by proposed General
Condition 26.
In response to the October 14, 1998,
Federal Register notice, we received
many suggestions for NWPs that should
not be subject to the proposed
exclusion. Some commenters cited
specific types of activities that should
not be prohibited from NWP
authorization in impaired waters. One
commenter suggested that the exclusion :
should not apply to the maintenance of
transportation projects. Other
commenters suggested that flood control
activities and the maintenance of flood
control projects should be exempt from
this exclusion. Some commenters said
that the exclusion should apply only to
those NWP activities that have a direct
effect on a Section 303(d) parameter.
We believe that proposed General
Condition 26 should apply to all NWPs
that authorize discharges of dredged or
fill material into waters of the United
States identified as impaired due to die
causes listed in the general condition.
Proposed activities that result in further
impairment of the listed waterbody or
result in the loss of greater than 1 acre
of impaired waters and adjacent
wetlands (except for activities
authorized by NWP 3 as discussed
above) are not authorized by NWPs.
Prospective permittees are required to
notify the District Engineer in
accordance with General Condition 13.
and the District Engineer will determine
whether or not proposed work will
result in further impairment of the
waterbody. For proposed activities
resulting in the loss of greater than 1/4 '
acre of impaired waters and adjacent
wetlands, the; District Engineer will
coordinate di the State 4,01 agency in
accordance with paragraph (e) of
General Condition 13. Proposed General
Condition 26 does not apply to activities
in impaired waters that are subject only
to Section 10 of the Rivers and Harbors
Act, if there is no related Section 404
activity. Maintenance activities for
. transportation projects and flood control
projects that do not result in discharges
of dredged or fill material are not
subject to the requirements of proposed
General Condition 26.
///. Comments and Responses on
Specific Nationwide Permits
3. Maintenance
In the July 1, 1998, Federal Register
notice, the Corps proposed to modify
this NWP to authorize the removal of
accumulated sediments in the vicinity
of existing structures. We also proposed
to authorize activities in waters of die
United States associated with the
restoration of uplands lost as a result of
a storm, flood, or other specific event.
These additional activities are
audiorized by paragraphs (ii) and (lii) of
the NWP.
, General Comments on this NWP: The
original terms and conditions of NWP 3
are in paragraph (i) of this NWP. In die
July 1, 1998, Federal Register notice, we
proposed minor changes to the original
text of NWP 3. In die July 1, 1998,
Federal Register notice, we proposed to
add a notification requirement for all
work audiorized by paragraph (i) of the
proposed modification of NWP 3 except
for the replacement of die structure. We
also inserted die phrase "or damaged"
after die word "destroyed." We also
received some comments concerning die
provisions of NWP 3 as published in die
December 13,1996, issue of the Federal
Register (61 PR 65874-65922).
Some commenters recommended
removing die PCN requirement from
paragraph (i) whereas other commenters
suggested modifying the NWP to require
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Federal Register • Vol. 64. No. 139/Wednesday. Julv 21. 1999/Notices
?CNs for all activities authorized by
NWP 3. Many commenters stated that a
replacement project generally results in
greater Impacts than repair and
rehabilitation activities, but notification
should be required only if the repair and
rehabilitation activity exceeds the
"minor deviations in the structure's
configuration or filled area" provision of
the NVVP. One commenter stated that it
was unclear whether repair and
rehabilitation activities require
notification. We have removed the PCN
requirement from paragraph (i) of this
N.»P. since we do not believe it is
necessary to require notification for the
repair, replacement, or rehabilitation of
a previously authorized structure or fill.
Two commenters suggested that the
definition of the phrase "minor
deviations in the structure's
configuration" should be made more
compatible with modern design
standards and another suggested that
the definition of "currently serviceable"
should be expanded to cover all
structures which have been destroyed in
a catastrophic event, such as a
hurricane.
This NWP authorizes repair,
rehabilitation, and replacement
activities with minor deviations
necessary to comply with modern
design standards. Previously authorized
structures or fills that have been
damaged by catastrophic events can also
be repaired, rehabilitated, or replaced
under this NWP. We do not need to
change the definition of the term
"currently serviceable."
General comments addressing this
NWP Include: (1) Prohibiting its use in
watersheds with substantial historic
aquatic resource losses; (2) prohibiting
its use In regionally identified tidal
waters to ensure effective protection of
their unique and difficult to replace
functions: (3) prohibiting its use in
certain stream segments to ensure
minimal cumulative adverse effects; (4)
prohibiting its use in watersheds
identified as having water quality
problems; and (5) requiring the
permittee to perform the work during
low flow conditions.
We believe that these restrictions are
unnecessary since NWP 3 authorizes
maintenance activities, which are
unlikely to result in more than minimal
adverse effects on the aquatic
environment. However, division
engineers can regionally condition NWP
3 to restrict or prohibit its use in high
value waters. Division engineers can
also regionally condition NWP 3 to
reduce the distance from the existing
structure that accumulated sediment
can be removed or reduce the amount of
the United States for activities
associated with the repair of uplands
damaged as a result of stJDrms or other
discrete events. :
Many commenters suggested
additional conditions, which would
allow minor deviations necessary to
incorporate best management practices.
Again, this is die intent of the phrase
"minor deviations in the; structure's
configuration or filled area" in
paragraph (i). It was also Suggested that
the repair and installation of scour and
bank protection should be included in
the NWP, as long as the applicant
provides documentation [of the original
construction, including But not limited
to, ""as-built" plans. Another suggested
activity to be added to NJA/T 3 was die
removal of beaver dams and associated
debris to restore the "natural"
hydrology or functions of an area.
Paragraph (ii) of die proposed
modification of NWP 3 authorizes the
installation of scour protection
necessary to protect or ensure the safety
of the structure. If bank protection is
necessary, it may be authorized by NWP
13, a regional general permit, or an
individual permit The removal of a
beaver dam may or may not require a
Section 404 permit, depending on
whether the removal of the beaver dam
results in a discharge of dredged or fill
material into waters of the United
States. If the beaver dam can be
removed without any discharges into
waters of the United States or the
discharge consists only of incidental
fallback, no Section 404 permit is
required. If the removal of the beaver
dam involves discharges 'into waters of
the United States, then a Section 404
permit is required. If a Section 404
permit is required, the removal of a
beaver dam may be authorized by
another NWP such as NVVP 18. a
regional general permit, or an individual
permit.
Removal of. Accumulated Sediments
in the Vicinity of Existing Structures: A
large number of commenters
recommended limits for paragraph (ii)
of NWP 3. Recommended limits ranged
from 20 to 300 cubic yards of excavated
material and 25 to 500 linear feet of
direct impacts upstream and/or
downstream of the structure. The
commenters recommending lower limits
believe that higher limits, for this NWP
would cause more than minimal adverse
effects on the aquatic environment The
commenters suggesting higher limits
contend that higher limits are necessary
to authorize sediment removal when
accumulation of sediments occurs for
greater distances (e.g., in flat terrain or
alluvial out-wash areas). [Another
acre and 200 linear foot limits in
paragraph (ii) if the project is in
woodlands or special aquatic sites.
Several commenters believe that there
should be no restrictions because review
of the PCN allows the District Engineer
to limit the work to the minimum
r ---rssary to maintain the function of
'. itructure. One commenter stated
that che NWP should be conditioned to
prohibit stream bed "clean-outs."
Another commenter requested, a
narrower definition of the term
"vicinity."
We believe diat the 200 linear foot
limit authorizes removal of accumulated
sediments from the vicinity of an ,u<
existing structure that, under most
circumstances, results only in minimal
adverse effects on the aquatic
environment, individually or
cumulatively. Division enginesrs can
regionally condition this NWP to
decrease the 200-foot limit or impose
limits on the quantity of excavated
material that can be removed. Since
paragraph (ii) of the proposed
modification of NWP 3 requires
notification to the District Engineer for
every activity, district engineers can
exercise discretionary authority and
require an individual permit for those
activities that result in more than
minimal adverse effects on the aquatic
environment. Paragraph (ii) of the
proposed modification does not" ''"•
authorize stream "clean out" activities,
unless sediments have accumulated in
the vicinity of an existing structure,
such as a bridge or culvert. Sediment
removal to deepen a stream channel is
not authorized by this NWP. District
engineers will determine what
constitutes the "vicinity" for the
purposes of paragraph (ii) of this NWP.
One commenter recommended that
the NWP prohibit the removal of
accumulated sediments in special
aquatic sites. Another commenter stated
that compensatory mitigation should be
required if aquatic habitat is removed.
Some commenters suggested modifying
paragraph (ii) to authorize the removal
of sediment deposits and associated
vegetation from the structures '
themselves and require testing of
sediments in areas of suspected
contamination to ensure that die
adverse effects of the work are minimal.
We do not believe that it is necessary
to exclude special aquatic site:; from
paragraph (ii) of the proposed
modification of NWP 3. Sediment
accumulation can occur in riffle and
pool complexes and can also result in
vegetated bars which may be considered
wetlands. However, these areas are
constantly changing due to sediment
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39289
these circumstances, the removal of
accumulated sediments, even if they are
vegetated, typically results In minimal
adverse effects on the aquatic
environment. District engineers can
require compensatory mitigation, if they
believe it is necessary to ensure that the
authorized work results only in minimal
adverse effects, but in most situations
compensatory mitigation is unnecessary
due to the dynamic nature of the
affected area and die minor impacts to
the aquatic environment. In fact,
removal of accumulated sediments in
die vicinity of structures may improve
the aquatic environment by removing.
barriers.to fish passage. It is likely diat
• sediments will repeatedly accumulate in
die area and will have to be removed on
a regular basis. The phrase "in die
vicinity of existing structures" includes
removal of accumulated sediments,
' including any vegetation diat may be
growing on diose accumulated
sediments, in and near the structures.
However, we will clarify die phrase to
read "* •* * in die vicinity of, and,
within, existing structures * * *" In
areas where accumulated sediments
may be contaminated, district engineers
can exercise discretionary audiority to
.-..require an individual permit and require
testing to determine if special
techniques are required for the
excavation and disposal of die
accumulated sediment.
Some commenters objected to
modifying this NWP to authorize
sediment removal in the vicinity of
existing structures, especially in
docking areas. One commenter
requested diat die NWP include a
definition of die term "structure" to
clarify whether or not maintenance
dredging of marina basins and boat slips
is authorized by this NWP. One
commenter suggested diat die provision
for removing accumulated sediment in
front of existing structures appears, to
conflict with die prohibition against
maintenance dredging in paragraph (i)
of die proposed modification to diis
NWP. Several commenters also
recommended that die Corps limit the
number of times diis permit could be
used to prevent die cumulative impacts
of multiple sediment removal projects.
One commenter stated that removal of -
sediment from a drainage ditch in the
vicinity of an existing structure would
be considered maintenance of an
existing drainage ditch and would be
exempt from Section 404 permit
requirements in accordance with 33
... CFRPart323.4(a)(3).
We have changed the text of the
proposed modification of NWP 3 to
clarify that maintenance dredging for
riaation Is n:
authorized by this NWP, unless it is
specifically audiorized by paragraphs
(ii) and (iii) of the NWP for other
purposes. For example, this NWP can
authorize die removal of accumulated
sediment from'a water intake structure
in a marina basin. Maintenance
dredging qf existing marina basins or
boat slips may be authorized by NWP
35, NWP 19, regional general permits, or
individual permits. We believe that it is
unnecessary to limit die number of
times this NWP can be used to remove
accumulated sediments in die vicinity
of existing structures. The removal-of
accumulated sediments in die vicinity
of existing structures is unlikely to
result in more than minimal cumulative
adverse effects on die aquatic
environment. District engineers can
determine, dirough their review of
notifications, if repeated removal of
accumulated sediments at a particular
site results in more dian minimal
cumulative adverse effects on the
aquatic environment. For die purposes
of diis NWP. the term "structure" does
not include unconfined waterways and
channelized streams, except where die
channelized stream consists of a
concrete-lined channel. Aldiough the
maintenance of existing drainage
ditches is exempt under Section 404(f),
paragraph (ii) of NWP 3 authorizes the
removal of accumulated sediments in
die vicinity of existing structures tiiat
does not qualify for a Section 404(f)
exemption. Maintenance activities diat
are eligible for Section 404(f)
exemptions do not require die use of
this NWP.
Some commenters stated diat die
placement of rip rap to protect die
structure should be removed from this
NWP because diis activity can be
audiorized by odier NWPs. One
commenter believes diat die placement
of rip rap should not be audiorized by
diis NWP except in areas where it is
clearly necessary to protect public
structures. Odier commenters
recommended prohibiting die
placement of rip rap in areas inhabited
by submerged aquatic vegetation.
It is our intent to audiorize under
paragraph (ii) ail related activities for a
single and complete project diat have
minimal adverse effects on the aquatic
environment, ratiier than require the use
of multiple NWPs to audiorize diose
activities. The placement of rip rap at
die foot of die structure is often
necessary to protect the structure from
scour. If sediments are accumulating in
die vicinity of die structure, it is likely
diat die structure is subject to scouring
by die sediment load of die waterbody.
In areas with substantial movement of
sediment, it is unlikely that large
populations of submerged aquatic
vegetation will become established,
because the movement of sediments in
die bed of die waterbody often will not
allow submerged aquatic vegetation to
take root and grow in the waterbody.
Furthermore, the PCN requirement in
paragraph (ii) allows district engineers
to review all proposed removal of
accumulated sediments to ensure that
die adverse effects on die aquatic
environment are minimal. If a
substantial population of submerged
aquatic vegetation inhabits die vicinity
of the structure, district engineers can
exercise discretionary.audiority if the
adverse effects of sediment removal and
the placement of rip rap will be more
than minimal.
Some commenters stated -that the
removal of accumulated sediments from
publicly-owned transportation facilities
should be exempt from notification
requirements, and no PCN should be
required for sediment removal after
heavy storms or floods, because it is too
time consuming to obtain the required
cultural and biological clearances.
We believe diat die adverse effects on
die aquatic environment are the same,
regardless of whedier or not a
transportation crossing is privately or
publicly owned. The PCN requirement
is necessary to allow district engineers
to determine if die adverse effects of die
proposed work on the aquatic
environment will be minimal and
ensure diat prospective permittees will
not remove more sediment than
necessary. In die event of a heavy storm,
flood, or other natural disaster, die
Corps has emergency procedures in
place for expediting permit issuance for
activities related to repairing storm or
disaster damage.
Some commenters recommended
authorizing die use of minor cofferdam
systems in the NWP, without a PCN
requirement, when removing
accumulated sediments and debris in
accordance widi paragraph (ii) and for
activities in waters of the United States
associated with restoring damaged
uplands in paragraph (iii).
We disagree that this NWP should
include the use of cofferdams, because
NWP 33 can be used to audiorize
temporary construction, access,-and
dewatering activities diat may be
associated widi the activities audiorized
by this NWP. qombining NWP 3 with
NWP 33 for a single and complete
project is not contrary to General
Condition 15, provided die adverse
effects on the aquatic environment are
minimal.
Activities Associated with Restoration
of Uplands: Paragraph ftU> of the
proposed modification of NWP 3
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Authorizes discharges of dredged or fill
material into all waters of the United
Srates for activities associated with the
restoration of upland areas damaged by
a storm, flood, or other discrete event.
Many commenters stated that the
restoration of uplands should be
removed entirely from this NVVP
because it has nothing to do with the
maintenance of currently serviceable
structures and the Corps does not have
jurisdiction over any activity in
uplands. Many of diese commenters
believe that the Corps is asserting
jurisdiction over uplands and requested
the removal of paragraph (iii) from NWP
3. One commenter suggested that
instead of authorizing the project
proponent to rebuild an upland area to
"prerevent" conditions, the permittee
should only be audiorized to stabilize
the remaining uplands. Another
commenter objected to modifying NWP
3 to authorize the restoration of eroded
banks because bank erosion is a natural
process and there are no limits in the
NWP. This commenter believes that an
Individual permit should be required,
with conditions requiring die use of
coarse woody debris or odier
bioengineering mediods to prevent
further erosion of die bank.
The purpose of paragraph (iii) of this
NWP is to authorize diose activities in
waters of the United States diat are
associated with the restoration of
uplands damaged by a storm or odier
discrete event. The restoration of
uplands lost as a result of a discrete
natural event does not require a Section
404 permit, because that activity is
subject to the Clean Water Act Section
404(f) exemptions. However, some work
in waters of the United States may be
necessary to complete the restoration
work. It is this associated work in
waters of the United States that Is.
audiorized by this NWP. For example,
die permittee may want to install
structures to protect die restored
uplands or remove obstructions Iii -
waters of the United States in die
vicinity of the affected uplands.
Through paragraph (Hi) of diis NWP, we
are not attempting to regulate activities
In uplands. We agree that paragraph (iii)
requires clarification as to die extent of
die Corps jurisdiction for upland
restoration activities and we have
rewritten paragraph (iii) to state diat
NWP 3 audiorizes discharges "* * *
Into all waters of die United States for
activities associated widi die restoration
of upland areas damaged by a storm.
flood, or other discrete event * * *"
Paragraph (iii).of die proposed
modification does not authorize
associated with the replacement of
uplands lost through gradual erosion
processes; the loss of uplands must be
due to a specific event, jsuch as a
hurricane or flood. Permittees are
encouraged, but not required, to utilize
bioengineering methods to stabilize the
restored bank. i
One commenter objected to the
proposed paragraph (iii) of the NWP,
stating that previous conditions of the ,
site are too difficult to document. Some
commenters recommenced that the
Corps require the use of field evidence
to esdmat^ die prior extent of uplands,
such as contours adjacejnt to the
damaged area?,, or as-built plans for die
waterway to determine [the extent of
activities authorized by this NWP. Two
commenters suggested that paragraph
(iii) of NWP 3 should be applicable for
smaller events over a specific time
period (e.g., one year) rather than one
catastrophic event. !|
We have made die requirement for the
prospective permittee to provide
evidence to the District [Engineer to
justify die extent of the [proposed
restoration less stringent, to allow die
District Engineer more flexibility to
determine if a proposed activity can be
audiorized by paragraph (iii) of diis
NWP. Evidence of the pre-event extent
of uplands can be provided by a recent
topographic survey or photographic
evidence. District engineers may also
assess die surrounding landscape,
including field evidenc^, to evaluate die
extent of the proposed restoration and
determine if it complies widi die NWP.
The location of die ordinary high water
mark diat existed prior to the storm
event may be obvious when visiting the
site. We realize diat most property
owners will not have a recent
topographic survey showing die extent
of die uplands on their property.
Paragraph (iii) of the proposed
modification of NWP 3 [specifically does
not authorize die reclamation of lands
lost over ari extended pferiod of time due
to normal erosion processes. If die land
is subject to normal erosion processes,
' die landowner can prevent or reduce
further erosion through; bank
stabilization measures, jmany of which
are authorized by NWP i 13. If the
proposed bank stabilization measure
does not qualify for audiorization under
NWP 13, then die landowner can apply
for authorization by another NWP, a
regional general permit^ or an individual
permit. We will retain die provision of
the NWP to authorize only activities in
waters of die United States for
restoration of uplands lost due to
specific events, such as storms and
floods, and specifically exclude lands
For paragraph (iii) of the NWP, PCN
thresholds of 1/4 acre. 10 cubic yards,
and up to 200 linear feet of stream bed
were suggested by commenters and
some commenters recommended
requiring notification only for activities
in special aquatic sites. One commenter
recommended notification and agency
coordination for all activities authorized
under paragraph (iii).
In die July 1, 1998, proposal to modify
NWP 3, there was an inconsistency in
the notification requirements. In
subparagraph (c) of die proposed
modification, notification was required
for activities affecting greater than 1/3
acre of waters of die United States.
Subparagraph (e) of die proposed
modification stated diat notification is
required for all activities associated
with the restoration of uplands. We
have determined diat notification
should be required for all activities
audiorized under paragraph (iii) of diis
NWP, and have modified die NWP to
state that notification is required for all
activities authorized by paragraph (iii)
of NWP 3.
One commenter suggested that die
Corps reduce die amount of time
required to submit a PCN from one year
after die date of die damage to two or
three mondis. They believe that two or
three months is sufficient time for the
landowner to realize diat damage to
uplands has occurred due to a discrete
event and determine if restoration of die
uplands will be done by the property
owner. Another commenter suggested
diat while a 12-mbndi time limit after
the damage event may be enough time
to plan restoration, it does not provide
enough time to obtain financing for the
restoration effort Some commenters
recommended requiring compensatory
mitigation at a 1:1 ratio for activities
audiorized by paragraph (iii) of diis
NWP.
Although landowners are usually
immediately aware diat diey have lost
uplands due to a storm, flood, or other
discrete event, we believe that they
should be allowed one year to
determine if diey want to restore the lost
uplands and submit a notification to 'die
District Engineer. After a catastrophic
event, many landowners require time to
recover from the event and conduct
repairs to dielr homes and other
structures. Restoration of their land is
often less urgent and die landowners
should be allowed adequate time to
carefully plan tiieir upland restoration
efforts. It should also be noted diat die
one year deadline. In paragraph (iii) of
die NWP applies only to the notification
requirement and that die permittee has
two years to start die restoration work
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39291
yo.irs should be an adequate amount of
r;me to conduct the upland restoration
activity. .
. Since the purpose of paragraph (iii) is
to authorize activities in waters of the
United States associated with the
restoration of uplands lost due to a
storm event, in most cases
compensatory mitigation should not be
required because the purpose of the
work is to return the area to
approximately the same conditions that
existed prior to the storm event.
Activities in waters of the United States
associated with' the restoration of
uplands typically do not result in more '
" than minimal adverse effects on the' •' '-
aquatic environment and should not
require compensatory mitigation.
Carefully planned and implemented
restoration efforts may benefit the
overall aquatic environment by
repairing the damaged areas and
reducing sediment loads to thie
waterbody, thereby improving water
quality. As with all NWPs, district
engineers may require compensatory
mitigation to ensure that the adverse
effects of the work on the aquatic
environment are minimal, but we
believe that compensatory mitigation
should not be required in most cases. .
. To make NWP 3 easier to understand,
we are proposing to combine all of the
conditions in subparagraphs (a) through
(e) and subparagraph (h) of paragraph
(iii) to form a single paragraph. We have
also added a note at the end of this NWP
to clarify that NWP 3 authorizes repair,
rehabilitation, or replacement activities
that do not qualify for the Section 404(f)
exemption for maintenance.
This NWP is subject to the
requirements of proposed General
Conditions 25 and 26. General
Condition 25 requires the prospective
permittee to notify the District Engineer
in accordance with General Condition
13 for activities in designated critical
- resource waters, including wetlands
adjacent to those waters. The District
Engineer may authorize NWP 3
activities in designated critical resource
waters and adjacent wetlands if the
adverse effects on the aquatic
environment are no more than minimal.
General Condition 26 does not prohibit
the use of this NWP to authorize
discharges resulting in the loss of
greater than 1 acre of impaired waters,
including adjacent wetlands. However,
NWP 3 activities in impaired waters and
adjacent wetlands require notification to
the District Engineer in accordance with
General Condition 13. The proposed
work can be authorized by NWP 3 if the
permittee demonstrates to the District
Engineer that the work will not result in
f" tr-f-Vl^f" J TJ. -r. -, T j- -,-, -, „ |- j«.f kt, *. t_ -J
In response to a PCN, district
engineers can require special conditions
on .1 case-by-case basis to ensure that
the adverse effects on the aquatic
environment are minimal or exercise
discretionary authority to require an
individual permit for the work. This
NWP, as with any NWP, provides for
the use of discretionary authority when
valuable or unique aquatic areas may be
affected by these activities.
7. Outfall Structures and Maintenance
In the July 1, 1998, Federal Register
notice, the Corps proposed to modify
this NWP to authorize the removal of
accumulated sediments from outfall and.
intake structures and associated canals.
All of the original terms and limitations
of NWP 7 have-been retained. Numerous
commenters expressed their support for
the proposed modifications to NWP 7. A
number of commenters objected to the
inclusion of excavation activities in
associated canals and impoundments
and questioned whether such activities
are related and similar in nature. A
couple of commenters questioned-the
need for the proposed modification.
Some commenters requested acreage
and cubic yardage limits for the
additional activities authorized by the
proposed modification of NWP 7.
Several commenters recommended
restricting excavation in wetlands.
Outfalls, intakes, 'and associated
canals accumulate sediment and require
periodic excavation or maintenance
dredging to restore flow capacities to the
facility. Most of the dredging is required
in the vicinity of intake structures and
their canals because circulation patterns
result in the deposition of sediment in
these areas. This sediment must be
removed to ensure that the facility has
an adequate supply of water for. its
operations. Water discharged from
outfall structures usually has little or no
sediment load and maintenance
dredging is not often required in these
areas. In situations where a utility
company's intake or outfall canal is also
used by barges to travel to the utility
facility, part (ii) of the proposed
modification of NWP 7 will allow
continued access by those barges
because the removal of accumulated
sediments will return the intake or
outfall canal to its originally designed
dimensions and restore its navigable
capacity.
We believe that authorizing some
dredging or excavation to maintain the
effectiveness of the outfall or intake
structure is necessary and an integral
part of this NWP. This NWP is
conditioned to authorize only the
minimum work necessary to maintain
permittee to provide the District
Engineer with information on the design
capacities and configuration of the
intake or outfall structure.
impoundment, or canal. The
prospective permittee will also be
required to submit a delineation of
affected special aquatic sites with the
PCN to allow district engineers to better
assess potential adverse effects on the
aquatic environment, especially in
vegetated shallows that may occur in
the canal or in the vicinity of the intake
or outfall structure. No acreage limits-
have been placed upon this NWP. Most
activities authorized by this NWP will
take place in existing canals, which
have been repeatedly dredged and
maintained and often support some
kind of industrial or commercial activity
for public benefit. Furthermore, existing
deposit areas for the dredged or
excavated sediment will typically be
present and available for use. Where
maintenance dredging or excavation is
proposed, notification is required and
the District Engineer can exercise
discretionary authority if the adverse •
effects on the aquatic environment will
be more than minimal. Compensatory
mitigation" will also be required where
appropriate, but in most cases we -
believe that compensatory mitigation
should not be required for activities
authorized by part (ii), since it is a
maintenance'activity. Division
engineers can also impose regional
conditions on this NWP to add limits to
the NWP or restrict or prohibit its use
in certain waterbodies. ' .
Several commenters supported the
proposed notification requirements.
Several commenters recommended
requiring-notification for all activities
whereas other commenters suggested
specific distance and acreage thresholds
for notification.
We are proposing to retain the
notification requirement to allow
district engineers to review all activities
authorized by this NWP. Evidence of the
original design capacity and
configuration of the facility must be
submitted with the notification. This
information allows district engineers to
review the proposed work to ensure that
the removal of sediment is for
maintenance, not new dredging or
.excavation.
Two commenters stated that irrigation
and farm ponds should be removed
from the proposal as they are not related
to outfalls, while many commenters
objected to the inclusion of excavation
in small impoundments under this <
NWP. Another commenter stated that
the maintenance of water treate: - -> *
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ponds, is exempt from Section 404
permit requirements.
In the July 1. 1998.'Federal Register
r.oflce. we stated that the proposed
modifications to NWP 7 could be used
to authorize the removal of accumulated
sediments from intake and outfall
itructures in small impoundments, such
as irrigation ponds and farm ponds.
This statement is in error, since the
construction and maintenance of farm.
stock, and irrigation ponds does not
require a Section 404 permit (see 33
CFR Part 323.4(a)(3)). provided the work
does not trigger the recapture provision
of Section 404(0(2) of the Clean Water
Act (see 33 CFR Part 323.4(c)). The
removal of sediments from small
impoundments is limited to the
excavation of sediment around the
Intake or outfall structure, if that
activity Is not exempt under Section
404(f). Water treatment facilities may be
constructed waters of the United States,
and possibly Section 10 waters. The
proposed modification of NWP 7
authorizes removal of accumulated
sediments in the vicinity of Intake and
outfall structures constructed in waters
of the United States for water treatment
facilities.
One commenter opposed modifying
NWP 7 to authorize activities in non-
tidal waters, believing that this would
open up thousands of acres of wetlands
and streams to destruction. One
commenter stated that since the
proposed modification had no
quantitative limits for impacts, this
NWP could cause significant and
unmitigated individual and cumulative
adverse impacts. Two ccrmmenters-
stated that no activities in tidal areas or
areas adjacent to, or contiguous with,
tidal waters should be authorized by
this NWP. Two commenters further
requested that outfall structures
associated with large facilities, such as
aquaculture facilities or power plants,
should be reviewed under an individual
permit.
NWP 7 is applicable in all waters of
the United States, including navigable •
waters. The proposed modification of
NWP 7 authorizes only the construction
of outfall structures and associated
intake structures and maintenance
dredging or excavation of accumulated
sediments in die vicinity of outfall and
intake structures and associated canals.
These activities will not result in the
destruction of diousands of acres of
wetlands and streams, because most
outfall structures are fairly small and
the authorized excavation or dredging
activities are only for maintenance. The
removal of accumulated sediments from
an existing intake or outfall structure or
wetlands and streams to destruction.
Furthermore, since the authorized
removal of accumulated 'sediment will
be limited to the minimiim necessary to
restore the facility to its jjriginai design
capacity, the ad\nr~e effects on the
aquatic environment wil;l usually be
minimal. The District Engineer will
have die opportunity to review all
proposed NWP 7 activities on a case-by-
case basis and will be ablle to add any
necessary conditions, including
compensatory mitigation" requirements,
to ensure that this NWP jaudiorizes only
those'activities with minimal adverse
effects on the aquatic environment,
individually or cumulatively. For those
activities that may result in more than
minimal adverse effects on the aquatic
environment, district engineers will
exercise discretionary audiority. This
NWP can be utilized for loutfalls-
associated with aquacultiure or power
plants. All outfalls proposed under this
NWP must be authorizeci. exempted, or
odierwise in compliance with
regulations issued under die National
Pollutant Discharge Elimination System
program. |
Several commenters suggested adding
restrictions during fish spawning and
nesting periods. One commenter
recommended adding two additional
conditions because of potential impacts
to manatees. Anotiier commenter
recommended that diis permit contain a
condition requiring that [shorelines
affected by activities authorized under
this permit should be reyegetated.
General Condition 20 states that
activities including structures and work
in navigable waters of the United States
or discharges of dredged or fill material,
in spawning areas during spawning
seasons must be avoided to the
maximunvextent practicable. This
condition further states that activities
that physically destroy ijmportant
spawning areas are not authorized; In
addition, limitations in specific waters
for certain species are more
appropriately addressed as regional
conditions or case-specific special
conditions. Activities that may affect
Federally-listed endangered or
threatened species or designated critical
habitat must comply with General
Condition 11. Districts are encouraged
establish local operating procedures to
provide better protection for these
species and their critical habitat
General Condition 3, $oil Erosion and
Sediment Control, requires the
permittee to utilize appropriate soil
erosion and sediment controls during
construction and permanently stabilize
the site at the earliest practicable date.
This requirement may be fulfilled
methods. In addition, following project
completion, some areas may naturally
revegetate. We do not believe that it is
necessary to incorporate an additional
requirement into die NWP. Where
necessary, revegetation can be required
by district engineers on a case-by-case
basis through special conditions or
regional conditions. In some cases,
mitigation requirements may also
address this issue, particularly where
die permittee is required to establish
and maintain a vegetated buffer.
One commenter statea that NWP 7
should clearly state that it authorizes
removal of accumulated sediment in
and around intake pipes and not just
around intake pipes. Several •
commenters requested that this NWP
luthorize removal of accumulated
sediment in the vicinity of intake and
outfall structures for engineered flood
control facilities, including dams.-flood
control facilities, and large reservoirs.
One commenter asked why NWP 7 does
not authorize die construction of intake
structures only, because diey result in
similar adverse effects on die aquatic
environment as outfalls.
The proposed modification of this
NWP audiorizes die removal of
sediments blocking or restricting outfall
or intake structures. This includes
sediment removal from inside of die
intake structure. This NWP does not
audiorize the construction of new canals
or die removal of sediment from die
head works of large dams, flood control
facilities, or large reservoirs. Individual
permits, regional general permits, or
other NWPs such as NWPs 19 or 31,
may audiorize these arctivities. NWP 7
does not audiorize die construction of
intake structures widiout associated
outfall structures because of the
potential for more than minimal adverse
effects on the aquatic environment
where an intake structure may be
constructed in a waterbody to wididraw
water. If die water is not returned to die
waterbody through an outfall structure,
diere may be more than minimal •
adverse effects to aquatic organisms and
local water supplies, especially in-arid
regions of the country.
This NWP is subject to proposed •
General Conditions 25 and 26, which
will reduce its applicability. General
Condition 25 prohibits die. use of this
NWP to authorize discharges into
designated critical resource waters and
wetlands adjacent to diose waters.
General Condition 26 prohibits die use
of this NWP to authorize discharges
resulting in the loss of greater than 1
acre of impaired waters, including
adjacent wetlands. NWP 7 activities
resulting in die loss of 1 acre or less of
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39293
•.votlands. are prohibited unless
prospective permittee demonstrates to
the District Engineer thafthe activity
will not result in further impairment of
the waterbody.
In response to. a PCN, district
engineers can require speci.al conditions
on a case-by-case basis to ensure that
rhe adverse effects on the aquatic
environment are minimal or exercise
discretionary authority to require an
individual permit for the work. The
issuance of this NWP, as with any NWP,
provides for the use of discretionary
authority when valuable or unique
aquatic areas may be affected by these
activities. ' •
12. Utility'Line Activities
In. the July 1, 1998', Federal Register
notice, we proposed to modify this NWP
to authorize activities commonly
associated with utility lines, such as the
construction of electric or pumping
substations, foundations- for overhead
utility line towers, poles, and anchors,
and access roads. Many of these
activities may have been authorized by
NWP 26.
General comments: We received many
comments addressing the proposed
changes to NWP 12. Some commenters
suggested leaving NWP 12 unchanged. .
Other comments ranged from
supporting the issuance of the proposed.
modifications of NWP 12 to
recommending the revocation of NWP
12. Many commenters concurred with
the proposed acreage limits and PCN
thresholds for the additional activities
included in this NWP. Some
commenters proposed higher acreage .
limits arid PCN thresholds. Other
commenters recommended lower
acreage limits and PCN thresholds for
the additional activities. Many
commenters stated that the proposed
changes would improve the efficiency of
the NWP program and prevent the
increase of regulatory burdens, without
causing more than minimal adverse
effects on the aquatic environment
Many commenters expressed
opposition to the expansion of NWP 12
to authorize utility line substations,
foundations for utility towers, and
permanent access roads. These
commenters stated that this proposal .
would be a^major expansion of the
limits of NWP 12, resulting in
significant losses of wetlands and other
waters of the United States. Several
commenters stated that there would no
longer be any incentive to locate these
facilities in uplands because the
proposed modification would authorize
their construction in wetlands. Some
comrnenters believe that concerns
' regarding individual and cumulative
adverse effects on the aquatic
environment resulting" from the
modification of NWP. 12 could be
addressed through the regional
conditioning process. "
We believe the NWP terms, limits,
and notification requirements, will help
to ensure that the proposed
modification of NWP 12 authorizes only
those utility activities with minimal
adverse effects on the aquatic
environment. The review of PCNs by
district engineers and the regional
conditioning process will ensure that
the NWP authorizes only those activities
with minimal adverse effects on the
aquatic environment and will address
regional and watershed concerns. The
notification provisions of NWP 12 will
allow district engineers to exercise
discretionary authority for chose utility
line activities that may result in more
than minimal adverse effects on the
aquatic environment.
One commenter recommended
•combining utility lines with roads and
other linear projects into one NWP
permit and authorizing other utility line
activities that are not linear in nature,
such as substations and foundations for
overhead utility lines, by another NWP
because they are more similar in nature.
We believe that utility line
substations, foundations for utility line
towers, and permanent access roads for
utility line maintenance are more
appropriately authorized by NWP 12,
instead of a separate NWP for these .
activities, because these activities are
integral to single and complete utility
line projects and the adverse effects for
these activities should be considered
under one NWP. All of the activities
identified in NWP 12 are associated
with typical utility projects and are
similar in nature to other utility
projects. We have changed the title of
this NWP from "Utility Activities" to .
"Utility Line Activities" to better reflect
the related nature of these activities for
utility line construction, maintenance,
and operation. We also believe that most
of these projects, when conducted
within the specified limits of the NWP,
will have no more than minimal adverse
impact on the aquatic environment.
Finally, in those cases where proposed
activities may have more than minimal
adverse effects on the aquatic
environment, we believe that the
notification and regional conditioning
processes will serve to ensure that the
NWP authorizes only utility line
activities with minimal adverse effects
on the aquatic environment.
One commenter made the following
recommendations concerning NWP 12:
(1) The NWP should apply only to
previously developed areas and well-
established utility corridors: (2) the
clearing of forested wetlands should be
excluded from this NWP: (3) the NWP
should be excluded from wetlands in
migratory corridors or near wetlands
heavily used by migratory birds; and (4)
the NWP should contain a provision
requiring the planting of native species
in disturbed areas and the removal of
noxious and invasive plant species.
Another commenter recommended
excluding the use of NWP 12 in special
aquatic sites and endangered species '
habitat. • . • ' •
We do not agree with the
recommendations in the previous
paragraph. NWP 12 authorizes only
those utility activities that result in ...
.minimi! adverse effects oh the aquatic
environment, individually or
cumulatively. It is unnecessary and
impractical to limit NWP 12 only to
activities in existing utility corridors. If
the proposed utility line will result in •'
more than minimal adverse effects on
the aquatic environment, district
engineers can exercise discretionary
authority and require an individual
permit. Regional conditioning or case-
by-case discretionary authority is the
best mechanism to address potential
adverse effects to wetland habitat.
Regional conditions can also address •
concerns for revegetating areas
temporarily affected by the authorized
work. District engineers can add special
conditions to NWP 12 authorizations to
specify' certain plant species to be
planted in disturbed areas. General
Condition 11 adequately addresses
potential effects of the use of NWP 12
on Federally-listed endangered or
threatened species or designated critical
habitat.
Utility lines: One commenter
recommended limiting NWP 12 to
utility lines that are less than 10 miles
in length and six inches in diameter,
with an acreage limit of 2 acres. Other
recommended acreage limits included 1
acre and '/3 acre. One commenter
expressed concern about allowing
sidecast material to remain in waters of
the United States for up to six months,
particularly in tidally influenced waters.
To minimize adverse effects to marine
fisheries, this commenter recommended
conditioning NWP 12 to require die
permittee.tb leave gaps insidecast
material at minimum intervals of 500
feet and prohibiting the placement of
sidecast material in a manner that
blocks natural surface water flows.
Another commenter recommended
prohibiting sidecasfing of material
during utility line maintenance
activities to protect unique wetland
functions. Some commenters questvoTied
the requirement that excess mate?
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must be removed to upland areas
smmediately upon completion of
construction and one recommended
rhat. In light of the recent Fifth Circuit
Court of Appeals ruling in American
Mining Congress, ec al, v. Corps of
Engineers, the Corps move die sentence
concerning excess material to paragraph
ft) of NWP 12. This commenter also
srated that they assume that this
requirement is intended to apply only to
soil or other material that is dredged or
excavated in significant quantities and
redeposited at another location within a
water of the United States, and not to"
clearing vegetation above ground.
Regional conditioning is the best
mechanism for placing acreage limits on
utility line construction, if division
engineers believe that die cumulative
adverse effects of utility line
construction may result in more than
minimal adverse effects on the aquatic
environment wldiin a particular region.
Regional conditions are also the best
way to address concerns regarding die
maximum amount of time sidecast
material should remain in waters of the
United States and whether or not gaps
or culverts should be placed in the
temporary piles of excavated material to.
maintain surface water flows. In
addition. General Condition 21,
Management of Water Flows, requires
that die permittee conduct the work so
that preconstruction water flow patterns
are maintained to die maximum extent
practicable after completion of die
authorized work.
The requirement for removing excess
fill materials upon completion of
construction will be retained in diis
NWP. This NWP authorizes temporary
fills to install die utility line, such as
sidecasting into waters of die United
States during installation, provided die
permittee backfills die trench. Any
excavated material placed in waters of
die United States that is not used to
backfill the trench must be removed
upon completion of die work or it will
be considered a permanent fill requiring
a separate Section 404 permit. An
Important requirement to ensure that
activities audiorized by NWP 12 will
have no more than minimal adverse
effects on die aquatic environment is die
requirement to maintain
preconstruction contours and elevations
as close as possible after completion of
die audiorized work. Clearing vegetation
by cutting it above die soil surface does
not require a Section 404 permit, as long
as diere is no discharge of dredged or-
fill material into waters of die United
States. In addition, if die proposed work
is in a forested wedand, any
mechanized landclearing which results
will require a PCN. The Corps believes
it is necessary to retain'this provision to
ensure that diis NWP authorizes
activities with only minimal adverse
effects on die aquatic environment.
One commenter recohmehded that
the NWP contain a requirement that all
wastewater lines have no-seam pipes
beneath perennial or iritermittent
streams to reduce die potential for
untreated wastewater leaking into these
streams. Another commenter ,,
recommended conditioning NWP 12 to
require die installation of anti-seep
collars at die downstream wetland
boundary and every 150 feet up the
gradient until die utility line,exits die
wetland at the upstrearii or up-slope end
to prevent die lateraldraining of die
wedand caused by die gravel bed
beneath die utility line.;0ne commenter
recommended requiring perpendicular
(between 75 and 105 degrees) stream
crossings. [
General Condition 2, Proper
Maintenance, requires that permittees
maintain all authorizedjstructures or
fills to ensure public safety. Permittees
must also comply w.idi Section 402 of
die Clean Water Act, which requires a
permit for die discharge* of effluent inta
waters of die United States. Wastewater
lines must be designed and maintained
so that they do not leak |untreated
wastewater into waters of die United
States. NWP 12 also includes a
requirement dial a utility line may not
be constructed in such a manner as to
drain waters of the United States (e.g.,
backfilling widi extensive gravel layers,
which may create a french drain effect,
and failing to take appropriate measures
to prevent die lateral draining of a
wetland). |
We believe diat perpendicular stream
crossings are environmentally preferable
in many situations. HoWever, these
types of crossings are not always
feasible and we have determined diat it
is better to require notification where a
utility line is proposed to be placed
widiin a water of die United States and
runs parallel to a stream bed widiin diat
jurisdictional area. These projects will
be reviewed on a case-by-case basis to
determine if die activities would have
more than minimal adverse effects on
die aquatic environment In addition,
regional conditions can iaddress
concerns about certain activities and/or
impacts to certain waters of die United
States. i
Many commenters concurred widi die
statement in die preamble diat die
installation of subaqueous utility lines
in waters of die United States should
not be considered as resulting in a loss
of waters of die United States if die area
line is the minimum necessary and -
preconstruction contours and elevations
are restored after construction. A
number of commenters expressed
concern about adverse effects associated
with utility projects and believe that
compensatory mitigation should be
required to offset those adverse effects.
Some commenters also questioned why
the term "loss" only applies to
permanendy affected waters of die
United States. One commenter stated
.that the term "loss" should apply to die •
clearing of forested wetlands for die
construction of-overhead power
transmission line's where die forest will
not be allowed to grow back. •
.We believe that die installation.of
. utility lines diat results only in
temporary adverse effects on waters of
the United States should not be
considered a loss if preconstruction
contours and elevations are restored
after construction and there are no
permanent adverse effects to the aquatic
environment resulting from the activity.
While temporary adverse effects to
water quality, fish and wildlife habitat,
and'other components of the aquatic
environment may result, die areas
typically return to preconstruction
conditions if die terms and conditions
' of die NWP are met. In diese cases,
compensatory mitigation should not be
required. However, should die
installation of a utility line result in the
permanent conversion of a forested
wetland to anodier wetland type in a
permanendy maintained right-of-way,
compensatory mitigation may be
required by the District Engineer if it is
necessary to ensure diat die audiorized
work will result in minimal adverse
effects on die aquatic environment
Finally, in those cases where the
proposed work may result in more dian
minimal adverse impact on the aquatic
environment, we believe die notification
and regional conditioning processes will
ensure diat die NWP audiorizes only
activities with minimal adverse effects
on the aquadc environment. In addition,
compensatory mitigation can be
required for any NWP 12 activity
requiring a PCN to ensure diat the
adverse effects of die audiorized work
on die aquatic environment are
minimal, individually or cumulatively.
The NWP akeady contains provisions
addressing die clearing of forested
wedands. District engineers will
determine if compensatory mitigation
should be required for die conversion of
a forested wedand to an emergent or
scrub-shrub wetland in a maintained
utility line corridor.
In die first sentence of paragraph (i),
we have stated diat NWP 12 authorizes
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39295
lines in addition to their construction.
Since NWP 12 can be used to authorize
the construction of utility lines in both
Section 10 and Section 404 waters, we
have added the phrase "in all waters of
the United States" to the text of.
paragraph (i).
Utility line substations: Some
cdmmenters recommended that die
Corps withdraw this part of the
proposed modification of NWP 12.
Many commenters recommended higher
acreage limits; ranging from 2 to 3 acres.
A number of commenters recommended
lower acreage limits. One commenter
requested that the Corps clarify what is
meant by the term "pumping
substations" and suggested using the
term "compressor station" instead. '
We believe that die 1 acre limit for die
construction of utility line substations is
appropriate to audiorize die
construction of most utility line
substations witii minimal adverse
effects on die aquatic environment.
However, we have lowered the PCN
threshold for the construction of utility
line substations to 1A acre, to make it
more consistent widi the odier proposed
new and modified NWPs. We also agree
diat some clarification is appropriate to
specify the types of utility line
substations are audiorized by paragraph
(ii). The term "utility line substations"
includes power line substations, lift
stations, pumping stations, meter
stations, compressor stations, valve
stations, small pipeline platforms, and
odier facilities integral to die operation
of a utility line.
For die proposed modification of
NWP 12, the construction or expansion
of utility line substations in waters of ,
the United States is limited-to non-tidal
waters, excluding non-tidal wedands
adjacent to tidal waters. We have added
this language to paragraph (ii) to clarify
the applicable waters for utility line
substations audiorized by NWP 12, and
to make diose applicable waters
consistent widi most of the odier
proposed NWPs.
Foundations for overhead utility line
towers, poles, and anchors: One •
commenter recommended eliminating
the requirement to use separate footings
for utility line towers where feasible.
Anodier commenter noted that in
certain situations where hurricanes,
high wfnds, and lightning occasionally
cause damage to power line structures
' and conductors, it is better to construct
a single pad beneadi die footings. The
commenter requested modificadon of
die NWP to allow single pad fills as long
as they result in the loss of less tfian Vb.
acre of waters of die United States.
We have decided to retain the
orooosed language because it provides
flexibility. The phrase "where feasible"
does not prohibit die construction of a
single pad-to support the utility line
tower; it merely encourages die
construction of separate footings. This
phrase provides district engineers widi
die flexibility to use NWP 12 to •
authorize die construction of single
pads where there are concerns due to
hurricanes, high winds, and odier
dangerous conditions. District engineers
can require die permittee to provide
justification as to why a single pad
should be constructed instead of
separate footings. The only requirement
is that the/pads re_sult in minimal
adverse effects on die aquatic
environment. District engineers can
require compensatory mitigation for die
losses of waters of the United States
resulting from die construction of single
pads for overhead utility line towers.
Since die proposed modification of
NWP 12 can be used to authorize the
construction of foundations for
overhead utility line towers, poles, and
anchors in both Section 10 and Section
404 waters, we have added the phrase
"in all waters of the United States" to
die text of paragraph (iii).
Access roads: Many commenters
recommended increasing die acreage
limit for permanent access roads to 2 or
5 acres. One commenter recommended
limiting permanent access roads to l/s
acre of loss of waters of die United
States and a maximum widdi of 15 feet.
Several commenters recommended
excluding permanent access roads from
this NWP. One of diese commenters
objected to die inclusion of permanent
utility access roads because access roads
fragment .die landscape, which can
adversely affect fish and wildlife habitat
and die water quality functions of many
wedand ecosystems. Another
cdmmenter requested diat the NWP
contain a provision requiring die
permittee to .submit justification
explaining why permanent access roads
are needed. One commentensuggested
diat die PCN contain a requirement for
die submission of an engineering
analysis demonstrating diat the culvert
size for die permanent access road is
adequate, based on watershed acreage
and the appropriate rainfall coefficient.
One commenter expressed concern
about inconsistent statements in
paragraph (iv) and die preamble
discussion relating to the effects of die
access roads on subsurface flows. This
commenter questioned whedier the
Corps had die audiority to regulate
subsurface waters. A commenter asked
die Corps to clarify the meaning of
"minimum width necessary" as well as
the acceptable length of road, and
questioned who would make such
determinations. Further, diis commenter
asked who decides whedier
preconstruction contours are
maintained as near as possible. One
commenter recommended adding a term
to the NWP requiring diat access roads
be constructed widi pervious surfaces.
We believe that die I acre limit for
permanent access roads is appropriate
to ensure that the NWP authorizes only
diose permanent access roads diat result
in minimal adverse effects on die
aquatic environment. The PCN
threshold remains the same as proposed
in die July 1, 1998, Federal Register
notice. The construction of permanent
access roads for utility line maintenance
has die same effects on landscapes as
die construction of-utility line right-of-
ways because the access roads are
usually constructed within the right-of-
way. We do not believe diat it is
necessary for the applicant to provide
justification for die construction of
permanent access roads or an
engineering analysis demonstrating die
appropriateness of die culvert size. For
diose activities that require notification,
district engineers will review the PCN
and determine if die construction of
permanent access roads will result in
more dian minimal adverse effects on
the aquatic environment. Division
engineers can also regionally condition
NWP 12 to ensure diat die construction
of permanent access roads will result in
minimal adverse effects.
We agree that we'do not have die .
audiority under Section 404 of die Clean
Water Act to regulate groundwater
flows. Therefore, we have deleted die
reference to subsurface flows in
paragraph (iv). The District Engineer
determines if die access road is the
minimum widdi necessary, as well as
die appropriate length of access road,
and if die access road will result in
minimal adverse effects on die aquatic
environment. Division engineers can
regionally condition NWP 12 to specify
maximum widdis and lengths of
permanent access roads diat can be
audiorized by this NWP. In cases where
a PCN is required, die Corps will review
die proposed work for compliance widi
die terms and conditions of die NWP. If
a certain activity does not meet die
terms and.conditions of die NWP,
anodier form of audiorization must be
obtained.
For die proposed modification of
NWP 12, die construction of permanent
access roads for die construction or
maintenance of utility lines in waters of
die United States is limited to non-tidal
waters of die United States, excluding
non-tidal wetlands adjacent to tidal
•waters. We have added this language to
paragraph (iv) to clarify the applicar -"•
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waters for utility line access roads
authorized by NWP 12. We have also
added a provision stating diat
permanent access roads must be
constructed with pervious" surfaces.
Notification Requirements: N
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Many commenters made
recommendations for regional
conditions.
We recognize that the regional
conditioning process is a very important
element in the implementation of the
new and modified NWPs but that
specific recommendations for regional
conditions must be addressed by
division and district engineers.
This NVVP is subject to proposed
General Conditions'25, 26,-and 27.
which will substantially reduce its
applicability. General Condition 25
prohibits the use of this NWP to
authorize discharges into designated
critical resource waters and wetlands
adjacent to those waters. General
Condition 26, prohibits the use of this'
NWP to authorize discharges resulting
in the loss of greater than 1 acre of
impaired waters, including adjacent
wetlands. NWP 12 activities resulting in
the loss of 1 acre or less of impaired
waters, including adjacent wetlands, are
prohibited unless prospective permittee
demonstrates to the District Engineer
that the activity will not result in further-
impairment of the waterbody. General
Condition 27 prohibits the use of NWP
12 to authorize permanent, above-grade
wetland fills in waters of the United
States within the 100-year floodplain,
unless the prospective permittee clearly
demonstrates thatthe project and
associated mitigation will not decrease
the flood-holding capacity and no more
than minimally alter the hydrology,
flow regime, or volume of waters
associated with'the 100-year floodplain.
In response to a PCN, district
engineers can require special conditions
on a case-by-case basis to ensure that
the adverse effects on the aquatic
environment are minimal or exercise
discretionary authority to require an
individual permit for the work. The
issuance of this NWP, as with any NWP,
provides for the use of discretionary
authority when valuable or unique
aquatic areas may be affected by these
activities. .
14. Linear Transportation Crossings
In the July 1, 1998, Federal Register
notice, we proposed several changes to
this NWP. We proposed to modify this
NWP to have a larger acreage limit for
public transportation crossings, such as
roads, railroads, and airport runways, in
non-tidal waters of the United States,
excluding non-tidal wedands
contiguous to tidal waters. We also
requested comments on whedier the
acreage limit for public transportation
crossings in non-tidal waters should be
1 or 2 acres. For private crossings and
public linear transportation crossings In
tidal waters, or non-tidal wetlands
contiguous to tidal w.aters^we djd not
propose tofchajige the original acreage
limits of NWP"l4. •
One commenter stated that the NWP
should not authorize public
transportation crossings. A number of
commenters said that the distinction
between public and private
transportation crossings is unnecessary.
Many commenters requested that the
Corps clarify what is meant by private
and public transportation crossings.'
Several commenters asked whether
roads to residential developments
would be considered public or private.
NWP 14 previously authorized both
public and private road crossings. Due
to public interest factors, we proposed
to increase the acreage limit for public
transportation crossings for diis NWP,
with acreage limits based on the types
of waters affected by the work. For the
purposes of this NWP, a private crossing
is restricted to the use of a particular
person or group, and is not freely
available to the public. An example is
a driveway crossing a stream to provide
access to a single family residence. A
public crossing is a crossing which is
intended to serve all citizens, rather
than a specific limited group.- As further
clarification, if die responsibility for the
highway or road maintenance and repair
is a county, state, or government entity,
the road will be considered public. To
increase protection of the aquatic
environment, we are proposing to
change the applicable waters for linear
transportation crossings as follows: (1)
Public linear transportation crossings
constructed in non-tidal waters,
excluding non-tidal wedands adjacent
to tidal waters, (2) public linear
transportation crossings constructed in
tidal waters and non-tidal wetlands
adjacent to tidal waters, and (3) private
linear transportation crossings
constructed in all waters of die United
States.
Many commenters requested that
NWP 14 remain unchanged. Several
commenters suggested that the acreage
limit for public projects should be
limited to 1 acre and die lengdi of die
crossing to no more than 200 feet. Odier
commenters stated that die proposed 2
acre limit for public transportation
crossings is too low and would prefer
die original 10 acre limit diat NWP 26
had prior to December 1996. Many
commenters said diat 2 acres is
sufficient for public highways, which
often have 2 to 4 lanes. Several
commenters stated diat public linear
transportation crossings should have no
acreage limit while odiers said die limit
is too high and diat die proposed
modification should be wididrawn.
Another commenter recommended
removing the 200 linear foot limit for
private crossings and replacing it with
a 500 linear foot limit.-
We have carefully considered all
comments on the proposed acreage
limits. The existing limit for private
crossings is retained at Vh acre and 200
linear feet. For public projects in non-
tidal waters, excluding non-tidal
wetlands adjacent to. tidal waters, we
have decided die proposed 1 acre limit
for public linear transportation
crossings is appropriate to authorize
most public linear transportation
crossings diat have minimal adverse
effects on die aquatic environment in
non-tidal waters. It is important to note
that each crossing of a separate
waterbody is a single and complete
project (see 33 CFR Part 330.2(i)). The
Vs acre and 200 linear foot limits will
be retained for private linear
transportation crossings and public ,
linear transportation crossings in tidal ".
waters and non-ti4al wetlands adjacent
to tidal waters.
Some commenters asked why die
acreage limit for public projects was
higher than the acreage limit for private
projects. Many objected to die
differences in acreage limits. Several
commenters were concerned diat die
proposed modificadon establishes
different thresholds based upon whether
a project is private or public.
During our review of transportation
projects authorized by NWP 26, we
found diat diere were a substantial
number of public linear transportation
crossings with minimal adverse effects
on the aquadc environment.
Approximately 90% of the •
transportation projects audiorized by
NWP 26 during 1997 resulted in the loss
of less dian 1 acre of non-tidal waters.
The proposed modification of NWP 14
is intended to audiorize these types of
projects, since NWP 26 will be replaced
by the proposed new and modified
NWPs announced in this Federal
Register notice. Public linear
transportation crossings need to be
larger, because diey must have larger
capacities. Private crossings, on die
other hand, are typically small. Public
linear transportation crossings also
fulfill a greater proportion of public
interest factors, and die government
entities diat typically sponsor or build
diese projects have die resources and
experience necessary to design these
projects and provide necessary
compensatory mitigation, to ensure diat
these projects have minimal adverse
effects on die aquatic environment
Consequendy, diese projects are less
likely to be contrary to the public
interest Public transportation projects
often require detailed planning
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processes to document compliance with
NGPA. Section 404 of the Clean Water
Act. and many other applicable laws. As
a result, we have decided that it is
appropriate to impose a higher acreage
lirr.'.: for public linear transportation
pr;,>.*cts in non-tidal waters, excluding
non-tidal wetlands adjacent to tidal
waters.
Public roads serve the general public
and allow access for entire
communities. Other transportation
facilities, such as municipal airport
runways or railroads are constructed for
public transportation needs, and are
considered public if they are accessible
to the public as a whole. Railroad
crossings may be constructed by private
entitles, but may be used by public
transportation agencies for mass transit,
such as commuter rail services. As long
as these transportation facilities are
used by the general public, providing a
means of transportation for an entire
community, these linear transportation
crossings will be considered public for
the purposes of this NWP.
tvlany comments were received
regarding PCN thresholds. Several
commenters suggested that notification
should be required for all projects
authorized by this NWP. Some
commenters stated that the proposed
notification requirements were too
stringent and some wetland impacts
should be authorized without any PCN
requirements. These commenters stated
that the PCN requirement should be
consistent wtth the notification
requirements of NWP 12, and '
recommended that notification should
be required if the activity results in the
loss of more than- Vb acre of non-tidal
wetlands or the impact exceeds 500
linear feet in waters of the United
States. Anodier commenter said that the
PCN threshold should be raised to Vz
acre. One commenter stated the
notification requirements for public and
private linear transportation projects
should be the same. Another commenter
wanted to know how-Corps Districts
would identify areas of high value that
could trigger lower PCN thresholds.
To make the PCN thresholds of NWP
14 more consistent with the new NWPs.
the proposed notification threshold has
been modified. The proposed PCN
thresholds for public and private linear
transportation crossings are the same."
Notification will be required for
activities that result in the loss of greater
than 'A acre of waters of the United
States. Notification will also be required
for all activities that result in a
discharge into special aquatic sites,
including wetlands. We do not agree
that the PCN thresholds of NWP 14 •
should be the same as the PCN
thresholds of NWP 12 because the
activities authorized by these NWPs
• have different adverse [effects on the
aquatic environment. High value waters
will be identified throtjigh the regional
conditioning process. Division
engineers can regionally condition this
NWP to lower the PCN; threshold or
require notification for all activities in
specific high value waters.
Numerous commenters requested
clarification concerning what
constitutes a single and complete linear
project. Several commenters '
recommended that the Corps eliminate
the practice of piecemealing road
projects so that NWP Ijl authorizes each
separate wetland or stream impact along
the construction corriddr. Another
commenter suggested that the Corps
consider allowing the n the aquatic
environment, the Districjt Engineer will
assert discretionary audioriry and
require an individual permit Railroads
will typically be considered public
transportation because, as previously
discussed, a railroad may be constructed
by a private entity, but the tracks are
often utilized by the general public for
public transportation. As long as these
facilities are generally accessible to the
public, by providing a means of mass
transit or services for a community
railway crossings will be considered
public.
One commenter stated thai: regional
conditions should prohibit the
disruption of water Flows by requiring
culverts, bridges, etc. Another
commenter asked for clarification of the
terms in paragraph (g). of the proposed
NWP 14 modification. Another
commenter requested that applicants
provide detailed engineering
information on the crossings to ensure
' that they are designed properly.
General Condition 21, Management of
Water Flows, requires NWP activities to'
be designed and constructed to maintain
preconstruction downstream flow
conditions, to the maximum extent
practicable. Activities authorized by this
NWP should not result in moire than
minor changes to the hydraulic flow of
a stream and should not result in an
• increase in flooding upstream or
downstream of the crossing. Proposed
General Condition 27 also applies to
activities authorized by this NWP. To
construct the crossing, some v/ork in the
stream channel is necessary. Examples
include bank stabilization, the
placement of fill and culverts,
depressing the culvert into the stream
bed/etc. All of this work should take
place only in the immediate vicinity gf,,
the crossing. The construction of the
crossing should result in only minor
impacts to the hydraulic characteristics
of the stream. General Condition 9,
Water Quality, requires the permittee to
implement a water quality management
plan to ensure the work does not cause
more than minimal adverse effects to
the downstream aquatic system. In
general, where a state or tribal entity
requires such a plan, this requirement
will be considered fulfilled. If a water
quality management p.Ian is not required
by the state, the District Engineer must
decide if one is needed for the proposed
activity. We do not agree that applicants
should be required to provide detailed
engineering information concerning the
crossing. It is incumbent upon the
permittee to ensure that the crossing is
designed so that it complies with all of
die conditions of the NWP, especially
General Condition 21.
One commenter questioned why a
mitigation plan was required for public
linear transportation projects but not for
private crossings. Several commenters
asked whether compensatory mitigation
would be required for all crossings.
We have modified this provision of
NWP to require a mitigation proposal
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39299
for both public and private linear
transportation crossings. Paragraph (c)
of rhe proposed modification of NWP 14
requires the prospective permittee to
submit a mitigation proposal to offset
permanent losses of waters of the
United States and a statement
describing how temporary losses will be
minimized to the extent_practicable.
Many commenters objected to die
inclusion of attendant features to the
linear transportation project, such as
interchanges, stormwater detention .
basins, rail spurs, or water quality
enhancement measures in die NWP.
Many commenters approved the
inclusion of such features, and a couple
of commenters requested that the NWP
authorize non-linear features such as
vehicle maintenance or storage
buildings, parking lots,'train stations,
and hangars. One commenter said that
this NWP should not autiiorize new
transportation facilities, which typically
result" in significant indirect and
cumulative impacts;
Features integral to the crossing, such
as interchanges, rail spurs, stormwater
detention basins, and water quality
enhancement measures are autiiorized
by tills NWP. This requirement will
help ensure that the adverse effects of
the entire single and complete project
are considered. The attendant features
must be integral to the crossing,
however, and the combined loss of
waters of the United States for a single
and complete project cannot exceed the
acreage limit of this NWP. We are not
proposing to modify NWP 14 to
autfiorize non-linear transportation
activities, because these activities have .
greater potential to result in more than
minimal adverse effects on die aquatic
environment.
The proposed modification of this
NWP can authorize the construction of
new linear transportation crossings,
provided the proposed work results in
minimal adverse effects on'the aquatic
environment. The notification
requirements, the District Engineer's
ability to impose special conditions on
a particular activity, and the District
Engineer's ability to exercise
discretionary authority and require an
individual permit will ensure that the
activities authorized by this NWP result
in minimal adverse effects on the
aquatic environment
Several commenters recommended
adding conditions that appear to apply
to specific regions. One commenter
requested that: this NWP should be
prohibited in watersheds with
substantial aquatic resource losses and
in watersheds which have impervious
surfaces over a .substantial percentage of
the landscape; the acreage limits be
modified .to protect regionally,.,
'significant resources; linelr fo?t
limitations should be imposed on
activities in streams with regionally
important resources; kick-out provisions
should be provided for Federal agencies;
and compensatory mitigation should be
required to fully offset all impacts to
ensure no net loss of aquatic resources.
Another commenter requested that this
NWP: prohibit activities below the
existing water level of the stream-.- limit
work affecting water quality between
March 15 and June 15, prohibit the use
of stream bed material for erosion
control, limit the use of rip rap, limit
clearing of forested stream corridors to
the minimum necessary, require
revegetation of disturbed areas to reduce
erosion, require culverts for temporary
rock stream crossings higher than 18
inches, maintain stream bed gradient
during construction, and size and place
culverts to avoid creating a drop
between the downstream end of the
culvert and die downstream water
surface elevation.
All of die recommendations cited in
die previous paragraph are best
addressed as regional conditions and
case-specific special conditions for an
NWP audiorization. .
A couple of commenters requested
that this NWP authorize some stream
channelization. Several commenters
requested that this NWP prohibit stream
channelization.
Paragraph (f) of the proposed
modification of NWP 14 states that this
NWP cannot be used to channelize a
stream, but some channel modification
in die immediate vicinity of the crossing
can be conducted to ensure tiiat water
flow dirough the crossing does not
result in additional flooding, erosion, or
otiier adverse impacts that may
compromise public safety.
One commenter was confused about
the manner in which the authorized-
activities and applicable waters were
described. We have clarified this
section, with the acreage limits for each
category of activities and applicable
waters.
This NWP is subject to proposed
General Conditions 25, 26, and 27,
which will substantially reduce its
applicability. General Condition 25
prohibits die use of this NWP to
authorize discharges into designated
critical resource waters and wedands
adjacent to tiiose waters. Due to die
requirements of General Condition 26,
NWP 14 activities resulting in the loss
of impaired waters, including adjacent
wedands, are prohibited unless
prospective permittee demonstrates to
the District Engineer that the activity
will not result in further impairment of
the waterbody. General Condition 27
prohibits the use of NWP 14 to
authorize permanent, above-grade
wetland fills in waters of the United
States within the 100-year floodplain,
unless die prospective permittee clearly
demonstrates that die project and
associated mitigation will not decrease
the flood-holding capacity and no more
than minimally alter the hydrology,
flow regime, or volume of waters
associated with die 100-year floodplain.
In response to a PCN, district
engineers can require special conditions
on a case-by-case basis to ensure that
die adverse effects on the aquatic
environment are minimal or exercise -
discretionary authority to require an-
individual perrnit-for-the work. The '•
issuance of this NWP; as with any NWP,
provides for the use of. discretionary
audiority when valuable or unique
aquatic areas may be affected by these
activities.
27. Stream and Wedand Restoration
Activities
In the July 1, 1998, Federal Register
notice, we proposed to modify NWP 27
to audiorize the restoration of non-
Section 10. streams, in addition to die
wedand and riparian restoration and
enhancement activities already
audiorized by this NWP.
Some commenters supported the
proposed modifications. Otiier
commenters said that no restrictions
should be placed on die NWP. Several
commenters stated that the NWP meets
the criteria for minimal effects. One
commenter supported modification of
NWP 27 to authorize activities on
private property. Several commenters
opposed the proposed modifications to
NWP 27 because they believe tiiat
wedands and streams would be
adversely affected by die proposed
changes.
The purpose of the proposed
modification of NWP 27 is to authorize
die restoration of non-tidal streams.
NWP 27 previously authorized only die
restoration former non-tidal wetlands
and riparian areas, the enhancement of
degraded wetlands and riparian areas,
and die creation of wetlands and
riparian areas. We are also proposing to
modify NWP 27 to audiorize the
restoration of tidal waters. Currendy,
NWP 27 only authorizes the restoration
of non-tidal wetlands and riparian areas.
The enhancement of'degraded wedands
and riparian areas and the creation of
wedands and riparian areas is '
authorized in all waters of the United
States, including tidal waters. We
believe, that by adding stream and tidal
wetland restoration activities to this
NWP, that the overall aquatic
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Federal Register/Vol.
environment will benefit by providing
•in efficient means of authorizing the
restoration and enhancement of these
areas.
One commenter recommended
eliminating wetland restoration
activities from this NWP and limiting it
only to enhancement activities. This
commenter believes that restoration
activities do not require a Section 404
permit because the project area is not
currently a wetland. Another
commenter asked if NWP 27 applies to
the restoration of riparian zones outside
of wetlands and other waters of the
United States.
Many wetland restoration activities "
require a Section 404 permit because
there are discharges into waters of the
United States that are necessary to
conduct the restoration activity, such as
connecting die restored wetland to other
waters of the United States. The same
principle applies to wetland creation
activities. NWP 27 authorizes the
restoration of riparian zones that are
waters of the United States (e.g.,
wetlands adjacent to a stream) and
activities in waters of the United States
associated with the restoration of
upland riparian zones. For example, to
establ ish a vegetated upland riparian
zone, some bank stabilization activities -
In waters of the United States may be
necessary, such as the planting of
willows along the bank. If the proposed
riparian zone restoration activity is
conducted entirely outside of waters of
the United States, then no Corps permit
is required.
One commenter requested the
inclusion of more examples of stream
restoration and enhancement activities, „
such as the addition of spawning gravel
and the removal of accumulated
sediment from ponds to prevent
sed Iments from being washed
downstream. Another commenter stated- --,:
that the list of examples of authorized
activities In the NWP is too inclusive
and vague. Odier commenters expressed
concern that activities not directly
related to the restoration of ecological
values or aquatic functions could be
authorized by this NWP. Several
commenters recommended excluding
the placement rip rap from NWP 27 and
that the appropriate use of biological
materials should be encouraged
The list of activities in the paragraph
following paragraph (c) of the proposed
modification of NWP 27 is Intended
only to provide examples and Is not a
complete list of activities authorized by
this NWP. The next paragraph in NWF
27 lists activities that are not authorized
by the NWP. If the prospective
permittee has questions about a
particular stream and wetland '
restoration or enhancement activity,
chen he or she should [contact the
District Engineer to determine if the
proposed work can be;authorized by
NWP 27. For chose projects requiring
notification, the District Engineer will
determine if the proposed work satisfies
che terms and conditions of NWP 27 and
will exercise discretionary authority if
the proposed work will result in more
than minimal adverse effects on the
aquatic environment. Division engineers
can also regionally condition this NWP
to exclude certain activities or prohibit
its use in specific wateirbodies or '
geographic regions. We do not agree that
the use of rip rap should be excluded
from this NWP. because rip rap provides
habitat for many aquatic organisms and
can help reduce adversfe effects to water
quality resulting from soil erosion on
the project site. i
A number of commenters were
" confused about the scope of this NWP
and asked which types of waters are
• subject to this NWP. Several
commenters recommended expanding
the applicable waters for this NWP to
include Section 10 waters. Other
commenters suggested excluding tidal
wetlands from this NWP. One
commenter stated that the NWP should
be used only in small lengths of streams
or small wetland areas. <•
We have modified the; first paragraph
of the proposed modification of this
NWP to clarify the scope of applicable
waters for this NWP. Since its issuance
in 1991. NWP 27 has authorized
wetland and riparian restoration,
enhancement, and creation activities in
Section 10 waters, although certain
activities were restricted^ to non-tidal
Section 10 waters. This NWP authorizes
activities that restore former waters,
including tidal and non-tidal wetlands,
enhance degraded tidal qnd non-tidal
•-wetlands and riparian areas, create tidal
and non-tidal wetlands a;nd riparian
areas, and restore and enhance non-tidal
streams and non-tidal open waters. This
NWP can be used to restore and
enhance Section 10 streams and open -
waters, as long as they are non-tidal.
Other Section 10 activities authorized
by this NWP include the (restoration of
former non-tidal wetlandjs in Section 10
waters, the enhancement jof degraded
wetlands in navigable waters, and the
creation of wetlands in navigable
waters. }
Restricting the use of this NWP to
small segments of streams and small
wetlands is unnecessary Because this
NWP autiiorizes only those activities
that improve the aquatic environment
Adding such a restriction^ also likely
to discourage larger stream and wetland
restoration and enhancement projects by
requiring prospective permittees to go
through a more complicated and
expensive permit process.
Many commenters recommended
conditioning this NWP to prohibit
conversion and alteration of habitat
One of these commenters recommended
prohibiting the conversion of one
aquatic habitat type to anocher type
unless the intent of the conversion is to
restore che area to an aquatic habitat
type that historically existed on that
sice One commenter recommended
including a provision in the NWP to
allow the construction of small "'
impoundments in ephemeral and/or
intermittent reaches of streams to
benefit water quality and waterfowl.
The proposed modification of this
NWP prohibits the conversion of natural
streams or wetlands to another aquatic
use, unless the permittee recreates
similar aquatic habitat types in a
different location on the project site and
the project results in aquatic resource
functional gains. However, onJy non-
tidal waters can be converted to other
types of aquatic habitat We are
proposing to modify the text of the NWP
to specify that any relocated-non-tidal
aquatic habitat type must be created on
the project site, so that the relocation is
not limited to creating the aquatic
habitat type in adjacent uplands. We
have added a prohibition against
converting tidal waters, including tidal
wedands, to other aquatic uses or
relocating tidal waters. We do not
believe that is necessary Jo. limit the
conversion to aquatic habitat types that
historically existed on the project site,
because the permittee may want to
conduct activities that provide more
benefits to the aquatic environment than
the historic aquatic habitat type
provided. This NWP can authorize
small impoundments in ephemeral and/
or intermittent streams, provided those
aquatic habitat types are recreated on
the project site, the adverse effects on
the aquatic environment are minimal,
and there are net functional gains.
Several commenters expressed
concern with the use of this NWP with
other permits. Other commenters were
uncertain as to whedier General
Condition 15 applies to NWP 27.
NWP 27 may be used with other
NWPs to audiorize a single and
complete project provided the
authorized work results in minimal
adverse effects on the aquatic
environment, individually or
cumulatively. F6r example, NWP 33
may be used to provide temporally "
access to the construction site for
activities authorized by NWP 27. The
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Federal Register .'Vol. 64. No. • 139 /Wednesday, July 21. 1999/Notices
39301
Condition 15 applies ro NWP 27 and all
other NWP's.
We have also been made aware of
situations where participants in wetland
restoration programs, such as the U.S.
Department of Agriculture's Wetlands
Reserve Program, want to revert their
land back to its prior condition. If the
land was prior converted cropland
before the implementation of the
•wetland restoration activity, and no
associated discharge of dre'dged or fill
material into waters of the United States
was required to conduct the wetland
restoration activity, the landowner did
not require a Section 404 permit. If "the
landowner wants to revert the land back '
to its prior condition, he or she could
not utilize the reversion provision of
NWP 27, because NWP 27 was not
needed to restore wetlands on the prior
converted wetland. To address this
issue, we are proposing to add a
provision to NWP 27 that allows the
landowner to revert the land back to its
prior condition using NWP 27, even
though no Section 404 permit was
needed to conduct the wetland
restoration activity, provided the prior-
converted cropland has not been
abandoned. We believe this provision is
necessary to provide equity for
landowners. This provision may
. encourage more landowners to restore
wetlands on prior converted cropland
because they will not have to apply for
an individual permit at a later date to
revert the land back to its prior
condition.
Several commenters stated that
notification to the resource agencies
should be required for all activities
authorized by diis NWP. One
commenter recommended requiring
agency coordination for all activities
authorized under part (iv) of this NWP.
This commenter also recommended that
project proponents for stream
restoration activities should be required
to coordinate with the Corps and
Federal and State fish and wildlife
agencies prior to submitting a PCN
under part (iv): Many commenters
suggested PCN thresholds, ranging from
Vio acre to 1 acre. One commenter stated
that downstream landowners should be
.notified of proposed stream restoration
projects.
To clarify the notification
requirements of this NWP, we are
proposing to restructure NWP 27 to
make it easier to understand which
activities require notification to the
District Engineer. Notification is not
required for: (1) activities on public or
private land where the landowner has
an agreement with the FWS or NRCS.
(2) activities on Federal land, or (3)
activities on reclaimed surface coal
mined land in accordance with a
Surface Minffig Control arfj- *
Reclamation Act permit issued by the
Office of Surface-Mining or the
applicable state agency. Notification is
also required if a permittee wants to use
NWP 27 to authorize the construction of
a compensatory mitigation site (see the
Note at the end of NWP 27). We disagree
that agency coordination should be
conducted for all activities authorized
by this NWP, because this NWP
authorizes activities that benefit the
aquatic environment. Corps district
personnel possess the knowledge and
experience to assess the environmental
effects, both beneficial and adverse, of ,
.those activities requiring notification. If
the proposed work will result in more
than minimal adverse effects on the
aquatic environment, the District"
, Engineer will exercise discretionary
authority and require an individual
permit. Requiring project proponents to
coordinate with the Corps and fish and
wildlife agencies prior to submitting a
PCN is unlikely to provide any benefits
for the aquatic environment, and will
serve only to discourage stream
restoration projects because the
authorization process will become too
burdensome for many landowners. For
many of the reasons cited above, we do
not believe it is necessary to place a
PCN threshold based on acreage on this
NWP, or to notify downstream
landowners of proposed stream •
restoration projects.
. Several commenters stated that the
NWP is too vague and is vulnerable to
abuse. A number of commenters
requested the inclusion of narrow
definitions of authorized activities in
the NWP. Two commenters asked how
the Corps will assess functional gains.
One commenter stated that NWP 27
should authorize only ecological-based .
stream restoration. One commenter
asked if NWP 27 was intended to apply
to the compensatory mitigation
requirements of other Corps permits.
Another commenter recommended that
the NWP require the planting of native
species at the site.
No activities or discharges not
directly related to the restoration of
ecological values or aquatic functions
are authorized by this NWP. This NWP
can be used to authorize wetland and
stream restoration activities required by
other Corps permits. The intent of the
proposed modification of this permit is
to facilitate the restoration of degraded
or altered streams and wetlands. The
goals of the proposed activities must be
based upon the enhancement,
restoration, or creation of the ecological
conditions that existed, or may have
existed, in the stream or wetland prior
. ro disturbance, or to otherwise improve
'he aquatic functions and values of such
areas. The activities may include, but
are not limited to, the modificacion-of
the hydrology, vegetation, or phvsical
structure of the altered or degraded
stream or wetland. If additional
protection is necessary, division
e£giNn?m C,an add regional conditions to
this NWP. We have added a provision
to the proposed modification of NWP 27
that requires the permittee to utilize
native plant species-if he or she is
vegetating the project site. We are
limiting this requirement to plant
species installed by the permittee,
because non-native plant species may
naturally colonize the projec- site and
we cannot require the permute to
remove those plants.
Some commenters recommended
requiring binding agreements for '
activities authorized by this NWP. One
commenter stated that management
plans were needed in all cases. One
commenter recommended requiring
detailed restoration plans. One
.commenter recommended prohibiting '
future fills in areas that have reverted to
prior condition under parts (ii) and (iii).
Another commenter stated that wetland
and stream restoration and
enhancement activities by State
resource management agencies should
be included in NWP. •
We do not believe that binding
agreements or detailed restoration plans
are necessary in all cases. Where the
NWP authorizes reversion of the created
or restored wetlands to its non-wetland
state (i.e., in those cases involving
private parties entering into contracts or
agreements with, or documentation of
prior condition by. the NRCS or FWS
under special wetland programs or an
Office of Surface Mining (OSM) or
applicable state program permit), then a
binding agreement, documentation, or
permit by NRCS, FWS, or OSM or
applicable state agency which.clearly
documents the prior condition is
required. This reversion can only occur
when these instruments clearly
document the prior condition. In all
other cases where the reversion
opportunity is not included, a Corps
permit would be required for alteration
ofthe site. Therefore, no binding
• agreement, detailed restoration plan, or
documentation ofthe prior conditions
will be required. Because the permit is
limited to restoration, enhancement,
and creation activities and because
authorizations for those projects do not
provide the opportunity for reversion,
except as noted above, without a permit
from the Corps, we believe that a
management plan would be
unnecessarily burdensome withou-
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39302
•additional environmental benefits
Activities by State natural resource
management agencies are already
authorized fay this NWP. but may
require notification to the Corps unless
rhose activities are in the categories
described by paragraphs (a)(l). (a)(2). or
'3HOJ.
One commenter stated that evaluation
of upstream and downstream impacts
should be conducted. Another
commenter stated that NWP 27 should
not authorize activities that impede fish
passage. A couple of commenters
requested that the NWP should not be
allowed in exceptional use waters and
wild and scenic rivers.
All activities authorized by this NWP
must comply with General Condition
21. Management of ., ater Flows.
Compliance with this condition will
ensure that the authorized activity
results in minimal adverse effects on
hydrology upstream and downstream of
the project site. Similarly, all activities
authorized by this NWP must comply
with General Condition 4, Aquatic Life
Movements, to ensure that the
authorized work results in no more than
minimal adverse .effects on aquatic life
movements. The requirement to comply
with General Condition 7 will ensure
the proper coordination to prevent
adverse impacts to Federally-designated
wild and scenic rivers. In addition
JrcCtS have coordlnated with Federal
a.*d State natural resource agencies to
discuss appropriate regional
conditioning for the NWPs. Proposed
General Condition 25 requires
notification to the District Engineer if
the proposed activity will occur in
NCAA-designated marine sanctuaries.
Nat ona Estuarine Research Reserves.
National Wild and Scenic Rivers
critical habitat for Federally-listed
threatened or endangered species, coral
reefs. State natural heritage sites, and
outstanding national resource waters or
other waters officially designated by a
State. Restricting the use of NWP 27 In
exceptional use waters will also be
"Tn^^^u^cTSter1-
requirements of proposed General
Conditions 25 and 26. General
Condition 25 requires the prospective
permittee to notify the District Engineer
in accordance with General Condition
13 for activities in designated critical
resource waters. Including wetlands
adjacent to those waters. The District
Engineer may authorize NWP 27
activities In these waters if the adverse
effects are no more than minimal
Gfei?eral C°nditi°n 26 Prohibits the use
of this NWP to authorize discharges
resulting in the loss of greater than 1
acre of impaired waters, including
Federal Register/ Vol. 64 t\rn nq/w/^ A , ,
~ -*.JNQM39/Wednesday. July 21. IQQQ/Notices
adjacent wetlands. NWP 27 activities
resulting in the loss of 1 acre or less of
impaired waters, including adjacent
wetlands, are prohibited unless
prospective permittee demonstrates to
the District Engineer that the activity
will not result in further impairment of
the waterbody. ;
In the proposed modification of NWP
NWP ^t prop°sinS to add a note to the
NWP to clarify the compensatory
mitigation is not required for activities
authorized by this NWJP. provided the
work results in a net increase in aquatic
resource functions and; values in the
area. The note also states that NWP 27
can be used to authorize compensatory
mitigation projects, including mitigation
banks, as long as the project includes
compensatory mitigation for any losses
of waters of the United States that may
occur as a result of constructing the
compensatory mitigatio|n project. The
proposed note also states diat NWP 27
does not authorize reversion of sites
used as compensatory mitigation
projects to prior conditions.
In response to a PCN, [district
engineers can require special conditions
on a case-by-case basis tp ensure that
the adverse effects on the aquatic
environment are minimal or exercise
discretionary authority tja require an
individual permit for the work. The
issuance of this NWP, as'with any NWP
provides for the use of discretionary
authority when valuablefor unique
aquatic areas may be affected by these
activities. i
39. Residential, Commercial and
Institutional Developments
This NWP was proposed as NWP A in
the July 1. 1998. Federal Register
notice. NWP 26 has been used
extensively to authorize discharges of'
dredged or fill material into waters of
the United States for residential,
commercial, industrial, arid institutional
development activities. Based on the
comments received in response to the- •
July 1, 1998, Federal Register notice, we
have made changes to the proposed
NWP, which are discusseci in further
detail below. We are proposing to use an
index to determine the acreage limit for
this NWP.The index will be based on
a percentage of the project area, with a
1A acre base limit. The maximum
acreage loss that can be authorized by
this NWP is 3 acres. We are also
proposing to restrict the list of activities
authorized by this NWP to1 building
pads, building foundations, and
attendant features for residential,
commercial, and institutional
development activities. We have
reduced the PCN threshold from V3 acre
to 'A acre. A PCN will be required for
all activities that involve discharges of
dredged or fill material into open
waters. We believe that these changes
will ensure that this NWP authorizes
only those development activities that
are similar in nature and have minimal
adverse effects on the aquatic n'mal
environment, individually or
cumulatively. In addition, to further
ensure that the NWP authorizes
eSK168 ^th °nly min™al adverse
ejects; on the aquatic environment.
most, if not all, Corps districts will
impose regional conditions on this '
General: Nearly 350 comments were
NwTS sPeciflca"y addressed this
NWP. Many commenters opposed the
issuance of this NWP, but a few favored
its issuance. Many of the commenters
who objected to the issuance of this
NWP believe that it authorizes activities
with more than minimal impacts,
resulting in excessive cumulative'
adverse effects on the aquatic
environment. Several commenters
stated that the types of activities
authorized by this NWP should be
subject to the individual permit process
and public comment. Another
commenter stated that this NWP is
essentially the same as NWP 25 with an
expanded scope of waters where it can
oe use'd.
NWPs can only authorize activities ".
that have minimal adverse effects on the
aquatic environment, individually or
cumulatively. We have established ECN
thresholds to allow district engineers to
Mum^11 activi«es authorized by this
NWP that could potentially result in
more than minimal adverse effects on
the aquatic environment. We believe
that, in most cases, residential,
commercial, and institutional
development activities that result in the
loss of less than 'A acre of wetlands
have minimal adverse effects on the
aquatic environment. In watersheds or
waterbodies where losses of less than 'A
acre of waters of the United States may
result in more than minimal adverse
effects, division engineers can
regionally condition this NWP to lower
the notification threshold or require
notification for all activities. This NWP
can also be revoked by division
engineers in those watersheds or
geographic regions where use of the
NWP will cause more than minimal
cumulative adverse effects on th«
aquatic environment. By restricting the
proposed NWP to the construction of
building pads, building foundations,
and attendant features, we are limiting
the use of this NWP to the development
activity, which is much narrower than
the scope of activities that could be
authorized by NWP 26
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Federal Register Vol. 64. Xo. 139/Wednesday. July 21. 1999/N"otices
39303
Types of Waters Affected: Several
commenters objected to this NWP
because it authorizes residential,
commercial, and.institutional
development activities in all non-tidal
waters of the United States, excluding
non-tidal wetlands contiguous to tidal
waters. They believe that the scope of
applicable waters for this NWP will
increase wetland destruction. In
contrast, two commenters stated that
rhis NWP should be applicable in all
non-tidal waters, including non-tidal
wetlands contiguous to tidal water's.
Another commenter recommended that
wetlands and waters adjacent to tidal
waters should be excluded from the use
of this NWP as are contiguous wetlands.
Two commenters stated that this NWP
should authorize only activities in
isolated wetlands less than 1 acre in
size.
To increase protection of the aquatic
environment, we are proposing to
change the applicable waters of this
NWP to: non-tidal waters, excluding
non-tidal wetlands adjacent to tidal
waters. This change in applicable waters
will reduce the geographic extent in
which NWP 39 can be used. High value
isolated waters can receive additional
protection dirough regional conditions
to restrict or prohibit the use of this
NWP in those waters.
Anodier commenter stated that the
expansion of applicable waters from
headwaters and isolated wetlands will
result in degradation of water quality by
destroying wetlands which trap
sediments and take up pollutants. This
commenter also stated that the NWP
does not specify stormwater
management requirements needed to
prevent water quality degradation.
We are proposing to modify General
Condition 9, Water Quality, to require a
water quality management plan for
activities authorized by this NWP. The
purpose of the water quality
management plan is to ensure that the
activities authorized by this NWP result
in only minimal degradation of
downstream water quality. The
permittee must utilize stormwater
management techniques and vegetated
buffers to ensure that the project
complies with this condition and does
not result in substantial degradation of
downstream water quality. The
requirements of proposed General
Condition 26 will also prevent further
degradation of impaired waters by
limiting the use of this NWP to
authorize discharges In impaired
waterbodies and adjacent wetlands. •
Types of Activities Authorized: Many
commenters stated that this NWP does
not comply with Section 404(e) of the
Clean Water Act, which requires
activities authorized by general permits
to be "similar in nature." They believe
that this NWP authorizes a wide variety
of activities and does not comply with
this requirement. One commenter
recommended that the Corps develop a
more limited list of activities authorized
by this NWP. Another commenter
suggested that a separate NWP should
be developed for each category of
activities. Several other commenters
objected to this NWP because they
believe that it authorizes activities that
are not water dependent and that these
activities should not be authorized in
wetlands. One commenter suggested"
that the NWP should audiorize only the
construction of buildings and attendant
features and should not authorize ball
fields and golf courses.
In response to these comments, we
have restricted the list of activities
authorized by the proposed NWP to
building pads, foundations, and
attendant features constructed for
residential, commercial, and
institutional purposes. A structure must
be built on the building pad or
foundation to quality for authorization
under this NWP. Attendant features, as
defined for the purposes of this NWP,
are those features necessary for die use,
operation, and maintenance of the
residential, commercial, or institutional
building. District engineers will
determine whether or not a particular
attendant feature can be authorized by
this NWP. Attendant features can
include, but are not limited to: roads
constructed within the development
project area, parking lots, storage
buildings, garages, physical plant,
sidewalks, stormwater management-
facilities, utilities, lawns and
landscaped features, and recreational
facilities such as playgrounds for
schools and day care centers. We do not
believe that it is necessary to develop a
separate NWP for each category of
activity because limiting the proposed
NWP to building pads and attendant
features necessary for die operation and
use of diose buildings complies with the
similar in nature requirement of Section
404(e) of the Clean Water Act. The
purpose of the building and attendant
features (i.e., whether it is for
residential, commercial, industrial, or
institutional purposes) is usually
irrelevant in terms of adverse effects on
the aquatic environment. The
construction of a building pad or
foundation for a residential,
commercial, or institutional building
has the same effects on aquatic habitat
because it replaces an aquatic area with
a building. Issuing a separate NWP for
each type of development activity ^
would also result in a much mere
complex NWP program with a
substantially larger number of NWPs.
Authorization of the necessary attendant
feature's with the building pad or
foundation will help ensure that the
NWP authorizes all activities associated
with a single and complete project and
avoid piecemealing of projects. In
addition, by audiorizing the entire
development project with one NWP, we"
will be better able to assess die adverse
effects of the entire development on die
aquatic environment.
Residential developments include
single and multiple unit developments.
A residential subdivision, may be
authorized bythis NWP as a single.' •^'
complete project. This NWP also
audiorizes the construction of apartment
complexes. Developers and speculative
builders can use this NWP to construct
single family residences. We have
removed the language from, die .' •
proposed NWP A published in die July
1, 1998, Federal Register notice that
prohibited the use of this NWP to
authorize the construction of a single
family residence and attendant features
for personal residence for die permittee.
Although this change results- in some ,
overlap between this NWP and NWP 29_
because diey both can authorize s.ingle
family residences, we believe diat this .
overlap does not result in less
protection of the aquatic environment.
The construction of a single family
residence, whether it is constructed by
die prop'erty owner who will live in die
residence or "by a contractor or
speculative builder who will later sell
die completed residence, has the same-
adverse effects on the aquatic
environment. Aldiough NWP 39 may
have a higher indexed acreage limit than
NWP 29, the geographic scope of
applicable waters for NWP 39 is much
less dian die scope of applicable waters
for NWP 29. NWP 39 cannot be used to
audiorize discharges into non-tidal
wedands adjacent to tidal waters, but
NWP 29 can authorize discharges in
diose non-tidal wetlands. NWP 39 has a
more stringent avoidance and -
minimization requirement than NWP 29
because it requires the permittee
explain, in the notification submitted to
die District Engineer, how avoidance
and minimization was achieved on the
project site. District engineers will
receive PCNs for activities that result in
die loss of greater than 1/4 acre of
waters of the United States or involve .
discharges into open waters, such as
streams. Based on the review of the.
PCN, the District Engineer will
determine if the proposed work results .
in minimal adverse effects on the
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Federal Register/Vol. 64. No. 1397Wednesday, July 21, 1999/Notices
aquatic environmencand qualifies for
authorization under NWP 39. We also
believe that prohibiting the use of NWP
39 to authorize the construction of a
single family home for the property
owner, but allowing a contractor or
speculative builder to use NWP 39 to
construct a single family residence, is
unfair to the regulated public because it
places different restrictions based solely
on who the applicant is (i.e.. whether
the applicant will be the resident of the
home or if the applicant is a contractor
or a speculative builder will sell the
completed home at a later time to a
future occupant). Such inequities are
likely to lead to selective use of these
two NWPs. A property owner can ask a
contractor to apply for NWP 39
authorization for a higher acreage limit, '
instead of applying for an NWP 29
authorization. Since NWPs can
authorize only those activities that
result in more than minimal adverse
effects on the aquatic environment,
individually or cumulatively, we
believe this overlap between NWPs 29
and 39 is not contrary to Section 404 (e)
of the Clean Water Act.
Commercial developments authorized
by this NWP include, but are not limited
to, retail and wholesale stores, shopping
centers, industrial facilities, malls,
restaurants, hotels, business parks, and
other buildings for the production,
distribution, and selling of goods and
services, as well as attendant features
for those buildings. Institutional
developments include, but are not
limited to, schools, police stations, fire
stations, government office buildings,
libraries, courthouses, public works
buildings. College or university
buildings, hospitals, and places of
worship. This NWP does not authorize
the construction of new ski areas or the
installation of oil or gas wells.
One commenter stated that the term
"infrastructure" is poorly defined in the
NWP. Another commenter suggested
that infrastructure should be authorized
by a separate NWP. Three commenters
recommended that this NWP authorize
the roads constructed by State or local
governments to the development, not
just the roads within the development
For the purposes of the proposed
NWP, infrastructure includes attendant
features necessary for the operation of
the residential, commercial, or
institutional development or building, .
such as utilities, roads, and stormwater
management facilities. Utilities that are
not an Integral part of the development,
but are snared with other developments,
may be authorized by other NWPs, such
as NWP 12, regional general permits, or.
Individual permits. The proposed NWP
project area (e.g., the subdivision).
Roads leading to the project area,
including those roads (constructed by
State or local governments,- may be
authorized by NWP 14. another NWP,
regional general permit, or individual
permit. These roads tyjpically serve
other areas and may be considered as
separate single and complete projects.
The proposed NWP does not
audiorize discharges of dredged or fill
material into waters of the United States
for the construction or'expansion of golf
courses unless the golf course is an
integral part of a residential subdivision.
However, this NWP -may be used to
authorize the clubhouse, storage
buildings, or garage for a golf course. A
golf course that is hot a'n integral part of
a residential subdivision may be
authorized by proposed NWP 42,
Recreational Facilities,! provided the golf
course is designed andfconstructed in a
manner tiiat complies toith the terms of
that NWP. Golf courses as primary
projects are not authorized by this NWP
because they do not require building
pads or foundations to [fulfill their
primary purpose. Rather, the clubhouse,
storage building, or garjage is an
attendant feature of the golf course, riot
vice versa. Golf courses can also be
authorized by other N\yPs, regional
general permits, or individual permits.
One commenter requested that the
Corps develop a separate NWP for
. shopping centers because shopping
centers differ from residential,
commercial, and institutional
developments. Another! commenter
stated that Institutional facilities-should
include reuse plants, w^stewater
treatment facilities, and water treatment
plants. One commenter!stated that
community recreation activities should
not be authorized by this NWP.
We do not believe it is necessary to
issue a separate NWP for shopping
centers because shopping centers are a
specific type of commercial
development. The adverse effects on die
aquatic environment resulting from the
construction and use of .shopping
centers are similar to the impacts of...
other types of commercial
developments. Reuse plants, wastewater
treatment facilities, and'water treatment
plants may be authorized by this NWP,
at the discretion of the District Engineer.
We cannot list every type of residential,
commercial, or institutional
development that is authorized by the
proposed NWP becausejsuch a list
would be impractical and unnecessarily
restrict the use of this NjWP for other
development activities tjhat have
minimal adverse effectsjon the aquatic
environment. For those [discharges that
will determine if the proposed activity
qualifies for authorization under this .
NWP. For discharges that do not require
notification, a permittee can contact the
appropriate Corps district office to
determine if his or her development
activity is eligible for this NWP. .
A commenter requested that the NWP
explicitly authorize all-commercial and
industrial activities because this NWP
could be interpreted as not authorizing
general industry construction. This *
commenter stated that there is no
difference between commercial
developments and general industrial
developments. Another commenter .
requested clarification as to whether the
term "institutional developments"
includes government facilities.
We agree with these commenters and
have stated in the text of the proposed
NWP that industrial facilities and
government office building pads,
foundations, and attendant features may
be authorized by this NWP. •
We do not agree that community
recreation activities should not be
authorized by this NWP, because NWP
39 authorizes attendant features
associated with a residential, ' - "*
commercial, or institutional
development. These attendant features
may include playgrounds and playing
fields, provided those facilities are
constructed in conjunction with a
residential subdivision or school
building. Excluding these features
would be contrary to the purpose of the
proposed NWP, which is to authorize all
necessary attendant features associated
with the buildings as part of a single
and complete project This NWP does
not authorize discharges of dredged or
fill material into waters of the United
States for die construction of
recreational facilities unless those
recreational facilities are attendant
features for residential, commercial, or
institutional buildings. However, the
building need not be constructed in •
waters of the United States for the
attendant features to be authorized by
NWP 39. Recreational facilities not
constructed with residential,
commercial, or institutional buildings
may be authorized by proposed NWP
42, other NWPs, regional general
permits, or individual permits.
Several commenters stated that
rechannelization of streams should not
be authorized by this NWP. One
commenter said that stream
rechannelization would not comply
with the proposed modifications to •
General Conditions 21 and 9 because
rechannelization causes more than
minor changes in flow characteristics
and could measurably degrade water
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Vol. 64, N'q. 139/Wednesday, July 21, .1999/Notices
39305
the list of aurhorized activities should
include drainage facilities, culverts, and
drainage ditches.
• To address concerns regarding stream
. channelization associated with
residential, commercial, and
institutional development projects, we
have added paragraph (j) to proposed
.NWP 39. Paragraph (j) prohibits the
channelization or relocation of stream
beds downstream of the point on the
stream where the average annual flow is
I cubic foot per second. Therefore, only
small streams can be channelized or
relocated'by this NWP. We believe that
this restriction will help ensure that
residential, commercial, and
institutional development activities will
result in minimal adverse effects on the •
aquatic environment. It should also be
noted that notification is required for all
discharges resulting in the loss of open
waters, which allows district engineers
to review all proposed activities in
streams and other open waters. Division
engineers can also regionally condition
this NWP to prohibit the channelization
or relocation of high value streams with
average annual flows of 1 cubic foot per
second or less. Channelization or
relocation of stream segments with
average annual discharges of greater
than 1 cubic foot per second may be
audiorized by regional general permits
or individual permits. The construction
or maintenance of drainage facilities,
culverts, and drainage ditches may be
aud-iorized by this NWP only if they are
' attendant features necessary for the
residential, commercial, or institutional
building. Drainage facilities and ditches
may be part of a stormwater
management facility or road. Culverts
may be used to construct road crossings
in the residential-, commercial, or
institutional development.
Acreage Limit: In the July 1, 1998,
Federal Register notice, we requested
comments on whether a simple acreage
limit should be used for this NWP or
whetiier the acreage limit should be
indexed or based on a sliding scale. We .
proposed options for a simple limit of
3 acres and an indexed acreage limit
based on parcel size. Many commenters
said that a simple acreage limit should
be used instead of indexing or a sliding
scale. A few commenters stated that the
3 acre limit is adequate. Many
commenters believe that the proposed
acreage limit is too high. A number of
commenters recommended an acreage
limit of 1 acre. Other commenters
. proposed limits of l/z acre and 2 acres.
One commenter recommended acreage
limits of 2 acres of isolated wetlands
and Vs acre of headwater wetlands.
Numerous commenters said that the 3
acre limit is too low and that the acreage
limit should be 5 acres. They believe
that the NWPs'should be more flexible
and should.authorize all activities that
result in minimal adverse effects. They
recommended that PCNs should be used
to determine whether or not a particular
project would result In more than
minimal adverse effects. Two
commenters recommended a 10-acre
limit and another commenter suggested
a 25-acre limit for this NWP. Some
commenters remarked that the acreage
limit should be higher because the
Corps has not demonstrated that higher
acreage limits will result in significant.
direct or cumulative adverse effects.
Many of die commenters who stated
that the 3 acre limit is too high referred
to die recent United States District Court
decision in the District of Alaska on
NWP 29. They cited this court decision
as evidence that the acreage limit for
NWP 39 is too high because die Corps
was enjoined from accepting NWP 29
preconstruction notifications after June
30, 1998. Two commenters stated that
die acreage limits and PCN thresholds of
this NWP and NWPs 29 and 40 should
be similar.
In its decision, the District Court did
not rule that die acreage limit for NWP
29 (i.e., l/2 acre of non-tidal waters) was
too high. The District Court merely
required the Corps to consider lower
acreage limits and the exclusion of high.
value waters in its environmental
assessment.
For activities in non-tidal wetlands,
NWPs 39 and 40 have different acreage
limits. NWP 39 utilizes an indexed
acreage limit, as does NWP 40 for
discharges into playas, prairie podioles,
and vernal pools. NWP 40 utilizes a -
simple acreage limit of 2 acres for
discharges into other types of ncm-tidal
wetlands. We are not proposing an
indexed acreage limit for discharges
authorized by NWP 40 into non-tidal
wetlands because the national average
for farm tract size is approximately 275
acres, which means that most
agricultural producers would qualify for
the maximum acreage limit of 2 acres.
However, we are proposing to utilize an
indexed acreage limit for discharges into
playas, prairie potholes, and vernal
pools. Most residential, commercial,
and institutional developments, on the
other hand, would be subject to the
indexed acreage limit since most of
tiiese- developments occur on relatively
.small parcels of land and die indexed
acreage limit would encourage
avoidance and minimization of impacts
to waters of the United States. It would
be impractical for this NWP to have the
same acreage limit as NWP 29 because
diese NWPs fulfill different purposes.
NWP 29 applies solely to the
construction of a single family residence
whereas NWP 39 may be used to
authorize die construction of a large
residential subdivision, a commercial
development, or an institutional •
development. The PCN requirements of
NWPs 29 and 39 are different. NWP 29
requires notification for all activities
audiorized by that NWP. NWP 39
requires notification for activities
resulting in die loss of greater dian 'A
acre of non-tidal waters and any
discharges resulting in the loss of open
waters.
Several commenters favored the use
of a sliding scale or indexing to
-determine die acreage limit for this
NWP. A few commenters noted that the
sliding scale is too..complex to ,
implement. Some of die commenters
endorsing the use of a sliding scale
recommend basing die indexing on a
percentage of die development size. One
commenter suggested diat the acreage
limit should be based on 10% of die
parcel size, another commenter
suggested diat the maximum acreage
should be 5% of die parcel size, several
commenters recommended an acreage
limit 2% of the parcel size, and two
commenters recommended using 1% of
die parcel size as the acreage limit.
Anodier commenter recommended a
minimum acreage limit of l/3 acre plus
10% of die wetlands on die parcel for
this NWP.
One commenter stated that a
percentage of parcel size should be used
as the basis for die index because if the
indexing scheme proposed in die July 1,
1998, Federal Register is used, a small
increase in parcel size could allow a
much larger loss of wedands. For
example, a parcel size of 14.4 acres
would have an acreage limit of 1 acre
whereas a 15.1 acre parcel would have
an acreage limit of 2 acres. In contrast,
an index based on die percentage of
parcel size or project area would result
in a small increase in the acreage limit
with a small increase in parcel size or
project area.
Other commenters remarked that the
indexing scheme proposed in the July 1,
1998, Federal Register notice has
acreage limits so low for each size
category that it is useless. If indexing is
used to determine the acreage limit,
these commenters requested that the
Corps base the index on higher acreage
limits. In contrast, some commenters
stated that the indexing should be based
• on lower acreage limits. One commenter
recommended an indexed acreage limit
of 'A acre for every 5 acres of parcel
size.
In response to these comments, we
have decided to utilize an indexed
acreage limit for this NWP. The
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Federal Register.'Vol. 64. No. 139/\jVednesday, July 21, 1999/Notices.
proposed index begins with a base
acreage limit of '•-* acre and increases as
2% of the project area, in acres. The
maximum acreage limit for this NVVP is
3 acres of non-cldal waters of the United
States, excluding non-tidal wetlands
adjacent to tidal waters. The acreage
limit for this NWP is calculated as
follows:
Acreage limit = 'A acre + 2% of the
project area (in acres) For example if the
project area is 5 acres.lhe acreage limit
would be 0.35 acres. If the project area
is 80 acres, the acreage limit would be
1.85 acres. With this indexed acreage
limit, die maximum limit of 3 acres is
reached at a project area of 137.5 acres.
If the project area is greater than 137.5
acres, the acreage limit is 3 acres.
Two commenters said that indexing
should be based on the quality or valu-™s •
of die aquatic resource lost due to the
authorized work. They stated that such
a basis for indexing would ensure that
only projects widi minimal adverse
effects are authorized.
We believe that using functions and
values of aquatic resources to determine
the maximum acreage limit for an NWP
is impractical because we do not
currently have a standard mediod for
measuring or assessing aquatic resource
functions and values.
One commenter stated that Indexing
duplicates requirements for avoidance
and minimization, including the
statement required in paragraph (0 of
the proposed NWP A. Two commenters
believe that indexing is counter to die
requirements for avoidance and
minimization and provides incentives
for developers to build larger projects.
We disagree -with these com'rr.ents,
because die purpose of using an indexed
acreage limit for dils NWP is to have a
proportionally smaller acreage limit for.
smaller projects, which reduces die
potential for losses of waters of die
United States. An indexed acreage limit
encourages avoidance and minimization
because it Imposes smaller acreage
limits on smaller projects rather than a
single larger acreage limit Widi an
Indexed acreage limit, NWP applicants
are still required to avoid and minimize
Impacts to waters of the United States
on-site to the maximum extent
practicable (see General Condition 19).
Anodier commente'r asserted diat „
project proponents will attempt to get
around indexing requirements by
artificially defining the parcel as larger
than It really Is to avoid going through
the Individual permit process. Two
commenters remarked diat developers
may phase projects so that diey can
build projects widi higher impact
acreage limits using die Indexing
Federal Register notice. In this case, the
Corps would have to determine if
phasing meets the criteria for a single
and complete project: [They believe that
die use of a sliding scile will encourage
piecemealing of projects. One
commenter recommended that the term
"parcel size" used in the proposed
indexing scheme should be replaced '
widi-the term "single knd complete
project," as defined b^ subdivision
criteria. ! : .
We are proposing to; base die indexed
acreage limit on a percentage of project
area, not parcel size, to ensure that the
NWP audiorizes only Single and
complete projects. Bas.ing the indexed
acreage lime on project area will result
in an acre.'-e limit diat reflects die
actual size of die proposed activity,
which cannot be artificially inflated in
an attempt to get a higher acreage limit.
Using the project area to determine die
acreage limit, a particular parcel could
have separate projects'built upon it.
widi acreage limits based on the size of
each project, as long as each separate
project has independent utility. If die
separate projects do not have
independent utility, then the acreage
limit would be determined by the sum
of die project areas for|each dependent
component of die entire single and
complete project. j
Two commenters said that die
proposed acreage limit will allow long
segments of streams to! be impacted.
Some commenters recommended limits
for die amount of linear feet of stream
bed diat may be filled 0r excavated
under diis NWP. Comriienters •••**--
recommended limits ojf 50, 100, or 150
linear feet of stream bed.
It should be noted diat the proposed
NWP has a PCN requirement for any
loss of open waters, including streams.
By reviewing die PCN.l district engineers
will be able to determine if die loss of
stream bed will result in more than
minimal adverse effects. If the stream
bed impacts are more t!han minimal,
discretionary authority will be exercised
by die District Engineer, and die
applicant will have to ^pply for
audiorization through Another permit
process or modify die project to comply
widi die NWP. Therefore, we do not
believe that it is necessary to impose a
limit on die quantity olf stream bed diat
can be filled or excavated under diis •
NWP. l
reconstruction Notification: We
received a variety of comments
concerning die notification
requirements for diis NWP. A couple of
commenters supported the proposed
PCN threshold of Va acre. Several
commenters stated that die PCN
Id be '/< acre. Two
commenters recommended a '/.> acre
PCN threshold. Two commenters
believe that the PCN threshold should
be 1 acre"and a few commenters stated
that a PCN should be required for all
activities authorized by diis NWP.
We believe that the PCN threshold
-should be 'A acre, to be consistent with
the other new NWPs.
For diis NWP, we also proposed to
require notification'for all activities that
involve filling or excavating open
waters, such as perennial or intermittent
streams and lakes. One commenter
stated that this PCN requirement is
excessive and would mean that a PCN
' will be required for virtually all
projects. This commenter also stated
diat this PCN requirement implies that
open waters are more important than
special aquatic sites and is contrary to
the Section 404(b)(l) guidelines. The
commenter recommended that the
Corps establish other PCN thresholds for
open water impacts instead, such as a -
500 linear foot PCN threshold for
intermittent stream impacts, and require
a PCN for all perennial stream impacts.
Another commenter recommended
using the size of die drainage area to
determine when a PCN is required for
open water impacts. This commenter
recommended requiring a PCN when
the drainage area is 1 square mile or
greater. Another commenter believes
that die PCN requirement for open
waters demonstrates a lack of
understanding diat not all significant
wedands have open waters and diat diis
PCN requirement redefines wetlands.
We disagree widi die assertion diat
this PCN req'tiirement is excessive and
would result in PCNs for nearly all
projects authorized by this NWP. Many
development projects audiorized by diis
NWP would only impact wedands and
would require notification only for
those_activities that result in the loss of
greater dian V« acre of wetlands. In
addition, most residential, commercial,
or institutional development projects
can be designed to avoid impacts to
open waters; Road crossings of streams
diat are constructed widi culverts would
require subrnittal of a PCN. The purpose
of this PCN requirement Is to allow
district engineers to review residential,
commercial, and institutional
development activities diat result in a
loss of open waters, such as streams,
and ensure that activities in these
waters will result only in minimal
adverse effects on die aquatic
environment. We are proposing to add
Note 2 to the text of this NWP to help
die regulated public Identify diose areas
diat require submission of a PCN for
discharges into open waters.
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3930?
We are proposing to add the PCN
requirement for discharges into open
v.nters to provide district engineers with
the opportunity to review activities in
open waters and ensure that the
authorized work results in minimal
.adverse effects on the aquatic
environment. One intent of the
proposed new and modified NVVPs is to
provide equal consideration for open
and flowing waters and wetlands. The
proposed NWPs focus on the aquatic
environment as a whole, not just
wetlands. Streams and other open
waters are extremely important
components of the overall aquatic
environment. The proposed PCN
requirement does not redefine wetlands;
it merely places additional emphasis on
other types of waters of the Unr.od
States, such as lakes and streams. High
value wetlands and other waters will
receive additional protection through
regional conditions and the use of
discretionary authority where
discharges into high value waters may
result in more than minimal adverse
effects on the "aquatic environment.
Several commenters stated that the
PCN process for this NWP does not
provide the Federal and State resource
agencies the opportunity to comment on
projects that adversely affect less than 1
acre of waters of the United States.
These comrnenters believe that these
agencies should be allowed the
opportunity to comment on these
projects. One commenter supported
Corps-only review of projects that
adversely affect between '/3 acre and 1
acre of waters of the United States. One
commenter recommended agency
' coordination for activities resulting in
the loss of greater than l/2 acre of waters
of the United States.
We are proposing to modify General
Condition 13 to require-agency
coordination forNWP 39 activities that
result in the loss of greater than 1 acre
of waters of the United States. PCNs for
activities that result in the loss of 'A
acre to 1 acre of waters of the United
States will be reviewed solely by the
Corps. Agency coordination for smaller
projects is costly to the Corps and
provides little value added in
determining whether or not the work
will result in minimal adverse effects on
the aquatic environment. Corps district
personnel are highly experienced in
reviewing PCNs to assess the
environmental effects of the proposed
work and recommending special
conditions or requiring compensatory
mitigation to ensure that the adverse
effects on the aquatic environment are
minimal. If the District Engineer
determines that the adverse effects are
more than minimal, discretionary
authority will be exercised and ,the
applicant willjpe notified that another
form of Corps authorization, 'such as an
individual permit, is required for the
proposed work.
' A few commenters stated that the
PCN should include detailed plans and
schedules for compensatory mitigation.
Another commenter recommended that
the PCN should include baseline data
for stream flows and a detailed analysis
of stormwater standards to ensure
compliance with paragraph (g) (formerly
paragraph (i) of NWP A) of the proposed
NWP.
We believe that it is unnecessary to
require detailed plans and schedules for
compensatory mitigation with die PCN
to ensure that the adverse effects of the
authorized, work on the aquatic
environment are minimal. Requiring the
submission of detailed compensatory
mitigation plans with the PCN will
increase the amount of time required to
review the PCN. For the PCN, the
applicant need only provide a
conceptual proposal for compensatory
mitigation that will offset the loss of
aquatic resource functions and values.
However, a detailed mitigation plan
may be submitted with the PCN if the
applicant chooses to submit such a plan.
The District Engineer will evaluate the
compensatory mitigation proposal to
determine If It is adequate to ensure that
the adverse environmental effects of the
proposed work are minimal. Detailed
plans for project-specific compensatory
mitigation projects are usually required
as special conditions of the NWP
authorization. If the proposed
compensatory mitigation is provided
through payment to an approved
mitigation bank or in lieu fee program,
detailed plans are not required because
die Corps may have previously
reviewed the plans for the mitigation
bank or in lieu fee site. It should be
noted that Corps must finish its review,
of the PCN within 45 days of receipt of
a complete PCN; such a time limit
makes It difficult to thoroughly review
and approve detailed compensatory
mitigation plans and schedules.
District engineers will determine
compliance with paragraph (g) of NWP
39 through qualitative methods or defer
to State or local regulatory agencies,
who may require quantitative analyses
to ensure that the project does not result
in more than minimal adverse effects to
water quality or surface water flows.
Statement of Avoidance: Paragraph (f)
of the proposed NWP requires the
applicant to submit a statement with the
PCN which demonstrates that
discharges Into waters of the United
States were avoided and minimized to
the maximum extent practicable and
that additional avoidance and
minimization cannot be achieved. One
commenter favored this requirement,
but a few commenters remarked that the
requirement is unnecessary and
recommended that it be removed. One
commenter stated that the NWP
regulations already require on-site
avoidance and minimization and that
this requirement increases the burden
on the landowner and provides no
environmental benefit. This commenter
went on to say that the Federal Register
notice does not provide any guidance as
to what information is necessary to
fulfill this requirement. Another
commenter stated that this requirement
will be impossible to implement.
Several commenters stated'/hat this
requirement is insufficient,'and that
projects should be subject to more
comprehensive alternatives analysis:
This requirement (now in paragraph
(e) of NWP 39) is similar to the
requirements of General Condition 19,
Mitigation. It merely requires that the
applicant provide a statement
explaining how he or she is complying'
with this general condition. We disagree
that it will create an additional burden
on the project proponent because it will
provide the Corps with the relevant
avoidance and minimization details
early in the PCN review process. In fact,
submission of such a statement with the
PCN Is likely to benefit project
proponents because the Corps personnel
evaluating the PCN will not have to ask
during the PCN review period if
additional avoidance and minimization
can be achieved. We believe that diis
requirement will save time and make
the PCN process more.effective. This
requirement will also encourage project
proponents to think more carefully
about how to further avoid and
minimize adverse effects to waters of
the United States on the project site.
To require a more comprehensive
alternatives analysis is contrary to the
NWPs. NWPs authorize activities with
minimal adverse effects on the aquatic
environment, and if the proposed work
meets the terms and limits of the NWP, .
the applicant cannot be required to
consider off-site alternatives. If the
adverse effects of a particular project are
more than minimal the District Engineer
will exercise discretionary authority and
require an individual permit for the
proposed work. The individual permit
process requires a full alternatives
analysis, Including the consideration of
off-site alternatives.
Since the avoidance and
minimization requirement and the
compensatory mitigation requirement of
the NWP are related, we have combined
paragraphs (f) and (g) of proposed NWP
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39308
A into paragraph (e) of NWP 39.
Compensatory mitigation requirements
for this NWP are discussed below.
Compensatory Mitigation: Paragraph
fg) of the proposed NWP A stated that
rhe permittee must submit a mitigation
proposal to offset the loss of waters of
the United States for activities that
require notification. One commenter
recommended changing this
requirement to specify that the losses of
wetland functions and values should be
offset, not just the acreage loss. This
commenter stated that the proposed
wording is unclear and subject to
various interpretations and should be
consistent with die mitigation
memorandum of agreement (MO A)
signed in 1990.
This requirement has been
incorporated into paragraph (e) of NWP
39. The purpose of compensatory
mitigation is to offset losses of functions
and values of waters of the United
States and ensure that the net adverse
effects on the aquatic environment are
minimal. However, it is important to
allow district engineers the flexibility to
require compensatory mitigation that
provides more benefits to the aquatic
environment. Out-of-kind compensatory
mitigation, such as the establishment"
and maintenance of vegetated buffers
adjacent to streams, may provide more
benefits to the local aquatic
environment than replacing the wetland
filled by the audiorized work. It is also
important to note diat compensatory
mitigation may be required for losses of
other types of waters of the United
States, not only wetlands. District
engineers can require a greater acreage
of compensatory mitigation to replace
the aquatic resource functions and
values lost due the authorized work if
the compensatory mitigation cannot
readily replace the lost functipns.and
values. On the other hand. If the waters
of the United States lost as a result of
the authorized work are low value,
providing few functions and values, a
smaller acreage of compensatory
mitigation may be appropriate to offset
the lost functions and values of that
area.
The mitigation process, as defined In
the Council on Environmental Quality's
regulations at 40 CFR Part 1508.20,
Includes avoidance, minimization, and
compensation. Therefore, we are
providing further clarification for this
requirement by Inserting the word
"compensatory" in front of the word
"mitigation" to state that the type of ,
mitigation required by the District
Engineer is compensation to replace
losses of functions and values of waters
of the United States.
Federal Register/Vol. 64, No. I39/Vyednesday. July 21, 1999/Notices
Two commenters support the
requirement for compensatory
mitigation for losses diat require a PCN.
Several commenters objected to this
NWP because this condition does not
specifically require compensatory
mitigation for losses o( less than l/z acre.
which they believe will result in
substantial cumulative adverse effects
on the aquatic environment. Another
commenter suggested lihat compensatory
mitigation should be required for
impacts to perennial streams. One
commenter stated that [mitigation
proposals should be subject to agency
review. A commenter recommended
modifying this paragraph to allow die
permittee the opportunity to justify why
compensatory mitigation should not be
required for a particular project
It should be noted that paragraph (e)
only requires the submission of a
compensatory mitigation proposal to the
District Engineer with the notification,
and is not a requirement for
compensatory mitigation. The
prospective permittee may submit either
a conceptual or detailed compensatory
mitigation proposal. District engineers
will determine on a case-by-case basis if
compensatory mitigatio'n is necessary to
ensure that the proposed activity will
result in minimal adverse effects on the
aquatic environment, individually or
cumulatively. However! in most cases,
compensatory mitigation will be
required for activities that require
notification to ensure th'at those
activities result only in [minimal adverse
effects on the aquatic environment. In
paragraph (e), we have stated that
compensatory mitlgatloh will normally
be required to offset losses of waters of
the United States, but if the applicant
believes that the adverse effects of the
project on the aquatic environment are
minimal without compensatory
mitigation, dien the applicant can
provide justification with the PCN for
the District Engineer's consideration.
Compensatory mitigation is not
required for activities dial do not
require preconstruction notification,
because the adverse effects on the
aquatic environment caused by those
activities are minimal. In watersheds
where small losses of waters of the
United States have greater potential for
more than minimal adverse effects,
division engineers can regionally
condition die NWP to lower die
notification threshold, which will allow
district engineers to require
compensatory mitigatioi for losses of
less than 1/4 acre of waters of the
United States. For activities that require
Corps-only review of the PCN, agency
review Is not required to review die
compensatory mitigation proposal ,
because the District Engineer will
determine whether or not the proposed
mitigation is appropriate. For PCNs
subject to agency coordination.' Federal
and State resource agencies will have
the opportunity to review die
compensatory mitigation proposal
submitted widi the notification.
One commenter stated thai: buffers
adjacent to any waters of the United
States, not just open water, should be
part of any required compensatory
mitigation.
We concur with this comment and
have stated elsewhere in this notice that
district engineers can consider the'
establishment and maintenance of
• vegetated buffers adjacent to waters of
the United States, including wedands, -
as compensatory mitigation for losses of
waters of the United States. Vegetated
buffers adjacent to waters of the United
States, including open waters and
wetlands, can be considered as out-of-
kind compensatory mitigation because
vegetated buffers are important
components of the aquatic environment
due to the functions they provide, .
especially for maintaining water, quality
and habitat for aquatic organisms.
Vegetated buffers reduce adverse effects
to local water quality caused by adjacent
land use. Forested riparian buffers
provide shade to streams, supporting -,
cool water fisheries. When determining
the appropriate amount of
compensatory mitigation required for
particular projects, district engineers
should reduce die amount of
"replacement acreage" required as
compensatory mitigation by an amount
diat recognizes the value of the
vegetated buffer to the aquatic
environment.
One commenter recommended that
on-site mitigation should be considered
before off-site mitigation and that off-
site mitigation should be accepted only
if on-site mitigation is not
environmentally beneficial. Two
commenters oppose die use of
mitigation banks and in lieu fee
programs to provide compensatory
mitigation for activities authorized by
diis NWP. Another commenter
recommended that where compensatory
mitigation is required, it should be done
in a State-sponsored mitigation bank
widiin die same drainage basin.
The sequencing requirements for
compensatory mitigation recommended
in die previous paragraph have
limitations. Compensatory mitigation
projects, whether diey are individual
projects diat restore, enhance, or create
aquatic areas or are payments l:o
mitigation banks or in lieu fee programs,
should be selected on the basis of their
chance for success and their
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Federal Register Vol. 64. No. 1397Wednesday. July 21. 1999/Nocices
39309
effectiveness at offsetting authorized
losses of waters of the United States. In-
kind and on-site requirements for
compensatory mitigation should be
considered, but not to the exclusion of
what is best for the aquatic
environment. If off-site compensatory
mitigation will provide more benefits to
the local aquatic environment, then that
form of compensatory mitigation should
be selected. On-site wetland creation
projects are often unsuccessful because
of changes to local hydrology caused by
the authorized activity, which may
prevent the development of a functional
replacement wetland. On-site
restoration may have a better chance of
success, but success may not be
achieved because'of changes, in land use
in the vicinity of the authorized work.
It is.often better to utilize off-site
wetland creation, restoration, and
enhancement projects, including
mitigation banks and in lieu fee
programs, if they are appropriate and
available. The use of mitigation banks to •
provide compensatory mitigation for
losses of waters of the United States
authorized by NWPs should not be
limited to State-sponsored mitigation
banks. Permittees should be allowed to
use any mitigation bank in the area that
replaces functions and values of waters
of the United States, including
wetlands, lost due to the authorized
work. When reviewing compensatory
mitigation proposals, district engineers
will consider what is best for the aquatic
environment, including requiring
vegetated buffers to open and flowing
waters and wetlands.
One commenter recommended that
the NWP contain a provision requiring
all remaining wetlands on the parcel to
• be protected by a conservation easement
to prohibit any future development on
the property.
We disagree, because such a
requirement can be considered a taking
of private property, unless the applicant
agrees to preserve the remaining
wetlands on the property as
compensatory mitigation for authorized
losses of waters of the United States. If
there are any streams or other open
waters on the project site, the District
Engineer can require the permittee to
establish and maintain vegetated buffers
adjacent to those waters as
compensatory mitigation. The vegetated
buffers should be protected by a
.conservation easement, deed restriction.
or odier legal means.'
Use of This NWP With Other NWPs: J
Paragraph (h) of the proposed NWP A
addressed the use of this NWP with
other NWPs. This paragraph has been
changed to paragraph (0, and only
addresses die PCN threshold when this
NWP is used with other NWPs. The use
of NWP 39 with other NWPs 'is
addressed in the proposed modification
of General Condition 15. Paragraph (f)
has been modified to reflect the changes
in the PCN threshold discussed above.
One commenter supported this
requirement of paragraph (h) of the
proposed NWP A. Another'commenter
stated that this NWP should not be
stacked with odier NWPs because diis
NWP audiorizes all activities associated
with the single and complete project.
One commenter said that this NWP
should not be combined with other
NWPs to authorize permanent, above-
grade fills. One commenter stated tiiat
this NWP should not be combined with..
other NWPs.
Although the proposed NWP 39
authorizes the construction of building
pads, foundations, and attendant
features for a single and complete
residential, commercial, orinstitutional
development, diere may be
circumstances where other NWPs are
necessar^fp' authorize discharges of
dredged offill material into waters of
the United States for related activities
diat occur in types of waters not covered
by diis NWP. It is important to consider
diese additional activities as part of die
single and complete project. For ' . ' "
example, a community boat ramp diat
can be audiorized by NWP 36 may be
constructed in tidaiwaters for a new
residential subdivision that is
authorized by NWP 39. In this situation,
when NWP 39 is combined with NWP
36, the total loss of waters of die United
States cannot exceed the indexed
acreage limit for NWP 39. The use of
more dian one NWP to. authorize a
single and complete project is addressed
in the proposed modification of General
Condition 15.
One commenter stated that the
stacking limitation assumes diat projects
widi greater than 3 acres of impact to
waters of the United States exceed the
minimal adverse effects threshold and
diat it is illogical for die Corps to
assume diat each NWP, if used alone,
will result in minimal impacts, but if
used widi odier NWPs will result in
more dian minimal adverse effects. This
commenter asserted that the Corps has
no evidence to support its contention
that NWP stacking in excess of 3 acres
will result in more than minimal
impacts and recommended that the
Corps eliminate this condition of the
NWP because the PCN requirement is
sufficient to ensure that the NWP
audiorizes only those activities with
minimal adverse effects. This
commenter also stated that the stacking
restriction is contrary to 33 CFR Part
330.6(c).
For the NWPs, we establish acreage
limits that will ensure that the
authorized activities will not result in
more than minimal adverse effects on
die aquatic environment, individually
or cumulatively. There may be some
circumstances (e.g., projects in low
.value waters of the United States) where
larger impacts result in minimal adverse
effects. If a particular district has a large
number of these types of projects, then
that district can develop a regional
general permit to authorize diose
activities. When more dian one NWP is
used to audiorize a single and complete
project, the District Engineer must
consider the additive adverse effects on
the aquatic environment. Each NWP has
'ari acreage limit based on a minimal
adverse effects determination made only
for that NWP. By combining NWPs, the
sum of the acreage losses and the sum
of die adverse effects of diose losses on
die aquatic environment increases die
probability diat die minimal adverse
effects direshold will be exceeded.
Since the NWPs can authorize only
those activities that result in minimal
adverse effects on the aquatic
environment. Individually or. ,
cumulatively, a prohibition against •
stacking NWPs to exceed a specified
acreage, limit is necessary. General
Condition 15 is not contrary to 33 CFR
Part 330.6(c) because this regulation
does not eliminate the need to comply
with Section 4Q4(e) of the Clean Water
Act and 33 CFR Part 323.2(h).
Two commenters stated diat any
stacking that occurs widi this NWP
should have an acreage limit equal to ^
die lower acreage limit for any of die
NWPs involved. Another commenter '
suggested that any stacking that occurs
widi this NWP should have an acreage
limit equal to the higher acreage limit
for any of die NWPs involved. Two
other commenters stated that paragraph
(h) of die proposed" NWP A should be
revised to specify diat total acreage
cannot exceed 3 acres or the indexed
acreage limit of die NWP, whichever is
less. One commenter recommended that
diis NWP should not be stacked with
NWP 29.
We disagree with the first comment in
die previous paragraph because it would
render this NWP useless in most
situations. For example, NWP 36 limits
die construction of boat ramps to a
maximum width of 20 feet and a
maximum discharge of 50 cubic yards.
By requiring a combination of this NWP
and NWP 36 to be subject to the lesser
acreage limit of NWP 36, NWP 39 would
essentially authorize no residential,
commercial, or institutional
development activities when combined
with NWP 36. We are proposing to
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39310
modify General Condition 15 to allow
the use of more than one NWP to
authorize a single and complete project.
as long as che acreage loss does not
exceed the highest specified acreage
limit of che NWPs used to authorize that
activity. The statement in paragraph (0
regarding che PCN threshold has been
changed to include the PCM threshold of
V4 acre.
We believe that prohibicing the use of
NWP 29 with NWP. 39 is unnecessary
and have not added it to the NWP
NWPs 29 and 39 are used by different
groups of landowners. NWP 29 can be
used only by che present or future •
occupancs of che single family
residence. NWP 39. on the other hand.
can be used by others, such as concract
builders and developers, to construct
single family residences. Paragraph (d)
scaces chat only single and complece
projects can be authorized by NWP 39.
If the Discricc Engineer establishes an
exemption Co che subdivision provision
of this NWP. NWP 29 may be used by'
an owner of a subdivided parcel co
construct a single family residence. If
the construction of another single family
residence on the property has
independent utility and is not part of
the previously authorized single and
complete project, then either NWP 29 or
NWP 39 may be used to auchorize that
single family residence, provided the
authorized work results in minimal
adverse effects on che aquatic
environment.
Other comments: A few commenters
recommended chat the Corps add a
definition of che Cerm "single and
complece project" to the NWP; '
^ The Corps has defined the term
"single and complece project" in the
regulations governing the NWP program
(see 33 CFR 330.2(i)). This definition
applies to all of the NWPs, including the
new NWPs proposed today. This
definition is repeated in the
"Definitions" section of the NWPs. For
NWP 39, the acreage limit is based on
the size of the single and complete '
project (i.e.. che foocprint or areal extent
of the project). For the purposes of this
NWP. a definition of "project area" is '
Included In the "DefiniCions" section
The concepts of "single and complete
project' and "project area" must also be
considered in the context of the
subdivision provision of this NWP Iii
the July 1, 1998, Federal Register
notice, we proposed General Condition
16, entitled "Subdivisions." The
purpose of proposed General Condition
16 was to define, for proposed NWPs A
and B, the single and complete project
in terms of land parcels. Since proposed
NWP B was withdrawn, we have
determined that a separate general
condition addressing subdivision of
land is unnecessary dince it would only
apply to NWP 39. Therefore, we have
incorporated the text! of proposed
General Condition -161 into the text of
NWP 39, with some minor changes. The
term "parcel" is used in the subdivision
provision of NWP 39|to determine the
aggregate total loss authorized by the
NWP and the appropriate NWP acreage
limit. The project area may be the same
as the size of the parclsl. but more than
one single and complke project may be
built on a single parcel.-.
Multi-phase projects may be
considered as separate single and
complete projects depending on
whether or not one phase has
independent utility from another phase.
If a phase of a multi-phase project has
independent utility from the other
phases, then that independent phase -
can be considered as a| separate single
and complete project and may be
eligible for the maximum acreage limit
as determined by the project area. Each'
rJhase of a project can be authorized
with the maximum acreage, provided
each phase has independent utility from
the other phases and the work results
only in minimal adverse effects "on" the
aquatic environment. Multiple parcels
can also, be combined for a larger single
project. The acreage limit for a
combined larger project is base'd on the
indexed acreage limit for the prefect
area. I
Two commenters suggested that
authorizing the expansion of projects
with this NWP is contradictory since
this NWP is applicable only for single
and complete projects.:
We disagree, since a project
proponent can expand an existing single
and complete project provided the terms
and limits of the NWP are not exceeded
and the adverse effects on the aquatic
environment are minimal. When
evaluating such request^ for NWP
authorization, we add thie previously
authorized impacts to die proposed
impacts to determine if Jhe proposed
expansion exceeds the acreage limit. If
the PCN threshold is exceeded, the
applicant is required to notify the
District Engineer. The District Engineer
reviews the PCN and determines if the
proposed work is authorized by NWP.
One commenter expressed concern
that a subdivision developer could
construct the project, sell the lots, and
the new owners would be eligible for
NWP authorization to do further work
on their lots. Another cojmmenter stated
that after a project is authorized by this
NWP, further development on the
property should be prohibited.
We are proposing to add a subdivision
provision to this NWP to! prevent
piecemealing of projects chat exceed che'
acreage limit. For real estate
subdivisions created or subdivided after
October 5 1984, the aggregate loss of
raT ±he United States authorized
by this NWP cannot exceed the acreage
hrnit based on the index in paragraph
(a) If the owners of the property want
to do additional work that would exceed
the indexed acreage limit under
paragraph (a), then they must obtain
another type of Corps permit, such as an
individual permit or a regional general
permit, unless the additional work has
independent utility. We cannot prohibit
additional activities on the project site
unless it is in the public interest to do-
so. ' • .
x,,T£ree commenters believe that this
NWP would authorize considerable
impacts to floodplains and riparian
zones and should not authorize
activities in these areas, or should be
limited to those activities with
unavoidable impacts that provide
essential public services. One
commenter stated that a net gain in
wetlands cannot be achieved if
residential, commercial, and
institutional development activities are
authorized in wetlands.
In the October 14, 1998, Federal
Register notice we requested comments
on limiting the use of the NWPs to
authorize activities in the 100-year
floodplain as mapped by the Federal
Emergency Management Agency
(FEMA) on its Flood Insurance Rate
Maps. In response to the October 14.
1998, Federal Register notice, proposed
General Condition 27 has been added to
the NWPs. General Condition 27
prohibits the use of NWP 39 to
authorize permanent, above-grade fills
in waters of the United States within the
100-year floodplain.
Property owners are entitled to
reasonable use of their property, the
Corps cannot prohibit all of these
activities in wetlands. However, NWP
applicants are required to avoid and
minimize adverse effects to waters of
the United States on-site to the.
maximum extentpracticable (see
General Condition-19). For those
unavoidable impacts, we can require
compensatory mitigation to ensure chat
the adverse effects on the aquatic
environment are minimal. In die July 1,
1998, Federal Register notice, we cited
data from the past use of NWP 26,
which demonstrates that during the
period of May 1, 1997, through
December 31, 1997, more than 3 acres
of compensatory mitigation was
required for every acre of wetland lost
as a result of residential, commercial,
and institutional development activities.
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Federal Register 'Vol. 64. No. 1397Wednesday, July 21. 1999/Notice's
39311
One commeruer stated that the term
"measurably degrade" in paragraph (i)
of the proposed NWP A needs to be
defined. Another commenter said that
chis term .is unnecessary because any
measurable degradation of water quality
would occur after the work is
completed. This commenter went on to
sny that this condition implies that if
the degradation is not measurable, then
it is authorized by the NWP.
We have rewritten this condition
(now in paragraph (g)) to replace the
term "measurably degrade" with
language that is more consistent with
General Condition 9. The intent of this
condition is to ensure, diat the
authorized work does not result in more
• than minimal degradation of local water
quality. Vegetated buffers adjacent to
onen or flowing waters and wetlands
and adequate stormwater.management
facilities-can minimize the adverse
effects of the development on local •
water quality. •
One commenter stated that the
preamble for this NWP in the July 1,
1998, Federal Register notice contains ,
several conditions that are not included
in the text of the NWP and that these
conditions should be consistent with
(he final NWP.
In the preamble discussion of the
proposed NWP, we did not include .
conditions dial were not incorporated
into the text of die NWP itself. In die
preamble for die NWP, we reiterated -
some of the terms and conditions of diis
NWP, widi discussions of die intent and
. meaning of those conditions.
A commenter stated diat die eight
months of data presented by the Corps
in the July 1, 1998, Federal Register
notice is inadequate to assess die
adverse effects that may result from die
use of this NWP. The commenter
recommended that at least one and a
half years of data should be used.
We have collected additional data
since die July 1, 1998, Federal Register
'' notice for the use of NWP 26 for
activities that could be audiorized by
this NWP. We have collected this data
for over a year and will consider diis
data in our Environmental Assessment
for NWP 39. This data will be used to
estimate die potential losses of waters of
die United States diat will result from
die use of diis NWP. This data will
include the losses of waters of the
United States audiorized by NWP 26, as
well as die gains provided by
compensatory mitigation. •
One commenter requested diat diis
NWP require the establishment and
maintenance of vegetated buffers
adjacent to open waters and streams,
and that these vegetated buffers should
conservation easements, or other legal
means. '
We concur with this comment, and
have added a new paragraph (i) to NWP
39 to require, to die maximum extent
practicable, the establishment and
maintenance of-vegetated buffers
.adjacent to open waters and streams, if
those types of waters of the United
States are present on die project site.
Paragraph (i) also requires die
protection of these vegetated buffers by
deed restrictions, conservation
easements, or other legal.methods. For
activities requiring notification, die
composition of die vegetated buffer, in
terms of plant species, and the
appropriate width of die vegetated
buffer, are determined by the District
Engineer. For activities authorized by
this NWP diat do not require
•notification, the permittee should.
establish and maintain vegetated buffers
diat are wide enough to protect water
quality and are comprised of native
plant species. Division engineers can
also regionally condition this NWP to
prescribe vegetated buffer requirements
for activities that do not require " ;
\otification.
One commenter stated that diis NWP
would be overly burdensome to
builders. Another commenter believes
diat audiorizing residential,
commercial, and institutional
development activities in all non-tidal
waters of die United States will result in
too much workload for Corps districts.
The purpose of the proposed NWP is
to efficiently audiorize residential,
commercial, and institutional
development activities diat result in
minimal adverse effects on die aquatic
environment. NWP 26 audiorized many
of these same activities in isolated
waters and headwaters. The proposed
NWP authorizes diese activities in all
non-tidal waters of die United States,
excluding non-tidal wedands adjacent
to tidal waters. Proposed General
Condition 27 prohibits the use of NWP
39 to audiorize permanent, above-grade
fills in waters of die United States
within die 100-year floodplain, which
will further limit the use of NWP 39 in
non-tidal waters. It is our experience
diat many builders design dieir projects
to comply with the NWPs, rather tiian
construct larger projects that require
individual permits. Altiiough die
proposed NWP has additional
conditions diat were not previously
included widi NWP 26, these conditions
are intended to reduce adverse effects
on die aquatic environment. Developers
should be able to design dieir projects
to comply widi these conditions and
qualify for NWP authorization. Another
Jmnortant point to consider is diat
NWPs are optional permits. If the
permittee does not want to comply with
ail of die terms and conditions of an
NWP, then he or she may request
audiorization through the individual
permit process or apply for
authorization by a regional general
permit, if such a general permit is
available.
This NWP is subject to proposed
General Conditions 25, 26. and 27,
which will substantially reduce its
applicability. General Condition 25
prohibits die use of this NWP to
authorize discharges into designated
critical resource waters and wetlands
adjacent to diose waters. General
Condition 26 prohibits die use of diis
NWP to authorize discharges resulting
in the loss of greater than 1 acre of
impaired waters, including adjacent
wedands. NWP 39 activities resulting in
die loss of 1 acre or less of impaired
waters, including adjacent wedands, are
prohibited unless prospective permittee
demonstrates to the District Engineer
that die activity will not result'in further
impairment of die waterbody.
Notification to die'District Engineer is
required for all discharges into impaired
waters and dieir adjacent wetlands.
General Condition 27 prohibits the use
of NWP 39 to audiorize permanent,
above-grade fills in waters of die United
States within the 100-year floodplain.
We believe that the terms and
condidons of the proposed new and
modified NWPs, especially the
requirements of die diree new NWP
general conditions, will result in a
substantial increase in die number of
individual-permits processed by our
district offices. Districts will use die ,
proposed new and modified NWPs,
widi regional conditions, to prioritize
dieir workload in non-tidal waters. In
response to a PCN, district engineers
can require special conditions on a case-
by-case basis to ensure that die adverse
effects on die aquatic environment are
minimal or exercise discretionary
authority to require an individual
permit for die work. The issuance of diis
NWP, as widi any NWP, provides for
die use of discretionary audiority when
valuable or unique aquatic areas may be
affected by these activities. Proposed
NWP A is designated as NWP 39, widi
die modifications discussed above.
40. Agricultural Activities .
In the July 1. 1998, Federal Register
notice, we proposed to modify diis
NWP, which originally authorized only
die construction of foundations pr
building pads for farm buildings in
fanned wetlands, to audiorize
discharges into non-tidal wetlands foe
the purposes of increasing agricultu>:?l
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Federal Register Vol. 64. No. 139/Wednesday. July 21, 1999/Notices
production. As a result of the comments
'.VG received concerning this NWP. we
have suTirantially changed the
proposed modification of NWP 40 to
authorize the following activities: (1)
Discharges into non-tidal wetlands.
excluding other waters of the United
States (eg,, open or flowing waters) and
non-tidal wetlands adjacent to tidal
waters, conducted by participants in
U.S. Department of Agriculture (USDA)
programs to increase agricultural
production, (2) discharges into non-tidal
wetlands, excluding other waters of the
United States (e.g., open or flowing
waters) and non-tidal wetlands adjacent
to tidal waters, conducted by
agricultural producers that are not
participants In USDA programs to
increase agricultural production; (3)
discharges into farmed wetlands for the
construction of building pads for farm
buildings, and (4) the relocation of
existing serviceable drainage ditches
constructed in non-tidal streams. For
activities authorized by paragraph (a) of
this NWP, the Natural Resources
Conservation Service (NRCS) will
determine if the proposed work meets
the terms and conditions of NWP 40,
unless die permittee also proposes to
construct building pads for farm
buildings or relocate greater than 500
linear feet of existing serviceable
drainage ditches constructed in non-
tidal screams. For discharges resulting in
the loss of greater than 'A acre of non-
tidal wetlands by non-participants in
USDA programs to increase agricultural
production, the construction of building
pads for farm buildings, and/or the
relocation of greater than 500 linear feet
of existing serviceable drainage ditches
constructed in non-tidal streams, the
Corps will determine if the proposed
work is authorized by NWP 40. Division
engineers will not regionally condition
paragraph (a) of this NWP, to ensure
that this NWP is consistently applied by
NRCS and agricultural producers across
the country. These proposed changes
are discussed in more detail below.
General Comments: Many
commenters objected to the proposed
modification and only a few supported
the proposed modification of NWP 40.
Of those who objected to the proposed
modification, the reasons for their
objections include: (1) The NWP would
authorize substantial cumulative losses
of wetlands, especially in the prairie
pothole region; (2) die use of the NWP ,
would result In substantial degradation
of water quality; (3) the NWP does not
comply with Section 404(e) of the Clean
Water Act; (4) the NWP delegates some
of the Corps responsibilities to NRCS,
which lacks the resources to Implement
the statutory requirements of the Clean
Water Act; (5) the NWP [is contrary to
Swampbuster; and (6) the proposed
modification is contrary!to the goals of
programs that restore and enhance
%vetlands, such as the Conservation
Reserve Program (CRP) and the
Wetlands Reserve Program (WRP).*
This NWP complies with the
requirements of Section 404 (e) of the
Clean Water Act because it authorizes
activities that are similar in nature and
will result in minimal adverse effects on
die aquatic environment. As widi all
other NWPs, district engineers will
monitor die use.of NWP 40 on a
watershed basis to determine if the use
of NWP 40 and other NWPs results in
more than minimal cumulative adverse
effects on the aquatic environment,
including degradation of local water
quality. States, Tribes, and EPA will
also make local determinations for
compliance with Section 401 of the
Clean Water Act and determine if
activities authorized by NWP 40 will
violate local or State water quality
standards. If die cumulative adverse
effects within a particular watershed are
more dian minimal, dien die District
Engineer will suspend or revoke die use
of die NWPs in accordance widi 33 CFR
Part 330.5. For activities[in non-tidal.
wetlands by USDA program participants
to increase agricultural production,
NRCS will review the proposed work
and determine if it is authorized by
NWP 40. In diese cases, each landowner
must submit a report to the District
Engineer so that the use of NWP 40, the
losses of waters of the United States,
and compensatory mitigation can be
monitored. For activities; that require
notification to the District Engineer (i.e.,
discharges resulting in the loss of
greater dian l/\ acre of non-tidal
wedands by non-participants in USDA
programs to increase agricultural
production, discharges into farmed
wedands for the construction of pads for
farm buildings, or the relocation of
greater than 500 linear feet of drainage
ditches constructed in non-tidal
streams), die District Engineer will
review die PCN and determine if die
adverse effects-on die aquatic
environment resulting from die
proposed work will be minimal. If die
proposed work involves botii activities
in non-tidal wetlands to [Increase
agricultural production and eidier die
relocation of greater dian 500 linear feet
of drainage ditches constructed in non-
tidal streams or die construction of pads
for farm buildings, die landowner must
submit a PCN to die Corps, and die
District Engineer will determine if die
proposed work is authorized by NWP
40. For those activities that require
notification, the District Engineer will
determine if the proposed work will .
result in minimal adverse effects on die
aquatic environment. If die. proposed
work will result in more than minimal
adverse effects on the aquatic
environment, discretionary audiority
will be exercised and an individual
permit will be required.
One of the goals of the proposed
modification of this NWP is to reduce
duplication between the Corps and
NRCS, reduce confusion, and provide
• some regulatory relief to agricultural
producers. This is one of die goals of die
Administration's wetlands plan, which
is to make die wetlands regulatory
program fair, flexible, and effective.
This NWP does not delegate the Corps
responsibilities under Section 404 of die
Clean Water Act to NRCS, but allows
activities with minimal adverse effects
on die aquatic environment to proceed
widiout duplicate review by two
Federal agencies. This NWP does not
require NRCS to implement the Clean
Water Act. It merely addresses certain
situations where the Clean Water Act
and Swampbuster have duplicate
requirements. District engineers will
monitor die use of NWP 40 to assess die
cumulative adverse effects on die
aquatic environment, through, reports
submitted by landowners and those
activities reviewed by die Corps on a
case-by-case basis.
This proposed modification of NWP
40 is not contrary to the CRP and die
WRP, which are voluntary programs.
Participation in diese programs by
agricultural producers is not mandatory.
Although the CRP and WRP are
important conservation programs, it is
important to note dial agricultural
producers may need to alter dieir land
to increase production and remain
competitive widi odier agricultural
producers. NWP 40 audiorizes activities
in non-tidal waters of die United States,
excluding non-tidal wedands adjacent
to tidal waters, to allow agricultural
producers to increase production, as
long as those activities have minimal
adverse effects on die aquatic
environment, individually or
cumulatively. Bodi die Corps and NRCS
can require compensatory mitigation to
offset losses of waters of die United
States audiorized by this NWP to ensure
that die adverse effects on die aquatic
environment are minimal. It is
important to note dial draining and
filling wetlands to increase agricultural
production is often reversible.
Agricultural lands diat were previously
wedands are often die easiest to restore
because they require less effort and
expense to restore than wedands diat
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39313
were filled to creace residential
subdivisions or commercial facilities.
Although this NWP may be used to fill
.a particular area to increase agricultural
production, that area may be restored at
a later time.
A commenter stated that the proposed
modification is too restrictive and
should be equitable with other NWPs.
because agricultural activities and other
more potentially destructive activities.
such as the construction of residential,
commercial, and institutional
developments, should be held to the
same standard. One commenter
requested that the preamble to the NWP
state that the use-of the NWP will help
achieve die goal of die Clean Water
Action Plan of "no net loss" and ensure
consistency with the Federal
Agriculture Improvement and Reform
Act of 1996, which exempts wetland
conversions from the Swampbuster
provisions of the Food Security Act as
long as wetland functions, values, and
..-acreage are fully offset. One commenter
recommended modifying the NWP to be
consistent with the limits associated
with the minimal effects criteria
regionally established under the Farm -
Bill. A number of commenters believe
that the proposed modification of NWP
40 is unnecessary because ongoing farm
operations in farmed wetlands are
exempt under Section 404(f) of the
Clean Water Act.
We agree that the modifications to
NWP 40 proposed in the July 1, 1998,
Federal Register notice placed greater
restrictions on agricultural producers
than proposed NWP A (now designated
as NWP 39) did on residential,
commercial, and institutional
developers. We have'attempted to make
NWPs 39 and 40 more equitable in .
terms of applicable waters and
determining what constitutes a single
and complete project for these NWPs.
Bodi NWPs 39 and 40 authorize
activities in non-tidal waters of the
United States, excluding non-tidal
wetlands adjacent to tidal waters. We
have retained the separate provisions for
playas, prairie potholes, and vernal
pools from NWP 40,. with an indexed
acreage limit and a maximum limit of 1
acre, which is achieved for farm tracts
90 acres or greater in size. For proposed
' NWP 39, the single and complete
project will be based ,on project area. For
the proposed modification of NWP 40,
a single and complete project will be
based on farm tract size. Farm tracts will
be identified by the Farm Service
Agency. The definition of the term
"farm" based on reporting to the
Internal Revenue Service has been
removed. In the "Definitions" section of
die NWPs, the'term "farm" has been"
replaced with "farm tract." The
definition Of.tKS; term "farmXfracf;' has
been raken frcm'the Farm Service
Agency regulations at 7 CFR Part 718.2.
In accordance with the provisions of
the Food Security Act, compensatory
mitigation will be required for activities
authorized by paragraph (a) of this NWP
to fully offset losses of non-tidal
wetlands. District engineers will
determine on a case-by-case basis if
compensatory mitigation is necessary to
.offset losses of waters of the United
States resulting from activities
audiorized by paragraphs (b), (c), and
(d) of this NWP to ensure that those
activities result in minimal adverse
effects on the aquatic environment.
NRCS and the Corps, in cooperation
with EPA, FWS, and NMFS, will
develop joint compensatory mitigation
guidance to provide consistency in
compensatory mitigation requirements
necessary for the implementation of
NWP 40. Since the proposed
modification of NWP 40 is intended to
have national applicability, it is
impractical to modify the NWP to be
consistent with local minimal effects
criteria established regionally under die
Farm Bill. This NWP is applicable in all
non-tidal wedands, not just farmed
wetlands. The conversion of waters of
the United States to anodier use is not
exempt under Section 404 (f) of the
Clean Water Act, which makes diese
modifications to NWP 40 necessary to
satisfy therequirements of Section 404.
Activities Authorized by NWP 40: One
commenter supported, the intent of the
proposed modification, but stated that
die additional activities should be
audiorized by another NWP, not by
modifying the existing NWP 40.
Anodier commenter stated that a
separate NWP should be issued to
audiorize the installation of drainage
tiles and drainage ditches, and that die
structure of this new NWP should be
more like the proposed NWP for
residential, commercial, and
institutional activities. A commenter
suggested that NWP 39 should be used
instead of NWP 40 to authorize
discharges in waters of the United States
to increase agricultural production. One
commenter recommended limiting the
NWP to maintaining farm acreage, not
expanding productive farm area. Two
commenters requested the removal of
mechanized landclearing from the list of
activities authorized by the NWP,
stating that only activities in cropland
should be authorized by the NWP. Two
commenters stated that mechanized
landclearing should be considered
exempt under Section 404(f)(D of the
Clean Water Act and not included in the
NWP. One commenter stated that the
proposed modification to NWP 40
illegally brings two Farm Bill
exemptions into the Federal wetlands
program, namely "categorical minimal
effects" and "minimal effects
mitigation."
We disagree that there should be a
separate NWP for activities that increase
agricultural production. We believe that
it is more appropriate to modify NWP
40. which previously authorized only
the construction of building pads and
foundations'for farm buildings in
farmed wetlands. The purpose of die
proposed modification of NWP 40 is to
authorize all activities for_increasing
agricultural production and
constructing farm buildings. By
including'all of these activities in T
single NWP, there will be less confusion
for the regulated public and district
engineers will be better able to assess
die adverse effects on die aquatic
environment for single and complete
projects. We are proposing to'make die
modifications to NWP 40 similar to die
proposed NWP 39 by utilizing indexed
acreage limits and by .making both
NWPs applicable to non-tidal wetlands,
excluding non-tidal wetlands, adjacent
to tidal waters. The indexed acreage
limit for NWP is applicable only for
discharges resulting in die loss of
playas, prairie podioles, and vernal
pools, with a maximum acreage limit of
1 acre. We are proposing to utilize a
simple 2 acre limit for discharges into
odier.types of non-tidal wetlands to
increase agricultural production. The
proposed modification of NWP 40 has a
smaller maximum acreage limit (i.e.. 2
acres) than NWP 39 (i.e., 3 acres). The
lower maximum acreage limit for NWP
40 is necessary to ensure that the NWP
authorizes only activities with minimal
adverse effects on the aquatic
environment, because district engineers
will not receive notifications for many
activities authorized by this NWP.
Division and district engineers cannot'
impose regional or case-specific
conditions on paragraph (a) of this
NWP, so that NRCS can implement this
part of NWP 40 consistendy uiroughout
die country: In addition, district
engineers cannot revoke authorizations
for activities authorized by paragraph (a)
of NWP 40 on a case-by-case basis, but
division engineers can revoke the
provisions of paragraph (a) of NWP 40
within a state, geographic region, or a
particular waterbody. However, regional-
conditions can be added to paragraphs
(b), (c), and (d) of NWP 40, since the
Corps is responsible for reviewing these
activities. We have changed die
applicable waters for the proposed
modification of NWP 40 to be consistent
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Federal Register/Vol. 64. No. 139/VVednesday, July 21, 1999/Notices
with most of the new NWPs. Proposed
NWP 39 cannot be used to increase
Agricultural production instead of NWP
40, because NWP 39 specifically
authorizes only building pads and
Attendant features for residential.
commercial, and institutional
developments. Activities that increase
ngricultural production are not included
in N'.VP 39. although the construction of
a farm house used as a residence on a
farm may be authorized by NWP 39.
Mechanized landclearing may result
in a discharge of dredged or fill material
into waters of the United States and
require a Section 404 permit. We
disagree that the NWP should be limited
to areas currently used as cropland. It
would be inequitable to agricultural
producers to limit use of the NWP only
to those areas currently used for
agricultural production. Mechanized
landclearing is not exempt under
Section 404(f)(l) if it converts a water of
the United States into a use to which it
was not previously subject, such as the
mechanized landclearing of a forested
wetland to convert it into cropland (see
Section 404(0(2) of the Clean Water
Act).
Categorical minimal effect
determinations and minimal effects
mitigation are provisions of the 1996
Farm Bill and 1985 Food Security Act.
The categorical minimal effects
determination is not an exemption from
the permit requirements of Section 404
of the Clean Water Act. It merely allows
the landowner to maintain USDA farm
program eligibility for activities that
convert a wetland to increase
agricultural production, provided the
activity has minimal effects on the
hydrologlcal and biological functions of
the wetlands in the vicinity.
One commenter requested
clarification of the NWP to state that it
authorizes activities for the purposes of
improving production on existing
agricultural land, because the
commenter believes that the proposed
wording of the NWP allows conversion
of land not previously used for
agricultural purposes. Another
commenter recommended that, In
addition to activities regulated under
the National Food Security Act Manual
(NFSAM), those activities considered,
exempt under NFSAM (i.e., where the
land Is not currently in agricultural
production) such as the construction of
grassed waterways, storage facilities,
and impoundments should be
authorized by the NWP. One commenter
recommended that the NWP authorize
the construction of farm ponds, when
they are subject to the recapture
provision of Section 404(0(2) and are
The proposed modification of NWP
40 authorizes discharges of dredged or
fill material into non-tidal waters of the
United States, excluding non-tidal
wetlands adjacent to tidal waters, for the
purpose of increasing agricultural
production, including areas not
currently used for agricultural
production. This NWPl authorizes the
construction of grassed waterways,
storage facilities, and impoundments in
non-tidal wetlands, provided their
purpose is to increase agricultural
production. In certain circumstances,
the construction of farm ponds is
exempt from Section 404 permit
requirements, the proposed .
modification of this NWP authorizes the
construction or expansion of farm ponds
used for agricultural purposes (e.g..
irrigation ponds) that are not eligible for
the Section 404(0 exemption, if the farm
ponds are constructed in non-tidal
wetlands, excluding non-tidal wetlands
adjacent to tidal waters, and do not
involve discharges of dredged or fill
material into stream beids or other open
waters. The only activity authorized by
this NWP in open waters is the
relocation of non-tidal streams that have
been channelized as drainage ditches.
The construction of farm ponds in
stream beds or the construction of
ponds for purposes other than
increasing agricultural production may
be authorized by other NWPs, a regional
general permit, or an individual permit.
Scope of the NWP: A[ number of '
commenters recommended limiting the
NWP only to wetlands that are currently
frequently cropped: Tv/o commenters
suggested that the NWP; should
authorize discharges only in isolated
wetlands and should not authorize
draining of wetlands. Several
commenters stated that agricultural
activities in naturally vpgetated.playas,
prairie potholes, and vernal pools
should not be included; in the NWP.
Limiting the scope of applicable
waters of the proposed modification of
this NWP only to frequently cropped or
farmed wetlands would be inequitable
to farmers, when compared to the
applicable waters for NWP 39. District
engineers will monitor the use of this
NWP to ensure that it authorizes only
those agricultural activities in non-tidal
waters of the United States, excluding
non-tidal wetlands adjacent to tidal
waters, that result in minimal
cumulative adverse effects on the
aquatic environment Plstrict engineers
will receive notification for discharges
into non-tidal wetlands by non-
participants in USDA programs if the
discharge results in the loss of greater
than 1/4 acre of non-tidal wetlands, die
buildings, and/or the relocation of
greater than 500 linear feet of existing
serviceable drainage ditches constructed
in non-tidal streams. These notifications
will be reviewed by District Engineers to
ensure that the proposed work will
result,in minimal adverse effects on the
aquatic environment. We have not
removed the specific provisions relating
to playas, prairie potholes, and vernal
pools to ensure that discharges into'
those types of non-tidal wedands do not
result in more than minimal adverse
effects on the aquatic environment. To
ensure that the provisions for playas,
prairie podioles, and vernal pools are
implemented accurately for those
wetland types, we are proposing
definitions for these terms in the
"Definitions" section of the NWPs. The
proposed definitions are based on
geographic, hydrological, and vegetation
characteristics. The proposed
definitions were derived from
information from technical sources on
identifying and delineating wetlands. -
We are proposing to modify the
applicable scope of waters for NWP 40
from all non-tidal waters of the United
States, as proposed in the July 1, 1998,
Federal Register notice, to non-tidal
waters, excluding non-tidal wedands
adjacent to tidal waters, to make it
consistent with most of the new NWPs.
Acreage limits: Comments on acreage
limits for the proposed modification of
this NWP are divided into two
categories. One category addresses the
basis for determining acreage limits for
a single and complete project (i.e.,
whedier NWP 40 should apply to one
entire farm or to a single farm tract). The
other category of comments addresses
the maximum acreage loss authorized
by this NWP.
Two commenters favored the use of
the term "farm" to define the single and
complete project for the NWP. One
commenter objected to the use of "farm"
in the NWP, stating that a person who
owns more than one farm could use the
NWP at each farm for the maxiinum
acreage limit. One commenter stated
that the proposed definition of "farm" is
confusing and would unfairly restrict
the use of NWP 40. A few commenters
stated that acreage limits should not be
linked to farm size. One of these
commenters objected to basing the
acreage limit on the Internal Revenue
Service's definition of a "farm" because
NRCS personnel would have to review
copies of the landowner's tax returns to
" verify the number of tracts with the
farm. This commenter recommended
diat the Corps determine single and
complete projects for NWP 40 based on
"farm tracts" as identified by the:Eatm
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Federal Register
64, No. 139/Wednesday, July 21
1999
39315
suggested applying the acreage limit to
rhe individual USDA field number or'
rhe individual parcel. One commenter
requested that the aggregate acreage
limit apply only to the property, not the
farmer. One commenter advocated the
use of "farm tracts" for this NWP
because the farm tract, noc the farm, is
rhe basic unit of land ownership. This
commenter stated that many farms
consist of different tracts geographically
separated from each other. Farm tracts"
remain constant in size and
configuration, but may be sold; leased,
or traded between farms. A couple of
commenters opposed the use of "farm
tracts" to determine the acreage limit of
NWP 40. One of these commenters
reasoned that the use of farm tracts
would result in substantial losses of
wetlands because of multiple use of the
NWP by a large farm operation that
owns many farm tracts. One'commenter
stated that impacts to waters of the
United States are not dependent on farm
size.
One of the objectives of the
Administration is'to make the Federal
wetlands programs fair, flexible, and
effective. Basing the single and
complete project on Internal Revenue
Service reporting of farms for the
proposed modification of NWP 40
results in unfair restrictions on
agricultural producers compared to
residential, commercial, and
institutional developers. Developers
often own more than one parcel of land
and may have several development
projects occurring at the same time. The
Corps considers each development a
single and complete project, as long as
each development has independent
utility. Each development can qualify
for separate NWP authorization even
though the land may be owned by the
same developer, if the proposed work
meets the terms and conditions of the
• NWP and if the individual or
cumulative adverse effects on the
aquatic environment are minimal. We
are proposing to base the single and
complete project and indexed acreage
limit of NWP 40 on farm tract size,
instead of farms. The use of farm tracts
for NWP 40 provides equitable
treatment to agricultural producers, and
each farm tract would be considered a
single and complete project for the
purposes of the NWPs.
Several commenters stated that the
proposed acreage limits are too high.
Suggested acreage limits were 1, Vb, l/4,
and lAo acre. A few commenters
suggested higher acreage limits. Several
commenters stated that the proposed 3
acre limit is adequate. In the July 1,
1998, Federal Register notice, we .
requested comments on the use of a
simple ac|eag|Jimityersusj;sU|iing
scale for this &WP. Most commenters
opposed, the use of a sliding scale or
indexing to determine the acreage limit
for this NWP. One of these commenters
stated that the indexing scheme
proposed in the July 1, 1998, Federal
Register notice is too burdensome,
confusing, and without ecological
justification. Two commenters favored
the use of a sliding scale, but •
recommended basing the sliding scale
on a percentage, either as 5% of the
wetlands on a farm regardless of farm
size or 2% of the project size, if the
project is greater than 5 acres in size.
A number of commenters stated that
the acreage limit for NWP 40 should be
die same as ."or die NWP for residential,
commercial,.and institutional
development activities (i.e.. NWP 39).
One of these commenters stated that the
acreage limits proposed in the July 1,
1998, Federal Register notice are
inequitable compared to die acreage
limits developers are subject to in NWP
39. particularly to farmers who own
smaller farms. This commenter also said
that using acreage limits and farm size
as a substitute to determine minimal
adverse effects has not been applied in
a consistent manner between similar
activities, such as development or
agricultural projects.
Based on our review of comments
received in response to the July 1, 1998,
Federal Register notice, and to provide
agricultural producers and residential,
commercial, and institutional
developers with equitable NWPs, we are
proposing to utilize a simple 2-acre
limit for discharges into non-tidal
wetlands and an indexed acreage limit
for discharges into playas, prairie
potholes, and vernal pools that are
authorized fay paragraphs (a) (for USDA
program participants) or (b) (for non-
participants in USDA programs) of NWP
40. The indexed acreage limit for playas,
prairie potholes, and vernal pools has a
maximum limit of 1 acre per farm tract.
A lower maximum acreage limit (i.e., 2
acres per farm tract) was selected to
ensure tfiat die NWP authorizes
activities only widi minimal adverse
effects on the aquatic environment
because preconstruction notification to
die District Engineer is not required for
activities authorized by paragraph (a) of
this NWP (unless die project proponent
is also requesting authorization for the
construction of foundations for farm
buildings or the relocation of greater
than 500 linear feet of drainage ditches
constructed in non-tidal streams). We
are proposing a 2-acre limit for
discharges into non-tidal wetlands
(except for playas, prairie potholes, and
vernal pools) to increase production.
For the proposed modification of NWP
40, the indexed acreage limit for
discharges into playas. prairie potholes.
and vernal pools is based upon 1%
percent of die farm tract size, with a
base limit of l/io acre. The maximum
acreage limit of 1 acre is achieved for
farm tracts 90 acres or greater in size.
We believe'that the formula for the
indexed acreage limit will be easy to
use. An indexed acreage limit helps
encourage avoidance and minimization
of losses of waters of the United States.
One commenter opposed the use of an
aggregate acreage limit for NWP 40.
stating diat die requirement for
mitigation replaces the need for an
acreage limit for activities audiorized by •
the NWP. A couple of commenters said'
that the Corps cannot enforce the
acreage limits of this NWP because land
is reapportioned among farm tracts on
an annual basis and the Corps does not
have access to the farm tract history
necessary to ensure compliance with the
acreage limits.
The acreage limit for NWP 40, as for
all other NWPs, is based on a national
determination diat die NWP will
authorize most activities that have
minimal adverse effects on the aquatic
environment, individually or
cumulatively. For certain activities,
preconstruction notification is required
to allow district engineers to review
these activities on a case-by-case basis
and determine if they will result in
minimal adverse effects on the aquatic
environment, individually or
cumulatively. Compensatory mitigation
cannot be used to increase the acreage .
limit for an NWP. but discharges of
dredged or fill material into waters of
the United States to construct
compensatory mitigation are not
included in the calculation of acreage
loss of waters of the United States to
determine if the single and complete
project exceeds the acreage limit of .
NWP 40. It is our understanding diat
farm tract designations change only
when the land is subject to a real estate
transaction, such as when a fanner
subdivides a farm tract to sell a part of
that farm tract to another person.
Paragraph (a) of the proposed NWP 40
modification published in the July 1,
1998, Federal Register notice
authorized activities diat qualify for a
minimal effects exemption under the
Food Security Act and National Food
Security Act Manual, provided the
discharge does not cause the loss of
greater than 1 acre of non-tidal wetlands
or greater than Vs acre of playas, prairie .
potholes, and vernal pools. One
commenter supported the inclusion of
minimal effects determinations in NWP
40. Two commenters opposed tr ,
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provision of the NWP. One commenter
stated thac the farm owner should not
have to obtain an authorization from
both the Corps and NRCS for work in
wetlands. This commenter believes that
the Corps should make the minimal
effects determination and that USDA
program participants should get an
NWP authorization before they can get
a minimal effects determination.
Another commenter requested diat the
minimal effects determination should
Include non-participants in USDA
programs. One commenter stated that it
is inappropriate for the Corps to apply
acreage limits under this part of the
NWP to activities that receive minimal
effects determinations. Another
commenter recommended that this
portion of the NWP should be removed
and replaced with regional conditions.
One commenter believes that NRCS
does not currently monitor the indirect
or cumulative adverse effects of projects
that are eligible for minimal effects
determinations, and that this is contrary
to die Clean Water Act's general permit
criteria. This commenter stated diat the
minimal effects determination does not
assess the value for a watershed. Three
commenters recommended that NRCS
should receive concurrence from the
FWS and/or NMFS prior to issuing a
minimal effects determination.
We are proposing to modify this NWP
to authorize discharges in non-tidal
wetlands, excluding non-tidal wetlands
adjacent to tidal waters, by USDA
program participants and non-
participants in USDA programs to
increase agricultural production on a
farm tract. For USDA program
participants, the permittee must obtain
an exemption or minimal effects with
mitigation determination from NRCS
and Implement an NRCS-approved
compensatory mitigation plan diat fully
offsets wetland losses. For non-
participants In USDA programs,
notification to the District Engineer is
required for discharges resulting in the
loss of greater than l/\ acre of non-tidal
wetlands to increase agricultural
production. The District Engineer will
determine on a case-by-case basis if die
activities authorized by paragraph (b)
will result in minimal adverse effects on
die aquatic environment Compensatory
mitigation will normally be required for
activities diat require notification to
ensure diat diey result in minimal
adverse effects on die aquatic
environment. The 2 acre limit for
discharges into non-tidal wedands and
the indexed acreage limit for discharges
into playas, prairie potholes, and vernal
pools will ensure that the NWP
authorizes onlv activities with minimal
adverse effects on the aquatic
environment. District engineers will
monitor die use of this NWP through
postconstruction reports and
preconstruction notifications submitted
to the District Engineer.jlf the activities
authorized by NWP 40 result in more
than minimal cumulative adverse effects
on the aquatic environment, division
engineers can suspend tine use of this
NWP in the watershed or Corps district.
Paragraph (b) of the proposed
modification of NWP 40 published in
the July 1. 1998, Federal Register
audiorized activities in ^on-tidal
wedands, except for naturally vegetated
playas, prairie podiolesi and vernal
pools for the purposes of increasing
agricultural production. Two
commenters recommended using a
simple acreage limit, bu't two other
commenters favored using a sliding
scale. Two commenters opposed the
proposed 3 acre limit, b »cause diey .
believe it is too high. One commenter
stated diat die proposed indexed
acreage limit was too low, especially if
mitigation is required. One commenter
recommended a 1 acre l^mit and anodier
commenter recommended a Vb acre
limit One commenter recommended
basing die acreage limit on a sliding
scale of 2% of the entire property, with
a maximum of 3 acres. One commenter
stated diat diis part of die NWP should
apply to all non-tidal wetlands, with no
exclusions for playas, prairie potholes,
and vernal pools.
We are proposing to modify NWP 40
to authorize agricultural activities in all
non-tidal wedands, excluding non-tidal
wetlands adjacent to tid^l waters. For
discharges into non-tidal wedands to
increase production, we are proposing a
simple acreage limit of 2 acres and an
indexed acreage limit fo'r discharges into
playas, prairie podiolesj and vernal
pools. The indexed acreage limit for
discharges into playas, prairie podioles,
and vernal pools will have a maximum
acreage limit of 1 acre. The acreage limit
for die proposed modification of this
NWP will be based on farm tracts.
Paragraph (c) of die proposed
modification of NWP 40 published in
die July 1, 1998, Federal Register
audiorized activities in naturally
vegetated playas, prairie podioles, and
vernal pools for die purposes of
increasing agricultural production. Two
commenters concurred with the
proposed acreage limit of 1 acre. One
commenter objected to the lower
acreage limit for activities in playas,
prairie potholes, and vernal pools. One
commenter stated diat diis portion of
the NWP should apply only to
frequently cropped playas, prairie
ootholes and vernal nnrttg anri fhat
naturally-vegetated wetlands should not
be included in the NWP. Anodier
commenter recommended including
pocosins in this paragraph of the NWP.
A commenter stated that the proposed 1
acre limit is too high. One commenter
believes diat a higher acreage limit
should be used because die permittee is .
required to provide mitigation. Two
commenters recommended using a
simple acreage limit instead of a sliding
scale acreage limit.
As previously discussed, we are
proposing to modify NWP.40 to include
playas, prairie potholes, and vernal
pools widi an indexed acreage limit.
• Construction of Farm Buildings:
Paragraph (d) of die proposed
modification of NWP 40 contained die "
original provisions of NWP 40 and
authorized discharges into wetlands,
excluding playas, prairie potholes, and
vernal pools, that were in agricultural
.production prior to December 23, 1985,
for the construction of building pads for
farm buildings, with an acreage limit of
1 acre.
One commenter recommended
increasing the acreage limit to 2 acres.
Another commenter recommended an
acreage limit of 1/4 acre, to be
consistent widi die acreage limit
proposed for NWP 29 in the July 1,
1998, Federal Register notice. One
commenter stated diat non-agricultural
buildings such as houses should not be
audiorized by diis NWP. Three
commenters stated diat die December
23, 1985, date should be removed from
diis part of die NWP, based on the
rationale that any area under
agricultural production prior to diat
date should not be considered a
jurisdictional wetland and subject to die
limitations of die NWP.
We are proposing to remove the .
exclusion for playas, prairie potholes,
and vernal pools from diis part of NWP
40; This provision is now in paragraph
(c) of die proposed modification of diis
NWP, with a requirement that the
permittee notify the District Engineer in
accordance widi General Condition 13.
We are proposing to maintain die 1 acre
limit for this activity. One acre is
adequate for the construction of most
farm buildings. This acreage limit need
not be consistent widi die acreage limit
of NWP 29, since farm buildings are
constructed for the operation of the
farm, not for residences. Farm buildings,
such as barns, usually must be larger
dian houses to fulfill dieir purposes: In
addition, this paragraph of NWP 40
encompasses a much smaller geographic
scope than die odier provisions of NWP
40, since it is limited to farmed
• wetlands. Paragraph (c) of NWP 40
|s Hfsrhargpg nnlv In farmpH
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39317
wetlands for the construction of
hui'lding pads for farm buildings,
whereas NWP 29 authorizes discharges
of dredged or fill material into all non-
tidal wetlands. This NWP does not
authorize the construction of non-
agricultural buildings, such as
residences. We do not agree that the
December 23, 1985, date should be
removed from the NWP because there
, are jurisdictional wetlands that have
been used for agricultural production
since that date. Although they are
considered farmed wetlands, they are
still waters of the United States and
subject to Clean Water Act Section 404
permit requirements.
Drainage Ditch Relocations:
Paragraph (e) of the proposed NWP 40
modification published in the July 1,
1998, Federal Register notice
authorized the relocation of existing
serviceable drainage ditches and
previously substantially manipulated
intermittent and small perennial
streams. Two commenters supported the
proposed provision of the NWP. Several
commenters opposed this provision.
Two commenters stated that the
relocation of streams or drainage ditches
may result in substantial adverse effects
. on the aquatic environment. One
commenter recommended modification
of this provision to limit the work only
to the relocation of currently serviceable
drainage ditches or manipulated streams
that are not so degraded as to require
reconstruction. Another commenter •
stated that it is unclear which other
waters of the United States are included
in this paragraph of the NWP. Two *
commenters suggested that this
condition should not apply to perennial
streams. Two .commenters requested
diat the Corps define the term
"substantially manipulated stream."
The purpose of this provision of the
proposed modification of NWP 40 is to
authorize relocation of drainage ditches
constructed in waters of the United
States to increase agricultural
production. Based on comments
received in response to our proposed
definition of die term "drainage ditch,"
and in an effort to clarify this provision
of NWP 40, we are changing the
language of diis paragraph and
designating it paragraph (d). Paragraph -
(d) of the proposed modification of
NWP 40 authorizes'discharges of
dredged or fill material to relocate
existing serviceable drainage ditches
constructed in non-tidal streams. The
relocation of existing serviceable
drainage ditches constructed in non-
tidal wetlands can be authorized by
paragraphs (a) or (b) of this NWP.
Notification to the District Engineer is
required for the relocation of greater
than 500 linear feet of drainage ditches
constructed i|5iri6n-tidalsi|fanfL Since
drainage ditches can be'cb'nstructed in
wetlands or by channelizing perennial,
intermittent, or ephemeral stream beds
to improve drainage, we have removed
the phrase"* * * and previously
substantially manipulated intermittent
and perennial streams" and replaced it
with"* * * constructed in non-tidal
streams" to reflect the fact that drainage
ditches may have been constructed in
streams. As a result of diis change, it is
unnecessary to provide a definition for
the term "substantially manipulated
stream." Relocation of drainage ditches
constructed in uplands does not require
a Section 404 permit becausesdiese
ditches are not waters of die 'tJnited
States, except-in certain circumstances.
We do not believe that the relocation
of existing serviceable drainage ditches
constructed in waters of the United
States will result in more than minimal
adverse effects on the aquatic
environment. The term "existing
serviceable drainage ditches"
adequately describes the limitation of
paragraph (d) to only those drainage
ditches that do not require
reconstruction due to abandonment and
neglect.
One commenter asked why this
provision was included in the NWP,
since ditch maintenance is exempt
under Section 404(f) of the Clean Water
Act. One commenter stated that other
NWPs should be used to authorize work
in rivers and streams on agricultural
lands. One commenter said that a
provision should be added to tiiis
paragraph requiring the land to remain
in agricultural use if the ditches are
maintained. Another commenter
recommended adding a 500 linear foot
limit to this part of the NWP.
The Section 404(f) exemption for
drainage ditch maintenance does not
apply to die relocation of drainage
ditches. To qualify for the exemption, "
the landowner cannot change the
location of the drainage ditch or modify
it beyond the original design
dimensions and configuration. Since the
relocation of drainage ditches
constructed in non-tidal streams can
increase agricultural production, it
would be inappropriate to require the-
use of other NWPs to authorize this
activity. Other activities in waters of the
United States on agricultural lands,
such as bank stabilization, may be
authorized by other NWPs, regional
general permits, or individual permits.
We cannot add a provision to paragraph
(d) requiring the landowner to keep the
land in agricultural use if the ditches are
relocated because such a provision is
beyond the Corps regulatory authority
and unenforceable. We do not believe
that is necessary to impose a 500 linear
foot limit on relocating drainage ditches
constructed in waters of the United
States because district engineers will
receive a PCN for the relocation of
greater than 500 linear feet of drainage *
ditches constructed in non-tidal streams
to determine if the proposed work will
result in minimal adverse effects on the
aquatic environment and can qualify for
authorization under this NWP.
Notification: We proposed requiring
notification for activities that cause die
loss of greater than lh acre of non-tidal
wetlands or the relocation of greater
than 500 linear feet of drainage ditches
and previously substantial!y
' manipulated intermittent and small
perennial streams. One commenter
• recommended a 1 acre PCN threshold.
Another commenter recommended a V\
acre PCN direshojd, with agency
coordination. One commenter requested
that PCNs should be required for all
activities authorized by this NWP.
Another commenter stated that the PCN
requirements for NWP 40 should be the
same as for NWP 39. For ditch and
stream relocations, recommended PCN
thresholds included 150, 200, and 3,000
linear feet. One commenter requested
agency coordination for all wetland
losses of greater dian lh acre and all
ditch and stream relocations.
Notification to die District Engineer is
required for discharges by non-
participants in USDA programs to
increase agricultural production that
result in the loss of greater than-'A acre
of non-tidal wetlands, the construction
of building pads for farm buildings, and
for the relocation of greater dian.500
linear feet of drainage ditches
constructed in non-tidal streams. For
USDA program participants, notification
to the District Engineer is required if the
proposed work involves activities in
non-tidal wetlands and the relocation of
greater than 500 linear feet of drainage
ditches constructed in non-tidal, streams
or die construction'of building pads for
farm buildings, agency coordination
will be conducted for activities
requiring notification to die District
Engineer if the proposed work results in
the loss of greater than 1 acre of waters
of the United States.
Mitigation: Paragraphs (b) arid (c) of
the proposed modification of NWP 40
published in the July 1. 1998, Federal
Register notice required submission of a
mitigation plan to fully offset.wedand
losses. One commenter stated diat the
Corps should not require avoidance and
•minimization for potential losses of
frequently cropped, previously altered
farmed wetlands, because mitigation.
sequencing is not required under the
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Farm Bill. In orher words, the 404(b)(l)
guidelines are noc applicable to farmed
wetland conversions and compensatory
mlcigacion will be required by NRCS. A
few commenters recommended that
both the Corps and NRCS approve the
required compensatory mitigation. Two
commenters seated that the required
compensatory mitigation should be
reviewed by all agencies, noc just NRCS.
One commenter requested that any
compensatory mitigation requirements
for this NVVP be the same as for all
Corps permits.
Although mitigation sequencing may
not be required under the 1996 Farm
Bill, discharges of dredged or fill
material into waters of the United
States. Including farmed wetlands.
require a Section 404 permit, which
may be authorized by NWPs. General
Condition 19 of the NWPs requires the
permittee to avoid and minimize
impacts to waters of the United States
on-site to the maximum extent
practicable. Compensatory mitigation is
required for all activities authorized by
paragraph (a) of this NWP. For activities
requiring notification to the District
Engineer, compensatory mitigation may
be required to ensure that activities
authorized by this NWP result in
minimal adverse effects on the aquatic
environment. For the purposes of this
NWP; compensatory mitigation used to
satisfy the requirements of NRCS will be
accepted by the Corps. To provide
consistency for compensatory mitigation
requirements and reduce confusion,
NRCS and the Corps will develop, in
cooperation with EPA, FWS and NMFS,
joint mitigation guidance for this NWP.
One commenter expressed concern
that compensatory mitigation
requirements will decrease the available
amount of farm land and requested that
the Corps annually report the amount of
farm land used as compensatory
mitigation. Two commenters supported
the requirement to fully offset losses of
waters, but stated that the NWP should
require a minimum 1:1 replacement
ratio. Another commenter said that
compensatory mitigation should be
limited to the enhancement, restoration,
and creation of aquatic resources and
exclude preservation, because the Farm
Bill does not authorize preservation and
NRCS policy does not allow
preservation for Swampbuster purposes.
We,do not believe that the
compensatory mitigation requirements
of this NWP will substantially decrease
the amount of available farm land
because landowners have the option of
avoiding impacts to waters of the United
States, which would decrease the
amount of land needed for wetland
restoration and creation. la-addition.
compensatory mitigation is often
conducted on farm land with marginal
productivity, due to soil characteristics
or wetness, that has the highest
potential for wetland [restoration. We
disagree that preservation should be
prohibited as a means of providing
compensatory mitigation for activities
that require notification to the Corps.
Preservation is an extremely important
method for protecting rare and high
value waters of the United States from
future losses. ]
Use of NWP 40 with Other NWPs: One
commenter stated that the portion of the
preamble to the proposed modification
of NVVP 40 published!in the July 1, -'
1998, Federal Register that prohibits the
-future use of NWP A (i.e., NWP 39) if '
the farm is developed! by the farmer or
sold, should be included in the text of
NWP 40. However, this commenter
questions the Corps ability to monitor
compliance with this provision.
Another commenter suggested that NWP
40 should not be used with NWPs 39 or
44. One commenter recommended a 3
acre stacking limit. Another commenter
suggested that any use of this NWP with
other NWPs should be subject to the '
lowest acreage limit allowed for any of
the NWPs.
We have incorporated into NWPs 39
and 40 the provision addressing the
future use of NWP 39 on the farm if that
farm or portions of the farm are
converted to residential, commercial, or
institutional developments by the
farmer or sold to a developer. The
indexed acreage limit Of paragraph-(a) of
NWP 39 cannot be exceeded, based on
the project area and th^ subdivision
provision of NWP 39. The Corps will-
rely on its records to track the use of
NWPs 39 and 40 for a particular parcel
of land. The use of more than one NWP
for a single and complete project is
addressed in the proposed modification
of General Condition l\5~.
Other Comments: A number of
commenters objected to allowing the
use of NWP 40 on a farm every 5 years,
because it would result in substantial
cumulative losses of waters. One
commeriter recommended that the NWP
should be used only once per project
and if the land is no longer used for
agricultural production the fill should
be removed and die new use
repermitted. Several commenters
believe that NWP 40 should be subject
to the same conditions as the NWP for
residential, commercial, and
institutional development activities and
die NWP for mining activities. One
commenter recommended including a
reference to the Memorandum of
Agreement between the Corps and
NRCS concerning wetland delineations.
One commenter objected to this NWP
stating that it does not address indirect
impacts to waters caused by converting
..wetlands to agricultural use and cited
water quality problems diat can be
caused by ditching activities. Another
commenter recommended that the NWP
include a requirement for vegetated
buffers around streams on farm land, to
filter out pollutants and nutrients and
prevent erosion. -. -
We have removed the provision
allowing the use of NWP 40 on a farm
every five years, to make it more
consistent with other NWPs. Restricting
the use of NWP 40 to a single and
complete farm operation will avoid
. substantial losses that could occur due
to repeated use of this NWP every 5
years. We disagree with the
recommendation that land no longer in
agricultural use should be restored and
any new uses repermitted. Such a
requirement is impractical, places
unnecessary burdens on the regulated
public and the Corps, and provides no
benefits to the aquatic environment.
Former wetlands on agricultural lands
may be used for aquatic habitat
restoration, Including mitigation banks
and in lieu fee programs."
We have attempted to provide
consistency between proposed NWPs
39, 40, and 44, but due to the
differences in the types of activities
authorized by these NWPs and their
potential adverse effects on the aquatic
environment, it is impractical to make
the conditions for these NWPs identical.
We do not believe that it is necessary to
cite the Memorandum of Agreement
between the Corps and NRCS
concerning wetland delineations in this
NWP, partly because it is currently
undergoing revisions and it is not
essential to the implementation of NWP
40. In accordance with the proposed
modification of General Condition 9,
district engineers can require a water
quality management plan for activities
authorized by this NWP, if die 401
certification does not require such a
plan or address potential adverse effects
to water quality. Both the water quality
management plan and General
Condition 19 allow die District Engineer
to require, as compensatory mitigation,
the establishment and maintenance of
vegetated buffers adjacent to streams.
This NWP is subject to proposed
General Conditions 25, 26, and 27,
which will reduce its applicability.
General Condition 25 prohibits the use
of this NWP to authorize discharges into
designated critical resource waters and
wedands adjacent to those waters.
General Condition 26 prohibits die use
of this NWP to authorize discharges ,
resulting in the loss of greater dian 1
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39319
acre of impaired waters, including
idjacont wetlands. NWP-40 activities
resulting in the loss of 1 acre or less of
impaired waters, including adjacent
wetlands, are prohibited unless
prospective permittee demonstrates that
rhe activity will not result in further
impairment of the waterbody. General
Condition 27 prohibits the use of NWP
40 to authorize permanent, above-grade
fills in waters of the United States
within the 100-year floodplain.
In response to a PCN, district
engineers can require special conditions
on a case-by-case basis to ensure that
the adverse effects on the aquatic
environment are minimal or exercise
discretionary authority to require an
individual permit for the work. To allow
NRCS to implement paragraph (a) of this
NWP consistently throughout the
country, division engineers cannot add
regional conditions to paragraph (a) of
NWP .40. However, division engineers.
can add regional conditions to
paragraphs (b), (c), and (d) of NWP 40,
since'the Corps is responsible for
reviewing these activities.
41. Reshaping Existing Drainage Ditches
In the July 1, 1998, Federal Register
notice, we proposed a new NWP
(designated as NWP F) to authorize
.discharges of dredged or fill material
into non-Section 10 waters of the United
States for reshaping existing drainage
ditches constructed in waters of the
United States by altering the cross- •
section of the ditch to benefit die
• aquatic environment.
Comments both in support and in
opposition of this NWP were received,
but most commenters recommended
conditions to minimize potential
impacts. Those in support of the NWP •
believe that it would be acceptable with
regional conditions or Section 401 water
quality certification conditions and that
•it will provide oversight or enforcement
in order to reduce abuse in rural areas.
Comments opposing the NWP ranged
from no permit should be required at
all, as this is an activity which is
exempt from Section 404 regulation, to
all activities in all ditch types should be
prohibited in order to prevent .
degradation of aquatic resources: One
commenter stated that Corps regulation
of wet weather conveyances would be a
huge paperwork burden contributing
little to environmental quality. Several
commenters stated that it is not always
in the overall best interest of the aquatic
resource to attempt to achieve
improvements in water quality by
simply reshaping the banks of the
drainage ditch. Many commenters who
expressed opposition to the proposed
new and modified NWPs in general
stated that .this.N'WP was.an exception
because it^oufiB.meet the!fltnifftal
effect requirement..; ;
Many comments regarding
jurisdiction were received. One
commenter requested a discussion on
jurisdiction as some Corps personnel
take jurisdiction over upland ditches
based on wetland parameters. Some
commenters requested the Corps further
clarify the distinction between
maintenance work and work that would
be audiorized by this permit. Some
commenters recommending modifying
the text of the NWP to exclude ditch
maintenance projects while odiers
recommended die new NWP include all
.ditches diat are man-made, regardless of
whether or not maintenance has been
performed. One commenter suggested
that permits should never be required
for minor drainage activities on
agricultural land and for die
maintenance of drainage ditches.
Several commenters stated that roadside
ditches are not waters of the United
States even if they contain wetland
vegetation. Many believe this permit
audiorizes work diat is actually exempt
from regulation. Other commenters
proposed that the NWP should be
applicable in Section 1.0, including tidal
waters, as well. One commenter
suggested that all natural perennial
streams, channelized perennial streams,
and/or rechannelized perennial streams
should be excluded from diis permit.
Some commenters said diat the permit
should audiorize die reconversion of
abandoned ditches, while others stated
diat die Corps should stress diat
abandoned ditches may not be
reconverted. Several commenters stated
diat this permit should provide
audiorization for reshaping obstructed
channels. One .commenter said that die
permit should be rewritten to clarify
diat open drainage ditches, including
channelized streams, cannot be
considered abandoned as long as die
maintenance authority exists and as
long as all cropland draining to the
ditch has not been abandoned. Anodier
stated that this permit should not be
used for streams that are called
"ditches" or in channelized portions of
streams that convey surface runoff and/
orgroundwater.
Several commenters believe the NWP
should be more inclusive and should
allow some realignment of die waterway
if it is beneficial to die aquatic
environment. One group recommended
diat ditch relocation should be allowed
because when shopping centers are
renovated or expanded, because the
relocation of ditches is often the only
activity regulated by the Corps. Several
commenters recommended the permit
should allow for a change in center!ine
location when the activity pertains ro
roadside ditches where transportation
agencies are flattening the side slopes
for safety purposes. Additionally, minor '
relocation of die ditch could have as
much or more of a benefit on improving
water quality and should be allowed
under this permit. Some commenters.
requested that deepening of ditches
should be included because some
ditches were originally dug widiout
enough grade to keep them from
accumulating excess sediment. Odier
commenters stated that deepening of
drainage ditches should not be allowed
beyond the original configurations due
to die resultant additional wedand
drainage. One commenter suggested that
diis permit should not be used to
audiorize diversion or drainage of
wedands or the expansion of-the
drainage ditch size. And lastly, one
commenter recommended diat this
permit be broadened to include all
reshaping that might not be exempt as
maintenance.
Discharges associated widi die
maintenance of drainage ditches
constructed in waters of die United
States are exempt from reguladon under
Section 404, provided the drainage
ditch is returned to its original
dimension's and configuration (see 33
CFR Part 323.4(a)(3)). However, the
modification or new construction of
drainage ditches in waters of the United
States requires a Section 404 permit.
Since the maintenance of drainage
ditches to dieir original dimensions and
configurations is exempt from Section
404 permit requirements, die purpose of
die proposed NWP is to encourage
reshaping of ditches'in a manner diat
provides benefits to the aquatic
environment. This NWP is limited to
reshaping currently serviceable drainage
ditches constructed in non-tidal waters
of die United States, excluding non-tidal
wetlands adjacent to tidal waters,
provided the activity does not change
die capacity or location of the drainage
ditch. We have changed die applicable
waters for diis NWP to make it more
consistent with most of the proposed
NWPs. The centerline of the reshaped
drainage ditch must be in essentially die
same location as the centerline of the
existing ditch. The proposed NWP does
•not audiorize reconstruction of drainage
ditches diat have become ineffective
dirough abandonment or lack of regular
maintenance. This NWP authorizes
discharges to grade the banks of ditches
at a gender slope than they were
originally constructed for the purpose of
reducing erosion and decreasing
sediment transport down the difh by
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trapping sediments. Shallower slopes
may increase the amount of vegetation
Along the bank of che ditch, which can
decrease erosion, increase nutrient and
pollutant uptake by plants, and increase
the amount of habitat for wildlife. We
believe that the deepening and/or
widening of a ditch, allowing the
centerline to be relocated, and allowing
abandoned ditches to be reconverted
could result in more than minimal
adverse effects on the aquatic
environment.
Several commenters suggested this
permit should be removed from
consideration until questions
concerning the Tulloch Rule are
resolved, because a landowner does not
know If he or she is required to obtain
a permit for excavation activities or
reshaping existing ditches in wetlands
that Involve only "Incidental fallback."
The intent of this NWP Is to authorize
a certain activity that does not qualify
for the maintenance exemption and is
not for the purpose of increasing
drainage capacity. We believe that this
NWP should not be made more
inclusive. The intent of this NWP is to
authorize those ditch reshaping
activities that involve more than
"Incidental fallback."
The proposed NWP may not be used
to relocate drainage ditches or to modify
drainage ditches to increase the area
drained by die ditch (e.g.. by widening
or deepening the ditch beyond its
original design dimensions or
configuration) or to construct new
drainage ditches if the previous
drainage ditches have been neglected
long enough to require reconstruction.
This NWP does not authorize the
channelization or relocation of streams
to improve capacity of die streams to
convey water. An individual permit,
another NWP, or a regional general
permit may authorize the construction
of new drainage ditches or the
reconstruction of drainage ditches. The
proposed NWP does not authorize the
maintenance or reshaping of drainage
ditches constructed in navigable waters
of the United States (non-tidal wetlands
that are adjacent to tidal waters are also
excluded). A Section 10 permit is
required for the maintenance or
modification of drainage ditches
constructed In navigable waters of the
United States. We believe dial
modifying this permit to audiorize work
In Section 10 waters could result in die
authorization of activities that have
more than minimal adverse effects on
the aquatic environment
One commenter recommended that
NWP 27 should be expanded to include
this activity while another suggested
Id be audiorized under NWP
3.. We do no't agree that j:his activity is
similar enough to the'activities • -*'
audiorized by NWP 27 (o warrant its
inclusion in NWP 27. The purpose of
NWP 27 is to restore, enhance, and
create wetland and riparian areas and
restore and enhance non-tidal streams
and open waters. The purpose of
proposed NWP 41 is to improve water
quality. NWP 3 does not: currently
audiorize reshaping of drainage ditches
constructed in waters of the United
States because diis activity is not
maintenance or repair. NWP 3
authorizes only maintenance activities
with minor deviations from die
previously audiorized configuration;
reshaping drainage ditches typically
involves more dian minor deviations in
ditch cross sectional shape.
Many commenters believe that diis
NWP will result in die clestruction of
riparian habitat, specifically adjacent
plant communities, and; degrade water
quality through die sidecasting of
excavated material into [wetlands. One
commenter stated that the permit would
prevent the natural process diat
increases wedand acreage through
natural deposition of detritus and
sediment in natural cycies that create
wetlands. Other commenters believe
that, diis NWP would cause die
degradation of salmon and other
fisheries habitat through the removal of
woody debris and that this permit
would audiorize activities that reduce
the geomorphic "complexity" ofa '
stream causing it to become more
uniform and adversely affect some
fisheries. One commenter said diat
activities authorized by! this NWP will
have a detrimental effect on water
quality due to a decrease in die velocity
of die stream and it is possible that die
stability of die stream could be
compromised due to an unbalanced
widdi/depdi ratio. Several commenters
stated diat die permit wjould result in
more rapidly draining farm files in die
Midwest, which would increase
scouring of banks and vyaterways and
degrade water quality. One commenter
said diat die permit should be modified
to state diat channel reshaping cannot
change die discharge rate or volume-of
the ditch. |
To address concerns for vegetation
adjacent to drainage ditches that may be
removed as a result of the audiorized
activity, we have added a second
notification requirement to die proposed
NWP. The prospective permittee must
notify the District Engineer if more than
500 linear feet of drainage ditch is to be
reshaped. District engineers can review
die proposed work and determine if the
clearing of adjacent vegetation will
result in more dian minimal adverse
effects on die aquatic environment. We
do not agree that the activities
audiorized by diis NWP will disrupt the
natural creation of wetlands or result in
substantial degradation of aquatic
habitat in streams. It is important to
note that drainage ditch maintenance is
exempt under Section 404(0- If a stream
was channelized to improve drainage,
the maintenance of the drainage ditch
constructed in die stream is an exempt
activity. The purpose of this NWP is to
encourage landowners to maintain die
drainage ditches constructed in waters
of die United States in a manner that
benefits the aquatic environment in
most cases. Reshaping the drainage
ditch with flatter side slopes will
improve water quality and decrease die
velocity of water flowing through die
ditch. This NWP does not authorize
modifications to die configuration of die
drainage ditch to increase die area
drained by die ditch. We believe that
die proposed NWP adequately states
this requirement. For diose activities
diat require notification, district
engineers can impose special conditions
on the NWP authorization to ensure diat
die work results in minimal adverse
effects or exercise discretionary
authority and require an individual
permit.
Some commenters noted that over
time, dirough natural processes, the side
slopes of ditches often become flatter
than they wee originally. In those cases,
diey say, it would not make sense to
require a permit to maintain existing
slopes, even if diey are not the original
slopes. This NWP does not require the
landowner to maintain existing slopes,
if diey .have eroded naturally.
Many commenters stated diat diis
NWP contains vague language and diat
many terms require clear definition in
the context of diis permit, especially
"maintenance," "modification,"
"reconstruction," "regular
maintenance," "abandonment," and
"loss of serviceability." One commenter
stated die phrase "reshaping to benefit
die aquatic environment" means
significandy different things in different
parts of die country.
We do not agree that definitions of die
terms "maintenance," "modification,"
"reconstruction," and "regular
maintenance," need to be provided widi
the proposed NWP. For die purposes of
diis NWP, die definitions of these terms
are die same as the definitions in
common usage today. District engineers
will determine which ditch reshaping
activities constitute maintenance and
which activities constitute
reconstruction. District engineers will
determine when a particular drainage
ditch is considered abandoned. Loss of
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39321
.serviceability is considered to be the
point at which a ditch no longer
functions as a drainage ditch, and
reconstruction is needed.
Several commenters asked how the
original ditch conditions would be
determined and how the Corps would
distinguish between "reconstruction"
and "maintenance to-original
dimensions." Some asked on what basis
it would be determined that the
proposed project would improve water
quality and how the area of wetland
drained by the original ditch would'be .
determined. Also, some commenters
questioned how one would determine
that the proposed channel shape would
not change discharge rate or volume.
These commenters also asked who
would be responsible for making these
determinations.
District engineers will determine
- which activities constitute maintenance,
reshaping, or reconstruction. They will
use any available information to make
these determinations/iHcluding field
evidence. In general, changing the
configuration of the drainage ditch to
slow water flow and increase vegetation
in the ditch will help improve water
quality because the plants and microbes
in the ditch will have more contact with
the water and remove more nutrients
and other compounds from the water.
Slower water How rates will also
decrease the sediment load of the water.
The area drained by the ditch can.be
' determined by using available models,
which consider factors such as soil type,
ditch depth, ditch width, etc. The
permittee may be required by the
District Engineer to demonstrate that the
proposed ditch reshaping activity will
not increase the area drained by the
ditch.
Another subject that generated many
comments is the definition of a drainage
ditch. One commenter stated that while
some drainage ditches were clearly
excavated, either though uplands or
wetlands, for the purpose of creating a
drainage channel where-one did not
exist previously, in many other cases,
natural streams or drainageways were
excavated to increase drainage capacity.
In many instances, this took place
decades ago and the waterway has been
considered a "ditch" by adjacent
landowners .since that time. Some
commenters believe that channelized
streams should not be considered
ditches and that this NWP should apply
only to ditches constructed in uplands
and wetlands. Others, however, noted
that in some parts of the country, most
functioning ditches were once natural
waterways.
Understanding the differences in .
definitions of a ditch across the county.
we have included a definition of the
term "draina.gfe; ditch" in fi|.e-: 'J--
"Definitions'" section of tfie NVVPs. This
definition recognizes that drainage
ditches may be constructed in uplands
or waters of the United States, including
wetlands and streams. A stream which
has been channelized to improve
surface drainage is considered a
drainage ditch, for the purposes of the
NWP program. District engineers will
use judgement to determine whether a
.stream is a drainage ditch and eligible
for the Section 404(f) exemption.
Some commenters stated that, to meet
minimal adverse effect criteria, this
NWP should have acreage and/or stream
length limits. The recommended acreage
limits ranged from Vio to 1 acre. Stream
length limits ranged from zero to one
mile. There were recommendations for
compensatory mitigation requirements,
such as requiring compensatory
mitigation for impacts greater than 1
acre. Some commenters suggested PCN
thresholds. Some commenters cautioned
that when a.PCN is not required,
conditions are often ignored and that a
PCN should always be required for work
in drainage ditches. Other commenters
stated that the NWP should not
authorize discharges of excavated
material into waters of the United
States. One commenter believes the
NWP should be conditioned to allow its
use only once per watershed and should
not be used in any area identified aS
having water quality problems or in any
outstanding resource waters. At least
one commenter stated that public
review should be required for all work
on public storm drain systems because
they directly affect the public and are
paid for with public funds.
We have determined that no acreage
limit is necessary for the proposed
NWP, because the authorized work is
intended to benefit the aquatic
environment, by changing the shape of
the drainage ditch to improve water
quality and other aspects of the aquatic
environment. Notification will be
required when excavated material is
sidecast into waters of die United States
or greater than 500 linear feet of
drainage ditch is reshaped. The latter
PCN requirement was added to address
concerns for adverse effects to riparian
areas adjacent to ditches constructed in
waters of the United States. District
engineers will review the PCNs to
determine if the proposed work will
result in minimal adverse effects on the
aquatic environment. Prohibiting the
sidecasting of excavated material into
waters of the United States would
discourage ditch reshaping activities
because the Section 404(f) exemption
for ditch maintenance allows
sidecasting. Such a prohibition would
cause many landowners to maintain the
ditch at its originally designed
configuration to qualify for the
exemption. Since the purpose of the
proposed NWP is to encourage ditch
maintenance activities that improve the
aquatic environment, it would be
counterproductive to limit its use to
only once per watershed or require
public review.
Some commenters recommended that
compensatory mitigation be required for
all activities authorized by this NWP.
Other commenters asked for.
clarification diat compensatory
mitigation is not required. One
• commenter believes that the applicants
should be required to provide
documentation regarding the scope and
effect of the existing drainage ditch
before and after the reshaping activity.
Anodier commenter stated that the
applicant should be required to obtain
a minimal effect determination and
certification from NRCS stating that best
management practices have been.
employed. One commenter suggested
that the Corps should require the
sub'mittal and review of an erosion and
sediment control plan prior to
authorizing use of this NWP because
these conditions are generally ignored'
when placed on the permit itself.
Another commenter suggested that'a
minimum riparian buffer should be
established or maintained as part of the
authorization. Several commenters
believe that revegetation of ditch banks
with tree or shrub species should be
required after construction to minimize
loss of riparian habitat and reduce die
potential for increasing water
temperatures widiin the ditch. Another
commenter recommended: (1)
Conditioning die NWP to prohibit
alteration or replacement of one type of
stream substrate with another type: (2)
the NWP should not authorize more
than minimal adverse effects to riparian
corridors during construction activities;
(3) die NWP should require die
replacement of riparian corridors when
diey are destroyed during construction;
and (4) die NWP should not audiorize
the sidecasting of material in such a
manner that the material would block or
impede overland surface flows into any
jurisdiction water of die United States,
including wedands.
We have determined that
compensatory mitigation will normally
not be required for die work audiorized
by diis NWP because die purpose of die
proposed NWP is to authorize ditch
reshaping activities that improve water
quality and aquatic habitat. If the project
proponent did die work to qualify for
die Section 404(f) exemption,
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compensatory mitigation would not be
required since the activity is exempt.
Requiring compensatory mitigation for
modifying the cross-sectional •
configuration of the ditch may
encourage maintenance to the original
dimensions and configuration and
discourage reshaping the ditch to
•benefit the aquatic environment. We do
not agree that permittees should be
required to provide a statement
discussing the effects of ditch reshaping
or that they should be required to obtain
a certification from NRCS. Compliance ,
with any required sediment and erosion
control plan is the responsibility of the
permittee. Permittees are encouraged to
maintain a vegetated buffer along one
side of the ditch, but regular
maintenance activities will prevent the
development of a woody vegetated
buffer along the side of the ditch used
by equipment to perform the excavation.
Several commenters presented a
variety of potential problems and
concerns about this NWP. Some
commenters believe that this permit will
be very difficult to implement and will
require substantial coordination with
the Corps that previously was not
required and will delay implementation
of projects. Many commenters requested
assurance that it would be used strictly
and successfully for water quality
improvement. They believe the existing
drainage ditch exemption is often
abused, resulting in the reditching of
long-abandoned ditches, the excavation
of natural streams, and the expansion of
ditches beyond their original
dimensions. They envision abuse of this
NWP by applicants stating a water
quality improvement purpose, but really
intending to remove woody vegetation
from the stream hank or increase
channel capacity to drain a new area.
This group of commenters was
concerned that adverse effects on the
aquatic environment resulting from
activities authorized by this NWP would
be more than minimal and could result
in loss of Important riparian habitat
bordering naturalized drainage ditches.
They were also concerned about filling
and permanent loss of wetlands as a
result of sldecasting. Several of these
commenters pointed out that many of
the conditions of this NWP are very
difficult to measure, such as
determining if the drainage area has
been increased and determining the
changes in ditch configuration without
altering capacity. They caution that
some channel-reshaping projects might
not be beneficial or would involve a
complex trade-off between various
commencer said the permit should have
language which encou'rages retaining
the structure and functions of the
wetland and stream habitats. •
In response to the comments in the
previous paragraph. wj= must reiterate
that the proposed NWP is intended to
encourage ditch maintenance activities
chat benefit the aquatic environment.
This NWP authorizes activities that are
exempt from Section 4b4 permit
requirements if those activities were
done strictly as maintenance to the
original ditch design configuration.
Although the ditch may be a
channelized stream, excavation
activities to maintain the drainage ditch
do not require a Section 404 permit. We
believe that a drainage ditch can be
reconfigured to provide water quality
benefits without increasing the area
drained by the ditch. The removal of
riparian vegetation from uplands
adjacent to a channelized stream is not
regulated by the Corps.junder Section
404. Sidecasting of excavated material .
into waters of the United States is
exempt from Section 404 permit
requirements if the activity is associated
with ditch maintenance. We believe that
conditioning this NWPJ to prohibit the
sidecasting of excavated material into
waters of the United States would
severely limit the use ojf this NWP and
encourage exempt maintenance
activities. Likewise, conditioning this
NWP to require the permittee to
maintain the wetlands and stream
habitat in the project area would
encourage exempt maintenance
activities that have more adverse effects
on the aquatic environment,
This NWP is subject to proposed
General Condition 26, which will
reduce its applicability! General
Condition 26 prohibits file use of this
NWP to authorize discharges resulting
in the loss of greater than 1 acre of
impaired waters, including adjacent
wetlands. NWP 41 activities resulting in
the loss of 1 acre or less of impaired
waters, Including adjacent wetlands, are
prohibited unless prospective permittee
demonstrates to the District Engineer
that the activity will not result in further
impairment of the waterbody. '
Notification to the District Engineer is
required for all activities authorized by
this NWP in impaired \vaters and
wetlands adjacent to those impaired
waters. i
Division engineers cah regionally
condition this NWP to exclude certain
waterbodles or require notification
when waters or unique {areas that
provide significant social or ecological
functions and values may be adversely
minimal adverse effects on the aquatic
environment, since it is limited to
existing drainage ditches and activities
that improve water quality. District
engineers can exercise discretionary
authority when very sensitive or unique
areas, such as salmonid habitat
mentioned by several commenters, may
be adversely affected by these activities.
The PCN requirement allows Corps
districts, on a case-by-case basts, to add
appropriate special conditions to ensure
that the adverse effects are minimal. The
District Engineer can also assert
discretionary authority to require an
individual permit for any activity that
; may have more than minimal adverse
effects. Proposed NWP F is designated
as NWP 41. with the proposed
modifications discussed above.
42. Recreational Facilities
In the July 1, 1998. Federal Register
notice, we proposed an NWP to
authorize discharges of dredged or fill
material into non-tidal waters; of the
United States, excluding non-tidal
wetlands contiguous to tidal waters, for
the construction or expansion of passive
recreational facilities.
Several commenters 'were concerned
about the title of this NWP. Some
commenters expressed confusion at the
definition of passive recreational
facilities. Other commenters were
interested in exactly what activities .
were authorized. One commenter
suggested that the Corps clarify what is
meant by the term "open space" and
when a recreational facility is
considered to have a substantial amount
of buildings and other impervious
surfaces. Several commenters suggested
defining the wording "substantially"
when considering the amount of grading
necessary for a particular activity.
To help reduce confusion, we have
eliminated the word "passive" from this
NWP and changed the title of the
proposed NWP to "Recreational
Facilities." The definition of the term
"recreational facilities," as used for this
NWP, and the types of activities
authorized by this NWP have not been
'modified. For the purposes of this NWP,
'^recreational facilities are defined as low-
impact recreational facilities that are
constructed so that they do not
substantially change preconstmctlon
grades or deviate from natural landscape
contours. Low-impact recreational
facilities include, but are not limited to,
bike paths, hiking trails, campgrounds,
and running paths. The construction of
golf courses or the expansion of golf
courses and ski areas, can be authorized
by this NWP, provided these facilities
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39323
amounts of grading or filling, and
adverse effects to wetlands and riparian
nroas arc minimized to the extent'
practicable.
The term "open space" refers to areas
not disturbed by the construction or
expansion of'the recreational facility,
such as forests, fields, riparian areas.
ecc. Open spaces do not contain any
buildings. District engineers will
determine when a proposed activity
involves a substantial amount of
buildings, concrete, asphalt, or other
impervious surfaces. The land area for
the recreational facility authorized by
the proposed NWP should consist'orily
of a small proportion of impervious
surface. District engineers will also
determine when the amount of grading
is substantial.
• One commenter stated that facilities
for walking, biking, and running require
substantial filling and grading if they are.
located in hydric soils. One commenter
suggested that gravel paths are pervious
and should qualify for authorization
under this NWP. A couple of
commenters suggested that roads are not
pervious features and should be
excluded from authorization by this
permit. Several commenters
recommended expanding this permit to
include other activities that are
beneficial to the community, such as
playgrounds, pools, and ball fields,
suggesting that these activities are no
more harmful to the environment than
ski areas or golf courses. Many
commenters objected to the inclusion of
golf courses, campgrounds, and ski
areas in this NWP, stating that these
activities are not consistent with the
concept of passive recreational facilities
and do not have low impacts on aquatic
resources.
Walking, running, and biking trails do
not necessarily require substantial
grading or filling of hydric soils. These
trails can be constructed by placing a
layer of gravel or crushed stone on the -
trail or placing a thin layer of asphalt on
the soil surface. In some situations, a
footer may be excavated to construct a
•base for the gravel or asphalt trail.
District engineers will determine when
the construction of a trail involves
substantial grading or filling. Timber
decks and walkways should be used
where possible to minimize losses of
waters of the United States. Gravel paths
and roads are considered pervious. The
proposed NWP can authorize the
construction of roads to provide access
to the recreational facility, including
support buildings. However, the roads
must be constructed at grade with
pervious materials. Other types of roads
to provide access to the recreational
facility can be authorized by other
NWPs, such as NWP 14,"as,long as the
permittee^corgjal ies. with' (|JnerSl
Condition 15vThe construction of
substantial amounts of roads within the
recreational facility is not authorized, •
since this NWP does not authorize
recreational facilities for use by motor
vehicles.
Pools, playing fields, and arenas are
not.authorized by this NWP. These
activities typically involve substantial
grading and filling and the use of
impervious materials for construction.
Recreational facilities can be either
public or private and will not have'a
substantial amount of buildings and
other impervious surfaces, such as
concrete or asphalt. The proposed NWP
also audiorizes die construction or
expansion of small support facilities-
such as office buildings, maintenance
buildings, storage sheds, and stables,
but does not authorize the construction
of associated hotels or restaurants. The
construction or expansion of
campgrounds can be authorized by this
NWP, provided they are integrated into
the existing landscape. These
campgrounds should have few
impervious surfaces (e.g., concrete or
asphalt) and should consist of small
cleared areas for tents and picnic tables
connected by dirt or gravel trails or
roads. •
The proposed NWP does not
authorize die construction or expansion
of campgrounds for mobile homes,
trailers, or recreational vehicles. This
NWP does not authorize the
construction of playing fields, basketball
or tennis courts, racetracks, stadiums, or
arenas. Recreational facilities not
authorized by this NWP may be
authorized by another NWP, a regional
general permit, or an individual permit.
Playing fields, playgrounds, and other '
.golf courses may be authorized by NWP
39 if they are attendant features of
residential, commercial, or institutional
developments. For example, NWP 39
can authorize the construction of a golf
course, provided die golf course is an
attendant feature of a residential
subdivision. The construction of hotels
and conference centers dial are
sometimes associated witii recreational
facilities are not authorized by this .
NWP, but may be authorized by^JWP
39, a regional general permit, or an
individual permit.
Many commenters objected to the
inclusion of support facilities or
buildings in this permit. Several
commenters wanted clarification on
how much and what type of support
buildings are authorized.
This NWP authorizes only small
support facilities that are essential to the
operation of the recreational facility.
District engineers will determine what
constitutes a "small" support facility.
Support facilities typically include
maintenance buildings, storage
buildings, and stables, but may also
include buildings that store equipment
(e.g., bicycles and canoes) that can be
rented by users of the recreational
facilities, and small offices. We
anticipate that these structures will be
small and typically have minimal'
adverse effects on the aquatic
environment. Therefore, it is
appropriate to include these structures
in the NWP. We have modified the text
of this NWP to specify that the NWP
. only authorizes small support facilities.
The fact that these buildings must be
directly related to the recreational
activity, along widi the acreage limit
and PCN diresholds, will ensure that
such support facilities are carefully
considered and will have only minimal
adverse effects on the aquatic
environment.
A couple of commenters objected to
the inclusion of golf courses and ski
areas in diis NWP because these
facilities also require intensive-
maintenance activities, including die
application of fertilizers and pesticides,
as well as utility and road maintenance.
Additionally, some ski areas may
hydrologically alter certain areas as
artificial snow is created, affecting water
flow and adversely impacting trout
streams. One commenter suggested that
this permit should only allow limited
size play diroughs, and filling-of only
small isolated wedands. This •
commenter and odiers further stated
that diis permit should focus on-
preserving natural systems and
landscape features, and incorporating
diem into die design for the course.
Several commenters objected to die
authorization of diese types of activities
due to their impacts on the
environment, suggesting that such
activities do not have to be located in
wetlands.
The proposed NWP audiorizes die
construction and expansion of golf
courses and the expansion of ski areas,
provided they are integrated into the
existing landscape. The construction of
new ski areas is not audiorized by diis.
NWP. These facilities may also require
some support buildings widi some
minor grading and filling for building
pads and foundations. Golf courses may
'require the placement of crushed stone
or gravel for cart padis or some minor
fill for greens and associated
construction activities. We believe it is
appropriate to include these activities in
this NWP.
Golf courses and expanded ski areas
authorized by this NWP should be
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Federal Register/Vol. 64, No. 139/Wednesday, July 21, 1999/Notices
subject to careful environmental design
.ind planning. For example, features to
control surface runoff, buffers
established and maintained adjacent to
open waters, integrated pest
management, and careful fertilizer and
pesticide application, are examples of
maintenance and operation activities
which reduce the impacts of these
facilities on the aquatic environment.
These types of features and practices
may be part of the.water quality
management plan required by the
proposed modification of General
Condition 9. A well-designed golf
course authorized by this NWP will
have avoided most of the wedands on
the site, Incorporated stormwater
management facilities into the course to
protect local water quality, and
established and maintained vegetated
buffers adjacent to open or flowing
waters.
One commenter asked why a project
proponent would request audiorization
under this NWP when a larger golf
course could be authorized by NWP 39.
Anodier commenter questioned the
statement In the proposed NWP
suggesting that commercial recreational
facilities may be authorized by NWP 39.
Several commenters stated that the-
Corps will subject golf courses to more
restrictions and that diose restrictions
should be stated in the NWP.
Proposed NWP 39 authorizes,the
construction of building pads,
foundations, and attendant features for
residential, commercial, and ,
institutional developments. NWP 39
does not authorize die construction of
golf courses on its own, unless diose
golf courses are attendant features of
developments. However, NWP 39 can be
used to audiorize support buildings for
a golf course, such as equlpmentstorage
buildings and clubhouses. Other
recreational facilities can be authorized
by NWP 39, such as playgrounds or
playing fields associated with schools,
provided those recreational facilities are
attendant features of the school-
buildings. We have-adequately
discussed die restrictions on golf
courses in the text of NWP 42. Division
engineers can regionally condition diis
NWP to impose additional restrictions
on this NWP and ensure that it
audiorlzes only activities widi minimal
adverse effects on the aquatic
environment. District engineers can
exercise discretionary authority if die
proposed work may result in more than
minimal adverse effects or place case-
specific special conditions on an NWP
audiorization to ensure diat the
audiorized work results in minimal
Several commenters supported the
proposed 1 acre limit for this NWP. One
commenter suggested that the NWP
should authorize the loss of no more
than 1A acre of waters of the United
States or 20 linear feet of stream.
Another commenter suggested that the
NWP should have an acreage limit of 1
acre or 20 percent of die total wetland
area on the site, with a prohibition
against filling fens, seeps, springs, sand
ponds, or bogs. One commenter
suggested that diis permit should not
authorize activities within 200 feet of
streams or rivers that contain habitat for
salmon. One commenter requested that
diis permit authorize ohly up to l/3 of an
acre of impacts for linear impact
'recreational facilities such as hiking,
and biking trails. One commenter
recommended that stream bed impacts
should not be audiorized by diis permit
since a passive recreational facility
"does not substantially change
preconstruction gradesjor deviate from
•natural landscape contours."
We believe that a 1 acre limit for
recreational facilities is appropriate.
This limit, with die notification
requirements, will enstkre that only -.
activities with minimal adverse effects
on the aquatic environment are
audiorized by diis NWP. With regard to
limiting die use of die proposed NWP in
certain aquatic habitat frypes, we believe
diat these issues are more appropriately
addressed at die regional level where
division engineers can jlmpose regional
conditions to restrict die use of diis
NWP in high value waters, or prohibit
'its use in certain waterbodies. To make
diis NWP consistent widi most of the
odier proposed NWPs, we are proposing
to change die applicable waters for diis
NWP to "non-tidal waters, excluding
non-tidal wedands adjacent to tidal
waters." We disagree diat the NWP
should not include impacts to stream
beds. The recreational facility may
require crossings over streams or bank
stabilization activities. |
One commenter suggested
significandy reducing the proposed PCN
diresholds of Vb acre and 500 linear feet
of stream bed. A couple of commenters
suggested diat a PCN should be required
for all activities audiorized by diis
NWP, because passive recreational
facilities are usually built in areas diat
are recognized as environmentally
sensitive. One commenter requested
diat Federal agencies should be
provided die audiority to reject an
activity for consideratibn under diis
permit. !
To make die PCN diresholds of die
proposed NWP consistent widi die PCN
acre. The PCN requirement for activities
causing the loss of greater than 500
linear feet of perennial and intermittent
stream bed will be retained, these PCN
requirements will help ensure diat die
activities authorized by this NWP result
in minimal adverse effects on die
aquatic environment. Since diis NWP
has a 1 acre limit, there will be no
agency coordination for PCNs. In
addition, we do not believe diat agency
coordination is necessary, since diis
NWP authorizes only those recreational
facilities diat are integrated into die
natural landscape and consist primarily
of open space.
A commenter suggested that trails
resulting in die loss of less than one acre
of non-tidal waters of the United States
should be exempt from die requirements
of General Condition 9, especially die
requirement for a water quality
management plan.
The District Engineer will determine
if the proposed recreational facility
requires a water quality management
plan to comply with General Condition
9. Small trails may not require such a
plan. However, where diere are water
quality concerns due to die construction -
and use of die facility, vegetated buffers
may be required. Stormwater
management facilities may also be
required.
One commenter said diat features
such as roads, buildings, and golf
courses result in significant indirect and
cumulative impacts in watersheds by
inducing growth in surrounding areas
and increasing runoff and hyclrologic
modifications.-This commenter further
suggested diat regionally significant
resources should be excluded from diis
NWP or impacts to such resources
limited. Many commenters focused on
die requirement that diis permit should
preserve natural systems and that die
audiorized facilities must be integrated
into die natural landscape. One
commenter stated that diis permit is not
consistent widi sound watershed
management. One commenter stated
diat die NWP encourages the removal of
trees and other vegetation adjacent to
waters of die United States, which
would increase stream bank erosion, •
and diat die Corps should establish.
explicit general conditions which
prohibit activities diat result In removal
of stream bank vegetation within
riparian areas.
The potential for activities audiorized
by diis NWP to induce growtii in
surrounding areas is outside of die
Corps scope of analysis, unless the
induced growth involves activities
regulated by die Corps. These low-
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10S9 Notices
3932;
•:o increasing.populations. The
recreational facilities authorized by the
proposed NWP are low-impact, and will
not cause significant hydrological
modifications because the facilities
authorized by this NWP consist mostly
of open space, with a small proportion
of impervious surface. The requirements
of General Conditions 9 and 21 will also
ensure that the authorized activities do
not cause substantial hydrological
modifications. The recreational facilities
authorized by this NWP will help
preserve open space if they are
constructed in the vicinity of urbanizing
area's. The construction of low-impact
recreational facilities is consistent with
sound watershed management practices.
The NWP does not encourage the
removal of riparian vegetation. This
NWP, like the other new NWPs, require
the establishment and maintenance of
vegetated buffers adjacent to waters of
the United States to the maximum
extent practicable (see General
Condition 9).
fvfany commenters requested that
mitigation should be required for
activities authorized by this NWP. One
commenter opposed the use of in lieu
fee or mitigation banking programs to
serve as mitigation for losses of waters'
of the United States authorized by this.
permit. Another commenter
recommended that mitigation should be
required for losses of less than Vb acre,
either through mitigation banks or in
lieu fee programs. One commenter
stated that preservation of adjacent
green space is not acceptable as
mitigation. This commenter further
stated that the NWP indicates that buffer
zones may be required, but there is not
an explicit requirement for vegetated
buffers and the benefit of such buffers
is questionable. One commenter said
that the remaining wetlands on the site
should be protected from further
development through deed restrictions.
Another commenter requested that the
Corps require monitoring and
evaluation standards for mitigation
plans.
District engineers may require
compensatory mitigation for activities
authorized by this NWP to ensure that
the net adverse.effects to the aquatic
environment are minimal. Mitigation
banks and in lieu fee programs can be
appropriate methods to provide
compensatory mitigation for activities
authorized by this NWP. The
preservation of wetlands or vegetated
buffers on the site can satisfy
compensatory mitigation requirements,
especially if there are high value waters
on the project site that should be
protected. The establishment and
maintenance of vegetated buffers
adjacent to waters of the United States
can be an,important part of the
"compensatory mitigation required by
district engineers. We cannot require the
permittee to preserve the remaining
waters on the site, unless the
preservation satisfies a compensatory
mitigation requirement. Otherwise, such
a preservation requirement could be
considered a taking of private property.
Through special conditions, district
engineers can require compensatory
mitigation, including monitoring plans
and evaluation standards.
Several commenters were concerned
with the use of this NWP with other
NWPs to authorize activities with larger
impacts to the aquatic environment.
We are proposing to modify General
Condition 15 to address the use of more
than one NWP to authorize a single and
complete project. In accordance with
the proposed modification of General
Condition 15, this NWP can be used
widi other NWPs to authorize a single
and complete project, as long as the
activity does not cause the loss of waters
of the United States in excess of the
highest specified acreage limit of the
NWPs used to authorize that project.
Although this NWP is intended to
authorize all activities associated with a
single and complete recreational
facility, there may be some related
activities, such as bank stabilization in
tidal waters, that cannot be authorized
by NWP 42 but can be authorized by
other NWPs.
This NWP is subject to proposed
General Conditions 25, 26, and 27,
which will reduce its applicability-.
General Condition 25 prohibits the use
of this NWP to authorize discharges into
designated critical resource waters and
wetlands adjacent to those waters. In
accordance with General Condition 26,
recreational activities resulting in the
loss of 1 acre or less of impaired waters,
including adjacent wetlands, cannot be
authorized by NWP 42 unless
prospective permittee demonstrates to
the District Engineer that the activity
will not result in further impairment of
the waterbody. General Condition 27
prohibits the use of NWP 42 to
authorize permanent, above-grade fills
in waters of the United States within the
100-year floodplain.
In response to a PCN, district
engineers can require special conditions
on a case-by-case basis to ensure that
the adverse effects on the aquatic
environment are minimal or exercise
discretionary authority to require an
individual permit for the work'."The
issuance of this NWP, as with any NWP,
provides for the use of discretionary
authority when valuable or unique
aquatic areas may be affected by these
activities. Proposed NWP D is
designated as NWP 42. with the
proposed modifications discussed
above.
43. Stormwater Management Facilities
This NWP was proposed in the July
1, 1998, Federal Register as NWP C to
authorize the discharges of dredged or
fill material into non-Section 10 waters
of the United States, including
wetlands, for the construction and
maintenance of Stormwater management
(SWM) facilities.
A large number of comments were
received in response to the proposed
NWP, many commenters supporting the
NWP and other commenters opposing
the issuance of this NWP. Those
commenters supporting the NWP stated
that it would greatly enhance low-value
wetland areas and attenuate the effects
of flood'waters. Some commenters
requested the withdrawal of this NWP.
Commenters opposing the issuance of
this NWP stated that its use will result
in more than minimal adverse effects on
the aquatic environment.-A number of
commenters stated that the NWP would
be difficult for the Corps to implement.
One 'commenter said that there is no
need for this NWP, because, SWM
facilities can be authorized by NWP 39
as a part of the residential, commercial,
and institutional development. Several
commenters were concerned about the
possible use of this NWP with other
NWPs, if SWM facilities are required as
part of the development. One
commenter stated that the NWP will
reduce incentives to locate SWM
facilities in uplands. Many of those
opposing this NWP believe that the
permit only benefits developers who
want to develop the entire upland
parcel and locate the SWM facility in
wetlands and that mitigation sequencing
(i.e., avoidance, minimization, and
compensatory mitigation) would not
take place.
The proposed NWP and the NWP
general conditions contain provisions to
help ensure that the NWP does not
authorize activities in waters of the"
United States with more than minimal
adverse effects on the aquatic
environment, individually or
cumulatively. The notification
requirements will allow district
engineers to review certain Stormwater
management activities on a case-by-case
basis and exercise discretionary
authority in those cases where the
adverse effects on the aquatic
environment are more than minimal.
Division and district engineers can add
regional or case-specific conditions to
this NWP to ensure that the NWP
authorizes only activities v;ttl\ minimal
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Federal Register/Vol. 64. No. 139/Wednesday. July 21, 1999/Notices
Adverse effects on the aquatic
environment. An important provision of
the proposed NWP is chat it does not
authorize the construction of new SWM
facilities in perennial streams, which
will protect habitat for fish and other
aquatic organisms.
Aldiough an SWM facility can be
audiorized by NWP 39 as an attendant
feature of a single and complete
development project, there are
circumstances that warrant a separate
NWP for SWM facilities. For example,
some SWM facilities may be constructed
by a local government as part of a
watershed plan, not for a particular
development. SWM facilities may also
be required for transportation projects or
upland development activities. This
NWP will not reduce incentives to
locate SWM facilities in uplands,
because die permittee is still required to .
comply witii General Condition 19 and
provide with die notification, a written
statement to the District Engineer
explaining why the SWM facility must
be constructed in waters of'the United
States and why additionalminimization
cannot be achieved (see paragraph (d) of,
the proposed NWP). General condition
19 requires diat the permittee avoid and
minimize work in waters of the United
States on-site to die maximum extent
practicable.
A number of commenters stated that
SWM facilities should not be
constructed in waters of the United
States. One commenter said that SWM
facilities should not be constructed in
waters of the United States adjacent to
perennial streams. Many commenters
Indicated that stormwater should be
treated In uplands before it is
discharged Into waters of the United
States. One commenter stated that SWM
facilities can only increase wedand
functions and values when they are
constructed in non-wetland areas. A
commenter recommended modifying.
the NWP to allow die use of wedand
systems for passive treatment of
stormwater runoff. Many state agencies
said that diey do not allow die treatment
of stormwater in wetlands. One
commenter stated diat die ,use of the
NWP In waters of die United States
should be limited only to receiving
stormwater runoff, which will not
permanendy change die waters of die
United States, and proposed a l/3-acre
limit for structures, such as outfalls.
Another commenter stated that die NWP
should not audiorize SWM facilities In
waters of die United States, unless die
project results in enlargement and
enhancement of existing wedands. One •
wetlands and non-point source
pollution control programs and
requested clarification regarding what
constitutes "in certain circumstances,"
as cited in the preamble discussion
concerning the placement of SWM
facilities in waters of the United States
in the July 1, 1998, Federal Register
notice. This commenter also objected to
the proposed NWP because it audiorizes
SWM facilities in streaips and said that
these activities will result in die
destruction of stream morphology and
destabilize die stream bed, reducing
wate.E and habitat quality. One
commenter stated that stormwater
management ponds constructed in
wedands actually encourage a slower
decomposition of toxins, and locating
an SWM facility in wetlands creates
greater potential for toxic pollution if
die pond containment structure or fill
fails or the pond is overfilled. A
commenter recommended prohibiting
die construction of stormwater
detention facilities in vtaters of the
United States within 150 feet of the
ordinary high water mark.
The construction of SWM facilities in
waters of die United States is often
necessary, and may projvide more
protection to die 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 diese
areas better able to trap! sediments and
pollutants than upland:areas. The local
aquatic environment benefits from more
efficient SWM facilities. Low value
wedands and low value ephemeral and •
intermittent streams may be .the best
places to locate SWM facilities, to
reduce adverse effects to higher value
waters by attenuating storm flows and
preventing pollutants from further
degrading those areas. The proposed
NWP audiorizes the construction of
SWM facilities in waters of die United
States, particularly low value waters,
provided diat adverse effects on die
aquatic environment are minimal.
Division engineers can regionally
condition this NWP to (prohibit its use
in high value waters. For diose activities
that require notification, discretionary
authority will be exercised by district
engineers oh a case-by7case basis where
the adverse effects on the aquatic
environment are more than minimal.
We do not agree diat die NWP should
be limited only to diosfe projects diat
enlarge or enhance existing wedands. In
addition, we do not agree that die
the ordinary high water mark because
this requirement would prevent district
engineers from using this NWP to
authorize many effective SWM facilities
with minimal adverse effects on the
aquatic environment.
Through die notification process,
district engineers will determine which
SWM facilities can be authorized by this
NWP. Locating SWM facilities in
ephemeral and intermittent streams will
help reduce degradation of perennial
stream morphology by reducing die
velocity of surface water flows during
storm events. Adequately designed
stormwater detention and retention
ponds, particularly those ponds
constructed in locations where they
most effectively capture runoff (i.e., in
ephemeral and intermittent stream
beds), will help prevent stormwater
flows from entering perennial streams
widi velocities high enough to erode the
stream banks and downcut die stream
bed. These ponds will also trap
sediments, which will help maintain.the
substrate of the stream bed and reduce
water quality degradation. Permittees
are required to maintain audiorized ,
SWM facilities to prevent the entry of
pollutants in die waterway if the pond
fills with sediment or die pond
containment structure deteriorates.
Paragraph (c) (1) of the proposed NWP '
requires prospective permittees to
submit a maintenance plan, if required,
with the PCN. The maintenance plan
will ensure that die SWM facility will .
retain its effectiveness at trapping .
sediments and pollutants and
attenuating flood waters.
Many commenters expressed concern •
for adverse effects to wedand;. diat may
result from changing from one wetland
type to another or from adverse effects
caused by secondary impacts due to
flooding, excavation, or drainage. One
commenter stated diat this NWP allows
die replacement of a natural SWM
facility widi a concrete facility, diereby
increasing the possibility of downstream
flooding. A commenter advocated die
preservation of natural landscapes for
flood control purposes by promoting the
use of non-structural alternatives for
SWM. Some commenters said diat this
NWP should not authorize stream
relocation or the construction of ponds
in wedands and diat die Corps should
notehcburage odier changes to natural
drainage systems or diversions of
watercourses.
The proposed NWP authorizes the
construction of SWM facilities, which
may result in wedand conversion and
die flooding, excavation, or draining of _
wedands. Some relocation of
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39283
•.verlanrts within che 100-yenr
fiooriptain. is often required and the
condition would put an unnecessary
burden on their departments while
delaying their projects. They
recommended exempting NWP 14 from
rhis condition. Few of the objectors
recommended which specific NWPs,
existing or proposed replacements.
should be excluded from this condition.
Collectively, every NWP was
recommended for exclusion.
To reiterate, in accordance with
Executive Order 11988, district
engineers should avoid authorizing
floodplain developments whenever
practicable alternatives exist outside of
the floodplain. The proposed General
Condition 27 prohibits the use of certain
NWP activities that could result in more
than minimal adverse impacts to the
aquatic environment, as well as the 100-
year floodplain. We believe that, with
proper planning, transportation
departments will have ample time to
attain a permit through the individual
permit process-without undue delays
and excessive risks to public safety. In
the event of a "wash-out" due to a storm
event, NWP 3 can be used to repair
public and private roadways.
Limiting the Use. of the NWPs in
Designated Critical Resource Waters
We proposed in the October 14, 1998,
Federal Register notice, to limit the use
of NWPs.in critical resource waters
designated by State or Federal agencies. •
Many of the comments we received
addressed proposed restrictions on the
applicability of the NWPs in critical . '
resource waters. Most of those
comments generally supported the
adoption of such restrictions, and they
focused on suggestions for defining
critical resource waters. These
suggestions advocated the inclusion of
the following waters as critical resource
waters: waters that have any kind of
special value designation by Federal,
State, or local governments; sensitive
and specially valuable waters; habitat of
endangered, direatened, or sensitive
species; source waters for drinking
water;, groundwater recharge zones; rare
and irreplaceable wetlands that cannot
be mitigated with current technologies;
and waters declared as impaired under
Section 303(d) of die Clean Water Act.
We have considered each of diese
recommendations, as discussed below.
Waters that have any kind of special
value designation by Federal, State, or
local governments: For waters that have
received a Federal designation of special
value, we agree that the use of NWPs
should be restricted to the extent that
their applicability is reasonably certain
to jeopardize any essential functions ;
which confer the recognized special
value to these waters. We are proposing
to add a new NWP general condition
(General Condition 25) to address the
use of NWPs in designated critical
resource waters. Proposed General
Condition 25, entitled Designated
Critical Resource Waters, prohibits die
use of NWPs 7, 12, 14, 16. 17. 21, 29, '
31,35.39, 40. 42. 43, and 44 for any
activity in the following critical
resource waters including wetlands
adjacent to diese waters: NOAA-
designated marine sanctuaries, National
Estuarine Research Reserves, National
Wild and Scenic Rivers, critical habitat
for Federally-listed threatened and
endangered species, coral reefs, State
natural heritage areas, or outstanding
national resource waters officially
designated by the State where those
waters are located. Outstanding national
resource waters and other waters having
particular environmental or ecological
significance must be officially
designated through an official State
process (e.g., adopted through
regulatory or statutory processes,
approved dirough State legislation, or
designated by die Governor). In diose
circumstances where a waterbody has
been designated by the State, the
District Engineer will publish a public
notice advising the public diat such
waters will be added to die list of
designated critical resource waters. The
District Engineer may, on his own,
designate critical resource waters after
notice and opportunity for public
comment. For activities authorized by
NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25,
27, 28, 30, 33, 34, 36, 37, and 38,
proposed General Condition 25 requires
the prospective permittee to notify die
District Engineer in accordance widi
General Condition 13 for any activity
proposed in these designated critical
resource waters, including adjacent
wetlands. This general condition also
prohibits discharges in designated
critical habitat for Federally-listed . -
endangered or direatened species unless
the activity complies widi General
Condition 11 and the U.S. FWS or the
NMFS has concurred in a determination
of compliance widi diis condition.
We believe diat special value
designations promulgated solely by
State or local agencies without the
approval of die governor or State
legislature are not appropriate bases for
die imposition of restrictions on die use
of diese Federal permits. We believe
diat restrictions which are necessary to
support die odier State and local special
value designations should be effected
through relevant State and local
processes.
Several commenters suggested that
Wild and Scenic Rivers, biue-ribbon
trout fisheries, and American Heritage
Rivers were all examples of waters diat
have been designated as having special
value, and diat these particular
categories of waters should be
categorically excluded from NWP
eligibility. Since there is no official
Federal designation of any waters as
•blue-ribbon trout fisheries, we do not
agree that diese waters should be
excluded from this Federal program.
The NWP general conditions already .
impose restrictions on NWP eligibility
in waters diat are components of Wild
and Scenic River Systems, and on any
river officially designated by Congress
as a "study river" for. possible inclusion
in such systems. Since diis general
condition imposes restrictions that
achieve die goals of adequately
protecting special values, and o'f"
maximizing NWP utility, we do not
believe diat further restriction is
appropriate or necessary. American
Heritage Rivers may be likely candidates
for inclusion as critical resource waters
but it is difficult to identify any possible
adverse effect that would result from
NWP eligibility in diese waters. It is
particularly difficult to identify such
effects from a national perspective.
We believe diat die imposition of any
restriction Lrr.poseoV to protect Critical
Resource Waters must be precise in its
scope, in order to provide all reasonable '
and^necessary protection of die factors
conferring special value, without
unnecessarily limiting die utility of die
NWPs. Since we believe that diese two
goals are equally important, we have
concluded diat it would be too broad a
restriction to eliminate die applicability
of any NWP in special value waters
without a prior Corps determination
diat the NWP in question posed some
reasonable likelihood of adverse effect,
on the recognized special value. Our
consideration of die comments received
and our concern about undue
restrictions on die NWPs, lead us to
conclude diat we are unable to make
additional determinations from a
national perspective. As a result, we
believe diat any such determination of
other types of waters would most
appropriately be made at die district or,
in some cases, at the division level, and
diat as a practical matter, die necessity
of further restriction to protect waters
diat have a Federal special value
designation must be determined by die
Corps district or division and
implemented as regional conditions on
die NWPs, as necessary.
Sensitive and specially valuable
waters: There is no official Federal
designation, of any waters as sensitive or
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Federal Register/VoI. 64, No. 139/Wednesday, July 21, 1999/Notices
specially valuable waters, therefore
there is no Federal definition of such
waters. We believe thac the inclusion of
such arbitrary terms in the definition of
Critical Resource Waters would be
counterproductive, and we do not agree
that introduction of additional
ambiguity is appropriate. We further
believe thac the use of any NWP in
waters identified by the Corps, on a
case-by-case basis, as having some
particular sensitivity or special value
thac is susceptible to degradation by the
accivicy auchorized by the NWP. can be
adequately procecced by the Corps use of
its discretionary authority to require an
individual permiC review, as necessary.
Habitat of endangered, threatened, or
sensitive species: Federal protection for
the critical habitat of Federally-listed,
threatened and endangered species is
provided in all Corps permic actions
through compliance with the
requirements of the Endangered Species
Act, with the regulations promulgated
pursuant to that Act, and through NWP
General Condition 11. General
Condition 25 contains a provision
stating that discharges are not
authorized in designated critical habitat
for Federally listed threatened or
endangered species unless the activity
complies with General Condition 11 and
the U.S. Fish and Wildlife Service or the
National Marine Fisheries Service has
concurred in a determination of
compliance with this condition. Since
"sensitive species" is'a term that is not
defined in the Endangered Species Act
or in any other applicable Federallaw,
we believe that including the habitat of
such "sensitive species" would promote
confusion rather than provide clarity in
the definition of critical resource waters,
and we do not believe that such
Inclusion is appropriate.
Source waters for drinking water: We
do not believe thac any of the activities
authorized by the NWPs pose any
inherent threat to drinking water or to
"he source waters for drinking water, but
.c may be possible for such adverse
effects to occur in certain
circumstances. However, we believe '
that the specification of all such source
waters as critical resource waters would
impose a restriction on the utility of the
NWPs that is not warranted by the
limited extent of potential adverse
effects. In light of this, we believe it is.
more appropriate to rely on the Corps
use of its discretionary authority, oa a •
case-by-case basis, to ensure against
adverse effects on drinking water.
Croundwarer recharge zones: We
agree thac any activity that significantly •
impairs groundwater recharge functions
inherently result from the kinds of
activities authorized by the NWPs. As
such, we believe that any restriction on
the authorization of an activity should
be based on the effects that are expected
to occur as a result of a Specifically
proposed activity. Since we do not
expect the majority of activities
authorized by the NWPs to adversely
affect groundwater recharge, we believe
that our ability to assert'discretionary
authority to require an individual
permit in lieu of any NWP. for cause,
provides ample protection for
groundwater recharge zbnes.
flare and irreplaceable wetlands that
cannot be mitigated with current
technologies. . \
As with many of the other types of
wetlands suggested far-inclusion as
critical resource waters,! the term "rare
and irreplaceable wetlands that cannot
be mitigated with current technologies"
is undefined, and the general
nationwide specification of such
wetlands as critical resource waters
would be a continuing source of debate
'and, therefore, impractical. However,
we acknowledge that many wetlands
systems may qualify as '['rare and
irreplaceable" because of their location
in the landscape of a particular region.
We believe that such locally rare and
irreplaceable wetlands ire critical
resource waters because! of their local
importance. We believe that as such
wetlands are recognized, by Corps
district and division offices, the
revocation of any NWP that'poses a
threat to these systems, or the
imposition of regional conditions to
avert such threats, shouid be
considered.
Wafers declared as impaired under
Section 303(d) of the Clean Water Act:
"Impaired waters," as defined in
Section 303(d) of the Clean Water Act,
are addressed as a separate issue in the
next section of this Federal Register
notice, and as such, we do not believe
it is appropriate to include these waters
in the definition of critical resource
waters. |
Proposed General Condition 25
prohibits the use of NWPs 7, 12, 14, 16,
17. 21, 29. 31, 35, 39, 40. 42. 43, and 44
for any activity in certain Federally- and
State-designated critical resource .
waters, including wetlands adjacent to
those waters, with the exceptions
discussed above. For NWPs 3, 8,10,13,
15, 18, 19, 22, 23, 25, 27[ 28, 30, 33, 34, -
36, 37, and 38, notification is required
for activities in designated critical
resource waters and adjacent wetlands,
to allow the district engineer to
determine if the proposed work will
authorized by the NWPs not listed in*
General Condition 25 would not be
subject to these requirements. Corps
districts may also consider the use of
regional general permits for those
activities prohibited by General
Condition 25, if the District Engineer
determines after public notice and
opportunity for public comment that on
a regional basis, such activities will not
result in more than minimal adverse
effects on the aquatic environment,
individually or cumulatively.
Limiting the Use of the NWPs in
Impaired Waters
In the Federal Register notice
published on October 14, 1998, we
requested comments on restricting or
prohibiting the use of the NWPs in
impaired waters, including how to
identify impaired waters for the
purposes of the NWPs, and which
NWPs should be subject to this
limitation. We received a large number
of comments supporting the proposed
limitation and a large number of
comments objecting to the proposed .
limitation.
Some commenters stated that the
proposed exclusion should apply to the
use of NWPs in all wetlands and other
waters within the watersheds of
impaired waters. Other commenters
recommended that the use of NWPs
should be excluded from wedands'or
waters upstream or adjacent to impaired
waters. Two commenters stated that
NWPs should be excluded from use in
wetlands 'in impaired waters, even if the
historic loss of wetlands within the
watershed is riot the cause of
impairment, because those wetlands are
of high value in that watershed. In
contrast, several other commenters
agreed with the Corps proposal to
restrict the use of NWPs only in those
watersheds that are considered impaired
as a result of historic wetland losses.
These commenters recommended that
the exclusion apply only to "State-
designated impaired waters which are
determined to be impaired as a result of
the historic loss of wetlands." Several
commenters supported the proposed"
exclusion, provided the restriction
applies only to those projects that will
result in further degradation of the
waterbody based on the applicable
303 (d) parameter: if the proposed work
will have no effect on the 303(d)
parameter, then the project could be ,
authorized by NWP.
In the October 14, 1998, Federal
Register notice, we stated that the
impairment of certain open waters such
as lakes, rivers, and streams is direcdy
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5sdly, July 21. 1999 / Notices
39285
•j.xplicidy stated in the October 14, 1998:
Federal "Register notice, the intent of the
proposal was to restrict the use of NWPs
in waterbodies that are impaired due to
the loss of wetlands. This remains our
intent, but we are also proposing to add
several other causes of impairment that
will be considered as part of the
restriction. The additional causes of
impairment include: nutrients, organic
enrichment resulting in low dissolved
oxygen concentration in the water
column, sedimentation and siltation,
habitat alteration, suspended solids,
flow alteration, and turbidity. These
additional sources of impairment may
be related to activities regulated under
Section 404 of the Clean Water Act. We-
are proposing to incorporate this
restriction into the NWP program as
General Condition 26, entitled Impaired
Waters.
We believe diat discharges of dredged
or fill material into impaired waters of
the United States and adjacent wedands
may cause further impairment of those
waters. Proposed General Condition 26
prohibits the use of NWPs to authorize
discharges resulting in the loss of
greater dian 1 acre of impaired waters of
the United States, including wedands
adjacent to. those waters, except for
activities authorized by NWP 3,
Activities authorized by NWP 3 that
occur in impaired waters and adjacent
wetlands require notification to the
District Engineer in accordance with •
General Condition 13, who will
determine if the proposed work will
result in further impairment of die
waterbody. For activities resulting in the
loss of 1 acre or less of impaired1 waters
of the United States, including adjacent
wetlands, the prospective permittee
must notify the District Engineer in
accordance widi General Condition 13 '
and the work audiorized by NWP must
not result in further impairment of the .
waterbody. The notification must
include a statement from die permittee
that clearly explains how the proposed
work, excluding mitigation, will not
further impair die waterbody. The
District Engineer will determine if the
prospective permittee has clearly
demonstrated diat die proposed work
will not result in further impairment of
die waterbody. For discharges resulting
in die loss of greater dian V« acre of
impaired waters, including adjacent
wetlands, die District Engineer will
coordinate with the State 401 agency in
accordance with the procedures in
paragraph (e) of General Condition 13.
The District Engineer will consider any
comments received from die State 401
agency to determine if the proposed
vvnrlf vvill nnf pp^ulf in FitFtHoe
impairment of the listed waterbody. If
the District Engineer determines that the
proposed activity will not result in
further impairment of die waterbody by
providing additional inputs of the listed
pollutant (i.e., nutrients, organic
enrichment resulting in low dissolved
oxygen concentration in die water
column, sedimentation and siltation,
habitat alteration, suspended solids,
flow alteration, turbidity, and loss of
wetlands), then die project can be
authorized by NWP if it meets all of the
other terms and conditions of die NWPs.
If the District Engineer determines that
the .proposed activity will result in
further impairment of die waterbody by
contributing more of the listed pollutant
to the impaired waterbody, dien die
project cannot be audiorized by NWP
and die project proponent must apply
for authorization either through the
individual permit process or obtain
audiorization through an appropriate
regional general permit, if available.
For die purposes of this proposed
general condition, impaired waters are
those waters of die United States that
have been identified by States or Tribes
through die Clean Water Act Section
303(d) process as impaired due to
nutrients, organic enrichment resulting
.in low dissolved oxygen concentration
in the water column, sedimentation and
siltation, habitat alteration, suspended
solids, flow alteration, turbidity, and die
historic losses of wetlands. The Corps
will defer to states to identify these
waters under die Section 303(d) process,
because states are responsible for
implementing Section 303 of die Clean
Water Act, specifically the Total
Maximum Daily Load (TMDL) program
overseen by EPA. TMDL standards must
be approved by EPA after a formal
public notice and comment period.
States must submit lists of impaired
waters to EPA every two years. The
.authorized activity itself can result in
net improvement of die aquatic
ecosystem. For example, NWP 13 can be
used to authorize bank stabilization
activities in a waterbody that has been
identified as impaired due to
sedimentation, because die bank
stabilization activity reduces die
amount of sediment entering the
waterbody, thereby improving water
quality. Compensatory mitigation can be
used to offset losses of waters of die
United States audiorized by NWPs and
reduce die sources-of pollution causing
impairment of die local aquatic
environment. The establishment and
maintenance of vegetated buffers
adjacent to open and flowing waters is
a type of compensatory mitigation than
ran hpln imnroyp fhi* impaired
waterbody by restoring aquatic habitat.
removing nutrients from surface runoff
and groundwater flowing into
waterbodies. trapping sediments, and
moderating changes in water
temperatures.
Several commenters believe that the
use of NWPs in impaired waters is a
violation of the Clean Water Act and -
that individual permits must be used
" instead to authorize Section 404
activities. A number of commenters
objected to the proposed exclusion
because diey believe that concerns for
impaired waters should be addressed by
states or Tribes under Sections 101(b)
and 401 .of. the Clean Water Act. Several
of these commenters stated fhat die
proposed exclusion duplicates State
efforts and is unnecessary for the NWP
program, because states currendy
consider the effects of development
projection impaired rivers. A number
of commenters expressed concern that
excluding die use of NWPs from
impaired waters will result in'additional
pressures on average quality waters.
The use of NWPs in impaired waters
is not a violation of die Clean Water Act,
particularly when a State, Tribe, or EPA
issues a Section 401 water quality
certification eidier for die NWP itself or
for a case-specific NWP audiorization. If
die 401 agency determines that a project
does not meet die water quality
standards of the State or Tribe, resulting
in further impairment of the waterbody,
they can deny water quality certification
for that particular activity. The
requirements of proposed; General
Condition 26 will not place additional
pressures on impaired waters, because
most project proponents are unlikely to
relocate their projects to areas adjacent
to or in unimpaired waters. It is
important to remember diat NWPs are
optional permits, and the project
proponent can apply for audiorization
through the individual permit process if
he or she cannot meet die terms and
conditions of an NWP. They are much
more likely to request an individual
permit for a project rather than
relocating the project to try to obtain an
NWP audiorization.
Many commenters objected to
restricting or eliminating die use of
NWPs in impaired waters. Reasons for
dieir objections include: (1) Eliminating
die use of NWPs in impaired waters is
illogical and will not provide any
environmental benefits; (2) die Corps
does not explain how eliminating die
use of NWPs in impaired waters will
repair or fix die impairment; (3) no
information is provided in die October
14, 1998, Federal Register notice to
support that impairment is due to
historic losses of wetlands in the
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Federal Register .'Vol. 64. No. 139/VVednesday, July 21. 1999/Notices
watershed, since few states have
identified waters where the impairment
ts due to loss of wetlands; (4) historic
wetland loss is an insignificant source
of impairment for most waterbodies: (5)
no clear definition of "impaired waters"
was provided in the October 14. 1998.
Federal Register notice; (6) many State
Section 303(d) lists have not been
approved by EPA; and (7) the Corps
provided no justification for making this
a Federal exclusion.
Restricting the use of NWPs in waters
that are impaired because of nutrients,
organic enrichment resulting in low
dissolved oxygen concentration in the
water column, sedimentation and
siltation. habitat alteration, suspended
solids, flow alteration, turbidity, ana
historic losses of wetlands in the
watershed will benefit the local aquatic
environment by preventing additional
impairment of die waterbody and
improving the waterbody through
compensatory mitigation and best
management practices. It is important to
note that impaired waters are identified
by evaluating open waters and segments
of streams and rivers, not the entire
watershed. Proposed General Condition
26 will apply only to those waterbodies,
or segments of waterbodies, diat have
been assessed by states under the TMDL
program. In addition, proposed General,
Condition 26 will apply only to
wetlands adjacent to those waterbodies
or segments of waterbodies. The Corps
will not Identify impaired waterbodies.
As more waterbodies are surveyed by
states under the TMDL program, there
may be additional waters subject to
General Condition 26. In the October 14.
1998. Federal Register notice, we
requested suggestions for identifying
impaired waters, and cited the Section
303(d) process as an example. Based on
the comments received in response to
the October 14, 1998, Federal Register
notice, we have.determined that the
Section 303(d) program is die most
appropriate way to identify impaired
waters. We can add die requirements of
proposed General Condition 26 to the
NWP program because those
requirements are directly related to the
goals of the Clean Water Act.
A couple of commenters questioned
how the Corps will define the phrase
"Identified with waters and aquifers
that have been identified by states as
impaired." and asked if stream flow
data, hydrologic data, or geographic .
proximity will be used as criteria.
Some commenters said there is no
Indication as to the number of waters
that are Impaired due to activities
authorized by NWPs. Many commenters
reduce the amount of geographic area
where NWPs could beiused. Several of
these commenters stated diat the
proposed exclusion would prohibit the
use of NWPs in 36% of the rivers and
3996 of the lakes in the United States.
Because of the large amount of waters
that are considered impaired through
the Section 303(d) process, a number of
commenters stated that prohibiting the
use of NWPs in impaired waters will
result in a substantial increase in the
number of individual permits processed
by the Corps, increasing its workload.
Since proposed General Condition 26
will apply only to activities In
waterbodies (and wedands adjacent to
those waterbodies) dia^ are identified by
State Section 303(d) programs as
impaired due to nutrients, organic
enrichment resulting in low dissolved
oxygen concentration in die water
column, sedimentation and siltation,
habitat alteration, suspended solids,
flow alteration, turbidity, and historic
losses of wedands in the watershed, and
the proposed general cpndition requires
that die NWP activity cannot further
impair the waterbody, jthe number of
activities for which the NWPs cannot be
used is not likely to be substantial.
Therefore, we anticipate only a
relatively minor increase in die number
of activities requiring individual
permits as a result of proposed General
Condition 26. According to EPA's
"National Summary off Water Quality
Conditions".for 1996, only 19% of the
river and stream miles [in die United
States have been surveyed for TMDLs.
For other waterfaodies, ] 40% of the lakes,
ponds and reservoirs and 72% of the
square miles of estuaries have been
'surveyed for TMDLs. Of die river miles
surveyed, 18% are Impaired due to
siltation, 14% are impaired due to
nutrients, 10% are impaired due to
oxygen depleting substances, 7% are
impaired due to habitat alteration, and
7% are impaired due to suspended'
solids. Of die pond, .lake, and reservoir
acres surveyed, 20% are impaired due
to nutrients, 10% are impaired due to
siltation, 8%. are impaired due to
oxygen-depleting substances, and 5%
are impaired due to suspended solids.
For ponds, lakes, and reservoirs, habitat
alteration was not listed as a source of
impairment in the 1990 EPA report
cited above. Of the square miles of
estuaries surveyed, 22% are impaired
due to nutrients, 12% kre impaired due.
to oxygen-depleting substances, and 6%
are impaired due to habitat alterations.
There may be some overlap in these
percentages, because more than one
future, states identify, through the ,
Section 303(d) process, additional
waters as impaired due to die causes
listed in proposed General Condition
26, then those waters and any adjacent
wetlands will be subject to this general
condition.
A few commenters objected to the
reference to aquifers in the October 1"4,
1998, Federal Register notice. Some of
these commenters stated that Section
404 of the Clean Water Act does not
provide the Corps with the authority to
regulate groundwater. They said diat
regulation of groundwater should be left
to die states, who have the legal
audiority. Other commenters requested
guidance or definitions to identify
impaired aquifers.
We agree that Section 404 of the Clean
Water Act does not provide us widi the
authority to directly regulate activities
that affect groundwater, but since the
quality of groundwater is often affected
by activities in surface waters, we can
consider the adverse effects of work
audiorized under Section 404 on water
supplies.
Many commenters discussed potential
problems with die proposed limitation,
especially if die Section 303(d) process
is used to identify impaired waters for
the purposes of die proposed exclusion'.
A large number of commenters stated
that waters included on the Section
303(d) lists for specific water quality'
criteria are not necessarily affected by
activities regulated under Section 404 of
the Clean Water Act. Many comme'nters
recommended that die proposed
exclusion should not apply to waters
that are considered impaired due to
toxic discharges, nutrient runoff,
organic pollutants, fecal coliform, and
sediment loads. Anodier commenter -
objected to the proposed exclusion
because impairment of waters may be
due to activities outside of the
watershed and not directly in the
impaired waterbody. A couple of
commenters objected to using die
Section 3.03 (d) process to Identify
impaired waters because EPA is
currently attempting to refine die entire
Section 303 (d) program and is planning
to issue proposed rules and guidance
widi specific requirements for
developing Section 303(d) lists. Another
objection is that die Section 303(d) lists
are subject to review every two years,
which may result in uncertainty/for the.
regulated public. Some commenters
oppose die use of Section 303(d) lists
because a state often uses only one data
point to make a Section 303(d)
determination and die criteria are often
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Federal Register
/oi.
64. N'o. 139/ Wednesday, Juiv 21.
1099- Notices
39287
•han orhers. resulting in inconsistent
standards between states.
The impairment of waterbodies due to
nutrients, organic enrichment resulting
in low dissolved oxygen concentration
in the water column, sedimentation and
sikation. habitat alteration, suspended
solids, flow alteration, turbidity, and the
historic loss of wetlands, may be related
to activities regulated under Section 404
of the Clean Water Act. The
requirements of General Condition 26
will ensure that the activities authorized
by NWPs will not result in further
impairment of the waterbody, so that
the NWPs will authorize only activities
with minimal adverse effects on the
aquatic environment. Impairment due to
other causes, such as metals, toxic
discharges, organic pollutants, and fecal
Toliform, will not be subject to this
general condition. We recognize that the
Section 303(d) lists are subject to change'
every 2 years and that many waters have
not been surveyed to determine if they
comply with State TMDL criteria. If '
additional waters are identified as
impaired due to the causes listed in
General Condition 26, then they will be
subject to that general condition. We
also recognize that there may be some
inconsistencies between states, but
these inconsistencies should be resolved
by EPA. which provides Federal
oversight for the Section 303(d) program
and its implementation by states.
A number of commenters proposed
alternatives to prohibiting the use of
NWPs in-impaired waters. Several
commenters stated that concerns for
impaired waters should be addressed
through either regional conditions, case-
specific discretionary authority, or
revocation of certain NWPs in specific
geographic areas. Other commenters
suggested addressing concerns for
impaired waters in the same way that
the Corps addresses endangered species
and historic property issues, by adding
a general condition to the NWPs
requiring notification to the District
' Engineer for activities that affect
impaired waters and allowing the
District Engineer to determine if the
proposed activity will result in further
impairment of the waterbody. If the
proposed work would result in no
further impairment of the waterbody,
then the activity could be authorized by
NWP. Another commenter suggested
that compensatory mitigation could be
required for NWP activities to replace
lost wetlands and increase the acreage
of wetlands in the vicinity of the
impaired waterbody. A few commenters
recommended allowing the use of NWPs
in impaired waters where the
authorized activity does not result in a
permanent loss of pollution control
features or does not cause permanent
. adverse effects to water quality, citing as
examples-stream!restoration prjflects,
. . *: I: — . I : JSii L •••** ,"••/<,» ' , ^ ^ ^
«R. JsT" • £t£ PVSSJ^"^1-
utility lufe backfills, and temporary
impacts to waters of.the United States.
Another commenter stated that the use
of NWPs in impaired waters should not
be restricted or prohibited when the
objective of the proposed work is to
restore wetlands, aquatic habitat, or
water quality, or to conduct activities
that will remove the waterbody from die
Section 303(d) list.
We agree that an NWP general
condition addressing the use of NWPs
in waterbodies designated, through the
Section 303 (d) process, as impaired due
to nutrients, organic enrichment
resulting in low dissolved oxygen
concentration in the water column,
sedimentation and sikation, habitat
alteration, suspended solids, flow
alteration, turbidity, and the historic
loss of wetlands is appropriate.
Proposed General Condition 26 requires
that activities authorized by NWPs in
impaired waterbodies and adjacent
wetlands will not result in further
impairment of the waterbody.
Compensatory mitigation, if required to
1 ensure that the authorized work results
in minimal adverse effects on the
aquatic environment, should also help
reduce inputs of the pollutants that are
causing the impairment. Such
compensatory mitigation may include:""
offsetting the authorized loss of
wetlands, establishing and maintaining
a vegetated buffer that reduces the input
of nutrients, organic matter, and
sediments into the waterbody, and
reestablishing aquatic habitat adjacent
to the waterbody. NWP_activities that
restore or enhance impaired waters are
not prohibited by proposed General
Condition 26.
In response to the October 14, 1998,
Federal Register notice, we received
many suggestions for NWPs that should
not be subject to the proposed
exclusion. Some commenters cited
specific types of activities that should
not be prohibited from NWP
authorization in impaired waters. One
commenter suggested that the exclusion
should not apply to the maintenance of
transportation projects. Other
commenters suggested that flood control
activities and the maintenance of flood
control projects should be exempt from
this exclusion. Some commenters said
that the exclusion should apply only to
those NWP activities that have a direct
effect on a Section 303 (d) parameter.
We believe that proposed General
Condition 26 should apply to all NWPs
that authorize discharges of dredged or
fill material into waters of the United
States identified as impaired due to the
causes listed in the general condition.
Proposed activities that result in further
impairment of the listed waterbody or
result in the loss of greater than 1 acre
of impaired waters and adjacent
wetlands (except for activities
authorized by NWP 3 as discussed
above) are not authorized by NWPs.
Prospective permittees are required to
notify the District Engineer in
accordance with General Condition 13.
and the District Engineer will determine
whether or not proposed work will
result in further impairment of the
waterbody. For proposed activities
resulting in the loss of greater than 1/4
acre of impaired waters and adjacent
wetlands, the District Engineer will
•coordinate with the State 401.agency in
accordance with paragraph (e) of
General Condition 13. Proposed General
Condition 26 does not apply to activities
in impaired waters that are subject only
to Section 10 of the Rivers and Harbors
Act, if there is no related Section 404
activity. Maintenance activities for
transportation projects and flood control
projects that do not result in discharges
of dredged or fill material are not
subject to die requirements of proposed
General Condition 26.
///. Comments and Responses on
Specific Nationwide Permits
.3. Maintenance
In the July I, 1998, Federal Register,
notice, the Corps proposed to modify
this NWP to authorize the removal of
accumulated sediments in the vicinity
of existing structures. We also proposed
to audiorize activities in waters of the
United States associated with the
. restoration of uplands lost as a result of
a storm, flood, or other specific event.
These additional activities are
authorized by paragraphs (ii) and (iii) of
the NWP.
General Comments on this NWP: The
original terms and conditions of NWP 3
are in paragraph (i) of this NWP. In the
July 1, 1998, Federal Register notice, we
proposed minor changes to die original
text of NWP 3. In the July 1, 1998,
Federal Register notice, we proposed to
add a notification requirement for all
work authorized by paragraph (i) of the
proposed modification of NWP 3 except
for the replacement of the structure. We
also inserted the phrase "or damaged"
after the word "destroyed." We also
received some comments concerning the
provisions of NWP 3 as published in the
December 13, 1996, issue of the Federal
Register (61 FR 65874-65922).
Some commenters recommended
removing the PCN requirement from
paragraph (i) whereas other commenters
suggested modifying the NWP to require
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Federal Register • Vol. 64. N'o. 1397 Wednesday. July 21. 1999/Notices
?CNs for all activities authorized by
N'VVP 3. Many commenters stated that a
replacement project generally results in
greater impacts dian repair and
rehabilitation activities, but notification
should be required only if die repair and
rehabilitation activity exceeds the
"minor deviations in the structure's
configuration or filled area" provision of
the NWP. One commenter stated that it
was unclear whether repair and
rehabilitation activities require
notification. We have removed die PCN
requirement from paragraph (i) of this
* i »t P. since we do not believe It is
necessary to require notification for the
repair, replacement, or rehabilitation of
a previously authorized structure or fill.
Two commenters suggested diat die
definition of die phrase "minor
deviations in the structure's
configuration" should be made more
compatible with modern design
standards and another suggested that
die definition of "currently serviceable"
should be expanded to cover all
structures which have been destroyed in
a catastrophic event, such as a
hurricane.
This NWP audiorizes repair,
rehabilitation, and replacement
activities with minor deviations
necessary to comply with modern
design standards. Previously audiorized
structures or fills diat have been
damaged by catastrophic events can also
be repaired, rehabilitated, or replaced
under this NWP. We do not need to
change die definition of die term
"currently serviceable."
General comments addressing this
NWP include: (1) Prohibiting its use in
watersheds with substantial historic
aquatic resource losses; (2) prohibiting
its use in regionally identified tidal""-
waters to ensure effective protection of
dielr unique and difficult to replace
functions; (3) prohibiting Its use in
certain stream segments to ensure
minimal cumulative adverse effects; (4)
prohibiting its use in watersheds'
identified as having water quality
problems; and (5) requiring die
permittee to perform die work during
low flow conditions.
We believe diat diese restrictions are
unnecessary since NWP 3 authorizes
maintenance activities, which are
unlikely to result in more dian minimal
adverse effects on die aquatic
environment. However, division
engineers can regionally condition NWP
3 to restrict or prohibit Its use in high
value waters. Division engineers can
also regionally condition NWP 3 to
reduce die distance from die existing
structure diat accumulated sediment
che Linked States for activities
associated with die repair of uplands
damaged as a result of storms or other
discrete events.
Many commenters suggested
additional conditions, which would
allow minor deviations necessary to
incorporate best management practices.
Again, this is the intent of the phrase
"minor deviations in the!structure's
configuration or filled area" in
paragraph (i). It was also |suggested that
die repair and installation of scour and
bank protection should be included in
the NWP, as long as the applicant
provides documentation of the original
construction, including but not limited
to, "as-built" plans. Another suggested
activity to be added to N^VP 3 was die
removal of beaver dams and associated
debris to restore die "natural"
hydrology or functions of an area.
Paragraph (il) of die prpposed
modification of NWP 3 audiorizes die
installation of scour protection
necessary to protect or erasure die safety
of the structure. If bank protection is
necessary, it may be authorized by NWP
13. a regional general permit, or an
individual permit. The removal of a
beaver dam may or may hot require a
Section 404 permit, depending on
whether die removal of die beaver dam
results in a discharge of dredged or fill
material into waters of die United
States. If die beaver dam can be"
removed widiout any discharges into
waters of die United States or die
discharge consists only of Incidental
fallback, no Section 404 permit is
required. If die removal of die beaver
dam involves discharges into waters of,
die United States, tiieri a (Section 404
permit is required. If a Section 404
permit is required, die removal of a
beaver dam may be audiorized by .
another NWP such as NVJ/P 18, a
regional general permit, or an individual
permit. • f
Removal of Accumulated Sediments
in the Vicinity of Existing Structures: A
large number of commenters
recommended limits for paragraph (ii)
of NWP 3. Recommended limits ranged
from 20 to 300 cubic yards of excavated
material and 25 to 500 linear feet of
direct impacts upstream and/or
downstream of die structure. The
commenters recommending lower limits
believe that higher limits for tiiis NWP
would cause more than minimal adverse
effects on die aquatic environment The
commenters suggesting higher limits
contend diat higher limits are necessary
to authorize sediment removal when
accumulation of sediments occurs for
greater distances (e.g., in flat terrain or
acre and 200 linear fooc limits in
paragraph (ii) if die project is in
woodlands or special aquatic sites.
Several commenters believe diat diere
should be no restrictions because review
of the PCN allows the District Engineer
to limit the work to die minimum
r -•'•-ssary to maintain the function of
• , structure. One commenter stated
that die NWP should be conditioned to
prohibit stream bed "clean-outs."
Another commenter requested a
narrower definition of the term .
"vicinity."
We believe diat die 200 linear foot
limit authorizes removal of accumulated
sediments from the vicinity of an
existing structure that, under most
circumstances, results only in minimal
adverse effects on the aquatic
environment, individually or
cumulatively. Division engineers can
regionally condition tiiis NWP to
decrease the 200-foot limit or impose
limits on die quantity of excavated
material that can be removed. Since
paragraph (ii) of die proposed-'
'modification of NWP 3 requires -
notification to die District Engineer for
every activity, district engineers can
exercise discretionary authority and
require an individual permit for those
activities diat result in more than
minimal adverse effects on die aquatic
environment. Paragraph (ii) .of die
proposed modification does not
audiorize stream "clean out" activities,
unless sediments have accumulated in
die vicinity of an existing structure,
such as a bridge or culvert. Sediment
removal to deepen a stream channel is
not audiorized by this NWP. District
engineers will determine what
constitutes die "vicinity" for die
purposes of paragraph (ii) of this NWP.
One commenter recommended diat
die NWP prohibit die removal of
accumulated sediments in special
aquatic sites. Anodier commenter stated
diat compensatory mitigation should be
required if aquatic habitat is removed.
Some commenters suggested modifying
paragraph (ii).to audiorize die removal
of sediment deposits and associated
vegetation from die structures
diemselves and require testing of
sediments In areas of suspected
contamination to ensure diat the
adverse effects of die work are minimal.
We do not believe diat it is necessary
to exclude special aquatic sites from
paragraph (ii) of die proposed
modification of NWP 3. Sediment
accumulation can occur in riffle and
pool complexes and can also result in
vegetated bars which may be considered
wedands. However, these areas are
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39289
rhcse circumstances, the removal of
.icc'jmulated sediments, even if chey are
vegetated, typically results in minimal
adverse effects on the aquatic
environment. District engineers can .
require compensatory mitigation, if they
believe it is necessary to ensure that the
authorized work'results only in minimal
adverse effects, but in most situations
compensatory mitigation is unnecessary
due to the dynamic nature of the
affected area and the minor impacts to
the aquatic environment. In fact,
removal-of accumulated sediments in
the vicinity of structures may improve
the aquatic environment by removing
barriers to fish passage, it is likely that
sediments will repeatedly accumulate in
die area and will have to be removed on
a regular'basis. The phrase "in the
vicinity of existing structures." includes
removal of accumulated sediments,
including any vegetation that may be
growing on those accumulated
sediments, in and near the structures.
However, we will clarify the phrase to
read"* * * in the vicinity, of, and
widiin, existing structures * * *" In
areas where accumulated sediments
may be contaminated, district engineers
can exercise discretionary authority to
require an individual permit and require
testing to determine if special
techniques are required for the
excavation and disposal of the
accumulated sediment;
Some commenters objected to
modifying this NWP to authorize • ..
sediment removal in the vicinity of
existing structures, especially in
docking areas. One commenter
requested "that the NWP include a
definition of the term "structure" to
clarify whether or not maintenance
dredging of marina basins and boat slips
is authorized by this NWP. One
commenter suggested that "the provision
fpr^removing accumulated sediment in
front of existing structures appears to
conflict with die prohibition against
maintenance dredging in paragraph (i)
of die proposed modification to this
NWP. Several commenters also
recommended diat the Corps limit the
number of times this permit could be
used to prevent the cumulative impacts
of multiple sediment removal projects.
One commenter stated that removal of
sediment from a drainage ditch in the
vicinity of an existing structure would
be considered maintenance of an
existing drainage ditch and would be
exempt from Section 404 permit
requirements in accordance with 33
CFRPart323.4(a)(3).
We have changed the text of the
. proposed modification of NWP 3 to
clarify that maintenance dredging for
the primary purpose of navigation is not
authorized by this NWP, unless it is
specifically, authorized .by paragraphs
(ii) and (ii*" of trie NWP for other"
purposes. For example, this NWP can
authorize die removal of accumulated
sediment from a water intake structure
in a marina basin. Maintenance
dredging of existing marina basins or
boat slips may be authorized by NWP
35, NWP 19, regional general permits, or
individual permits. We believe that it is
unnecessary to limit the number of
times diis NWP can be used to remove
accumulated sediments in die vicinity
of existing structures. The removal of
accumulated sediments in die vicinity
of existing structures is unlikely to
result in more dian minimal cumulative
adverse effects on die aquatic
environment. District engineers can
determine, through their review of
notifications, if repeated removal of
accumulated sediments at a particular
site results in more dian minimal
cumulative adverse effects on the
aquatic environment. For the purposes
of this NWP, die term "structure" does
not include unconfined waterways and
channelized streams, except where die"
channelized stream consists of a
concrete-lined channel. Although the
maintenance of existing drainage
ditches is exempt under Section 404(f),
paragraph (ii) of NWP 3 authorizes die
removal of accumulated sediments in
die vicinity, of existing structures diat
does not qualify for a Section 404(f)
exemption. Maintenance activities diat
are eligible for Section 404(0
exemptions do not require die use of
this NWP.
Some commenters stated diat die
placement of rip rap to protect die
structure should be removed from diis
NWP because diis activity can be
audiorized by odier NWPs. One
commenter believes diat die placement
of rip rap should not be audiorized by
diis NWP except in areas where it is
clearly necessary to protect public
structures. Other commenters
recommended prohibiting die
placement of rip rap in areas inhabited
by submerged aquatic vegetation.
It is our intent to audiorize under
paragraph (ii) all related activities for a
single and complete project diat have
minimal adverse effects on die aquatic
environment, radier dian require the use
of multiple NWPs to audiorize those
activities. The placement of rip rap at
die foot of die structure is often
necessary to protect the structure from
scour. If sediments are accumulating in
die vicinity of the structure, it is likely
diat die structure is subject to scouring
by die sediment load of die waterbody.
In areas with substantial movement of
sediment, it is unlikely that large
populations of submerged aquatic
vegetation will become established.
because die movement of sediments in
the bed of die waterbody often will not
allow submerged aquatic vegetation to
take root and grow in the waterbody.
Furthermore, the PCN requirement in
paragraph (ii) allows district engineers
to review all proposed removal of
accumulated sediments to ensure that
die adverse effects on die aquatic
environment are minimal. If a
substantial population of submerged
aquatic vegetation inhabits die vicinity
of die structure, district engineers can
exercise discretionary audiority if die
adverse effects of sediment removal and
die-placement of rip rap will be more
than minimal.
Some commenters stated diat the
removal of accumulated sediments from
publicly-owned transportation facilities
should be exempt from notification
requirements, and no PCN should be
required for sediment removal after
heavy storms or floods, because it is too
time consuming to obtain die required
cultural and biological clearances.' -
We believe diat die adverse effects on
die aquatic environment are "die same,
regardless of whether or not a
'transportation crossing is privately or
publicly owned. The PCN requirement
is necessary to allow district engineers
to determine if the adverse effects of die
proposed work on die aquatic
environment will be minimal and
ensure that prospective permittees will
not remove more sediment than
necessary. In die event of a heavy storm,
flood, or odier natural disaster, die •
.Corps has emergency procedures 'in
place for expediting permit issuance for
activities related to repairing storm or
disaster damage.
Some commenters recommended
audiorizing die use of minor cofferdam
systems in the NWP, widiout a PCN
requirement, when removing
accumulated sediments and debris .;i
accordance with paragraph (ii) and for
activities in waters of the United States
associated widi restoring damaged
uplands in paragraph (iii).
We disagree diat diis NWP should
include the use of cofferdams, because
NWP 33 can be used to audiorize
temporary construction, access, and
dewatering activities that may be
associated with the activities audiorized
by this NWP. Combining NWP 3 with
NWP 33 for a single and complete
project is not contrary to General
Condition 15, provided die adverse
effects on die aquatic environment are
minimal.
Activities Associated with Restoration
of Uplands: Paragraph (iii) of the
proposed modification of NW? 3
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Federal Register-'Vol. 64. No. 139/Wednesday. July 21. 1999/Notices
authorizes discharges of dredged or fill
material into all waters of the United
Srates for activities associated with the
restoration of upland areas damaged by
n storm, flood, or other discrete event.
Many commenters stated that the
rostoratlon of uplands should be
removed entirely from this NWP
because it has nothing to do with the
maintenance of currently serviceable
structures and the Corps does not have
jurisdiction over-any activity in
uplands. Many of diese commenters
believe that the Corps is asserting
jurisdiction over uplands and requested
the removal of paragraph (iii) from NWP
3. One commenter suggested that
instead of authorizing die project
proponent to rebuild an upland area to
"pre-event" conditions, the permittee
should only be authorized to stabilize
die remaining uplands. Another
commenter objected to modifying NWP
3 to authorize the restoration of eroded
banks because bank erosion is a natural
process and there are no limits in the
NWP. This commenter believes that an
individual permit should be required,
with conditions- requiring die use of
coarse woody debris or other
bloengineering methods to prevent
further erosion of die bank.
The purpose of paragraph (iii) of this
NWP is to audiorize diose activities in
waters of the United States that are
associated with die restoration of
uplands damaged by a storm or odier
discrete event. The restoration of
uplands lost as a result of a discrete
natural event does not require a Section
404 permit, because diat activity is
subject to die Clean Water Act Section
404(f) exemptions. However, some work
in waters of die United States may be
necessary to complete die restoration
work. It is dils associated work in
waters of die United States diat is
audiorized by this NWP. For example,
die permittee may want to install
structures to protect die restored
uplands or remove obstructions in
waters of the United States in die
vicinity of die affected uplands.
Through paragraph (Iii) of dils NWP, we
are not attempting to regulate activities
in uplands. We agree diat paragraph (iii)
requires clarification as to die extent of
die Corps jurisdiction for upland
restoration activities and we have
rewritten paragraph (iii) to state diat •
NWP 3 authorizes discharges"* * *
into all waters of the United States for •
activities associated with die restoration
of upland areas damaged by a storm,
flood, or odier discrete event * * *"
Paraeraoh (iii) of the orooosed
associated with the replacement of
uplands lost through gradual erosion
processes; the loss of uplands must be
due to a specific event, such as a
hurricane or flood. Permittees are
encouraged, but not required, to utilize
bioengineering methods to stabilize the
restored bank. |
One commenter objected to the
proposed paragraph (Hi) of the NWP,
stating that previous c'onditions of the.
site are too difficult to document. Some
commenters recommended that the
Corps require die use pf field evidence
to estimate die prior extent of uplands,
such as contours adjacent to the
damaged areas, or as-ouilt plans for the
waterway to determine die extent of
activities audiorized b|y this NWP. Two
commenters suggested that paragraph
(iii) of NWP 3 should be applicable for
smaller events over a specific time
period (e.g., one year) rather than one
catastrophic event. '
We have made die requirement for the
prospective permittee to provide
evidence to the District Engineer to
justify die extent of the proposed
restoration less stringent, to allow die
District Engineer more flexibility to
determine if a proposed activity can be
authorized by paragraph (iii) of this
NWP. Evidence of the pre-event extent
of uplands can be provided by a recent
topographic survey or| photographic
evidence. District engineers may also
assess die surrounding landscape,
including field evidence, to evaluate the
extent of die proposed restoration and
determine if it complies widi die NWP.
The location of die ordinary high water
mark diat existed prio'r to the storm
event may be obviousjwhen visiting die
site. We realize diat most property
owners will not have a recent
topographic survey showing die extent
of the uplands on dieir property.
Paragraph (iii) of dip proposed
modification of NWP 3 specifically does
not authorize the reclamation of lands,-. ,
lost over an extended period of time due
to normal erosion processes. If die land
is suhject.to normal erosion processes, .
die landowner can prevent or reduce
further erosion dirough bank
stabilization measures, many of which
are authorized by NWP 13. If die
proposed bank stabilization measure
does riot qualify for audiorization under
NWP'13, dien die landowner can apply
for audiorization by anodier NWP, a
regional general permit, or an individual
permit. We will retairi die provision of
die NWP to audiorize only activities in
waters of die United States for
restoration of uplands lost due to
specific events, such as storms and
For paragraph (iii) of the NWP, PCN
diresholds of 1/4 acre. 10 cubic yards, [
and up to 200 linear feet of stream bed '
were suggested by commenters and ;
some commenters recommended ;
requiring notification only for activities I
in special aquatic sites. One commenter
recommended notification and agency '
coordination for all activities audiorized
under paragraph (iii).
In the July 1, 1998, proposal to modify
NWP 3, there was an inconsistency in
the notification requirements. In
subparagraph (c) of die proposed
modification, notification was required
for activities affecting greater than 1/3
acre of waters of the United States.
Subparagraph (e) of die proposed
modification stated diat notification is
required for all activities associated :
widi die restoration of uplands. We
have determined that notification
should be required for all activities
audiorized under paragraph (iii) of this
NWP, and have modified the NWP to
state that notification is required for all
activities authorized by paragraph (iii)
of NWP 3.
One commenter suggested diat the
Corps reduce the amount of time
required to submit a PCN from one year
after die date of die damage to two or ;
diree months. They believe diat two or
three months is sufficient time for the
landowner to realize diat damage to ',
uplands has occurred due to a discrete
event and determine if restoration of die
uplands will be done by die property
owner. Anodier'commenter suggested
that while a 12-month time limit after
the damage event may be enough time 'r
to plan restoration, it does not provide
enough time to obtain financing for die
restoration effort. Some commenters
recommended requiring compensatory
mitigation at a 1:1 ratio for activities
audiorized by paragraph (iii) of this
NWP.
Although landowners are usually
.immediately aware diat diey have lost ;
uplands due to astorm, flood, or other
discrete event, we believe that they ;
should be allowed one year to.
determine if they want to restore die lost'
uplands and submit a notificadon to die
District Engineer. After a catastrophic
event, many landowners require time to
recover from die event and conduct
repairs to dieir homes and otiter
structures. Restoration of dieir land is
often less urgent and die landowners
should be allowed adequate time to
carefully plan dieir upland restoration
efforts. It should also be noted diat die
one year deadline in paragraph (iii) of
the NWP applies only to die notification
requirement and diat die permittee has
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39291
yo.irs should be an adequate amount of
';me co conduct the upland restoration
activity.
Since the purpose of paragraph (iii) is
to authorize activities in waters of the
United States associated with the
restoration of uplands lost due to a
storm event, in most cases
compensatory mitigation should not be
required because the purpose of the
•.vork is to return the area to
approximately the same conditions that
existed prior to the storm event:
Activities in waters of the United States
associated with the restoration of
uplands typically do not result in more
than minimal adverse effects on the
aquatic environment and should not
require compensatory mitigation.
Carefully planned and implemented
restoration efforts may benefit the
overall aquatic environment by
repairing the damaged areas and
reducing sediment loads to the
waterbody, thereby improving water
quality. As with all NWPs, district
engineers may require compensatory
mitigation to ensure that the adverse
effects of the work on the aquatic
environment are.minimal, but we
believe that compensatory mitigation
should not be required'in most cases.
To make NWP 3 easier to understand,
we are proposing to combine all of the
conditions in subparagraphs (a) through
(e) and subparagraph (h) of paragraph
(iii) to form a single paragraph. We have
also added a note.at the end of this NWP
to clarify that NWP 3 authorizes repair,
rehabilitation, or replacement activities
that do not qualify for the Section 404(f)'
exemption for maintenance:
This NWP is subject to the
requirements of proposed General '
Conditions 25 and 26. General
Condition 25 requires the prospective
permittee to notify the District Engineer
in accordance with General .Condition
13 for activities in designated critical
resource waters, including wetlands
adjacent to those waters. The District
Engineer may authorize NWP 3
activities in designated critical resource
waters and adjacent wetlands if the
. adverse effects on the aquatic
environment are no more than minimal.
General Condition 26 does not prohibit
the use of this NWP to authorize
discharges resulting in the loss of
greater than 1 acre of impaired waters,
including adjacent wetlands. However,
NWP 3 activities in impaired waters and
adjacent wetlands require notification to
the District Engineer in accordance with
General Condition 13. The proposed
work can be authorized by NWP 3 if the
permittee demonstrates to the District
Engineer that the work will not result in
further impairment of the waterbody.
In response to .1 PCN. district
engineers can require special conditions
on ,1 case-by-case basis totenscffe rhat
the adverse effects on the aquatic
environment are minimal or exercise
discretionary authority to require an
individual permit for the work. This
NWP, as with any NWP. provides for
the use of discretionary authority when
valuable or unique aquatic areas may be
affected by these activities.
7. Outfall Structures and Maintenance
In the July 1, 1998, Federal Register
notice, the Corps proposed to modify
this NWP to authorize the removal of
accumulated sediments from outfall and
intake structures and associated canals.
All of the original terms and limitations '
of NWP 7 have been retained. Numerous
commenters expressed their support for
the proposed modifications to NWP 7. A
number of commenters objected to the
inclusion of excavation activities in
associated canals and impoundments
and questioned whether such activities
are related and similar in nature. A
couple of commenters questioned the
need for the proposed modification.
Some commenters requested acreage
and cubic yardage limits for the
additional activities authorized by the
proposed modification of NWP 7.
Several commenters recommended
restricting excavation in wetlands.
Outfalls, intakes, and associated
canals accumulate sediment and require
periodic excavation or maintenance
dredging to restore flow capacities to the •
facility. Most of the dredging is required '
in the vicinity of intake structures and
their canals because circulation patterns
result in the deposition of sediment in
these areas. This sediment must be
removed to ensure that the facility has
an adequate supply of water for its
operations. Water discharged from
outfall structures usually has little or no
sediment load and maintenance
dredging is not often required in these
areas. In situations where a utility
company's intake or outfall canal is also
used by barges to travel to the utility
facility, part (ii) of the proposed
modification of NWP 7 will allow
continued access by those barges
because the removal of accumulated
sediments will return the intake or
outfall canal to its originally designed
dimensions and restore its navigable
capacity.
We believe that authorizing some
dredging or excavation to maintain the
effectiveness of the outfall or intake
structure is necessary and an integral
part of this NWP. This NWP is
conditioned to authorize only the
'minimum work necessary to maintain
the facility, and requires the prospective
permittee to provide the District
Engineer with information on the design
capacities and configuration of the
intake or outfall structure.
impoundment, or canal. The
prospective permittee will also be
required to submit a delineation of
affected special aquatic sites with the
PCN to allow district engineers to better
assess potential adverse effects on the
aquatic environment, especially in
vegetated shallows that may occur in
the canal or in the vicinity of the intake
or outfall structure. No acreage limits
have been placed upon this NWP. Most
activities authorized by this NWP will
take place in existing canals, which
have been repeatedly dredged and
maintained and often support some
kind of industrial or commercial activity
for public benefit. Furthermore, existing
deposit areas for the dredged or
excavated sediment will typically be
present and available for use.-Where
maintenance dredging'or excavation is
proposed, notification is required and
the District Engineer can exercise
discretionary authority if the adverse'
effects on the aquatic environment will
be more than minimal. Compens_atory
mitigation will also be required where
appropriate, but in most cases we
believe that compensatory mitigation
should not be required for activities
authorized by part (ii), since it is a
maintenance'activity. Division
engineers can also impose regional
conditions on this NWP to add limits to
-the NWP or restrict orprohibi't its use
in certain waterbodies.
Several commenters supported the
proposed notification requirements.
Several commenters recommended
requiring notification for all activities
whereas other commenters suggested
specific distance and acreage thresholds
for notification.
We are proposing to retain the
notification requirement to allow
district engineers to review all activities
authorized by this NWP. Evidence of the
original design capacity and
configuration of the facility must be
submitted with the notification. This
information allows district engineers to
review the proposed work to ensure that
the removal of sediment is for
maintenance, not new dredging or
excavation.
Two commenters stated that irrigation
and farm ponds should be removed
from the proposal as they are not related'
to outfalls, while many commenters
objected to the inclusion of excavation
in small impoundments under this
NWP. Another commenter stated that
the maintenance of water treatment
facilities, irrigation ponds, and farm
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Federal Register/Vol. 64. No. 139/Wednesday, July 21t 1999/Nocices
ponds, is exempt from Section 404
permit requirements.
!n the July I. 1998, Federal Register,
notice, we stated chat the proposed
modifications to NWP 7 could be used
'0 authorize the removal of accumulated
sediments from intake and outfall
structures in small impoundments, such
AS irrigation ponds and farm ponds.
This statement is in error, since the
construction and maintenance of farm,
stock, and irrigation ponds does not
require a Section 404 permit (see 33
CFR Part 323.4(a)(3)). provided the work
does not trigger the recapture provision
;f Section 404(f)(2) of the Clean Water
Act (see 33 CFR Part 323.4(c)). The
removal of • -diments from small
impoundments is limited to the
excavation of sediment around the
Intake or outfall structure, if that
activity Is not exempt under Section
404(f). Water treatment facilities may be
constructed waters of the United States.
and possibly Section 10 waters. The
proposed modification of NWP 7
authorizes removal of accumulated
sediments in the vicinity of intake and
outfall structures constructed in waters
of the United States for water treatment
facilities.
One commenter opposed modifying
NWP 7 to authorize activities in non-
tidal waters, believing that this would
open up diousands of acres of wetlands
and streams to destruction. One
commenter stated that since the
proposed modification had no
quantitative limits for impacts, .this
NWP could cause significant and
unmitigated individual and cumulative
adverse impacts. Two commenter's
stated that no activities in tidal areas or
areas adjacent to, or contiguous with,
tidal waters should be authorized by
this NWP. Two commenters furdier
requested that outfall structures
associated with large facilities, such as
aquaculture facilities or power plants,
should be reviewed under an individual,
permit.
NWP 7 is applicable In all waters of
the United States, including navigable
waters. The proposed modification of
NWP 7 authorizes only the construction
of outfall structures and associated
intake structures and maintenance
dredging or excavation of accumulated
sediments in the vicinity of outfall arid
intake structures and associated canals.
These activities will not result in the
destruction of diousands of acres of
wetlands and streams, because most
outfall structures are fairly small and
die authorized excavation or dredging
activities are only for maintenance. The
removal of accumulated sediments from
wetlands and streams toi destruction.
Furthermore, since the authorized
removal of accumulated sediment will
be limited to the minimum necessary to
restore the facility to its [original design
capacity, the adv--"-,e effects on the
aquatic environment will usually be
minimal. The District Engineer will
have the opportunity to review all
proposed NWP 7 activities on a case-by-
case basis and will be able to add any
necessary conditions, including
compensatory mitigation requirements',
to ensure that this NWP! authorizes only
those activities with minimal adverse
effects on die aquatic environment,
individually or cumulatively. For those
activities that may result in more than
minimal adverse effectsjon the aquatic
environment, districtengineers will
exercise discretionary authority. This
NWP can be utilized for outfalls
associated with aquacuhure or power
plants. All outfalls proposed under diis
NWP must be authorized, exempted, or
otherwise in compliance with
regulations issued under the National
Pollutant Discharge Elimination System
program. ' f
Several commenters suggested adding
restrictions during fish spawning and
nesting periods. One commenter
recommended adding two additional
conditions because of potential impacts
to manatees. Anodier commenter
recommended that diiS|permit contain a
condition requiring that shorelines.
affected by activities authorized under
this permit should be revegetated.
General Condition 20 states that
activities including structures and work
in navigable waters of die United States
or discharges of dredgeci or fill material,
in spawning areas during spawning
seasons must be avoided to the
maximum extent practicable. This
condition further states' diat activities
diat physically destroy!important
spawning areas are not'authorized. In
addition, limitations iri specific waters
for certain species are more
appropriately addresseil as regional
conditions or case-specific special
conditions. Activities that may affect
Federally-listed endangered or
threatened species or designated critical
habitat must comply with General
Condition 11. Districts are encouraged
establish local operating procedures to
provide better protection for these
species and their critical habitat
General Condition 3| Soil Erosion and
Sediment Control, requires the
permittee to utilize appropriate soil
erosion and sediment controls during
construction and perrnanendy stabilize
the site at the earliest practicable date.
methods. In addition, following project
completion, some areas may naturally
revegetate. We do not believe that it is
necessary to incorporate an additional
requirement into the NWP. Where
necessary, revegetation can be required
by district engineers on a case-by-case
basis through special conditions or
regional conditions. In some cases,
mitigation requirements may also
address this issue, particularly where
the permittee is required to establish
and maintain a vegetated buffer.
One commenter stated that NWP 7
should clearly state that it audiorizes
removal of accumulated sediment in
and around intake pipes and not just
around intake pipes. Several
commenters requested that this NWP
authorize removal of accumulated
sediment in the vicinity of intake and
outfall structures for engineered flood
control facilities, including dams, flood
control facilities, and large reservoirs. ~
One commenter .asked why NWP 7 does
not audiorize the construction of intake
structures only, because they result in
similar adverse effects on the aquatic
environment as outfalls.
The proposed modification of diis
NWP audiorizes the removal of
sediments blocking or restricting outfall
or intake structures. This includes
sediment removal from inside of die
intake structure. This NWP does not
authorize the construction of new canals
or the removal of sediment from the
head works of large dams, flood control
facilities, or large reservoirs. Individual
permits, regional general permits, or
other NWPs such as NWPs 19 or 31,
may authorize these activities. NWP 7
does not audiorize die construction of
intake structures without associated
outfall structures because of die
potential for more than minimal adverse
effects on the aquatic environment
where an intake structure may be
constructed in a waterbody to withdraw
water. If the water is not returned to the
waterbody through an outfall structure,
there may be more dian minimal
adverse effects to aquatic organisms and
local water supplies, especially in arid
regions of the country.
This NWP is subject to proposed
General Conditions 25 and'26, which
will reduce its applicability. General
Condition 25 prohibits the use of this
NWP to authorize discharges into
designated critical resource waters and
wetlands adjacent to diose waters.
General Condition 26 prohibits the use
of this NWP to authorize discharges
resulting in die loss of greater than 1
acre of impaired waters, including
adjacent wetlands. NWP 7 activities
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39293
'.vedarsds. are prohibited unless
prospective permittee demonstrates to
the District Engineer that the activity
will not result in further impairment of
rhe waterbodv.
in response to a PCN, district
engineers can require special conditions
on a case-by-case basis to ensure that
rhe adverse effects on the aquatic
environment are minimal or exercise
discretionary authority to require an '
individual permit for the work. The
issuance of this NWP, as with any NWP,
provides for the use of discretionary
authority when valuable or unique.,,,,
aquatic areas may be affected by these
activities.
12. Utility Line Activities
In the July 1. 1998, Federal Register
notice, we proposed to modify this NWP
to authorize activities commonly
associated with utility lines, such as the
construction of electric or pumping
substations, foundations for overhead
utility line towers, poles, and anchors,
and access roads. Many of these
activities may have been authorized by
NWP 26.
General comments: We received many
comments addressing the proposed
changes to NWP^ 12. Some cbmmenters
suggested leaving NWP 12 unchanged.
^Other comments ranged from
supporting the issuance df the proposed
modifications of NWP 12 to
recommending the revocation of NWP
12. Many commenters concurred with .
the proposed acreage limits and PCN
thresholds for the additional activities
included in this NWP. Some .
commenters proposed higher acreage
limits and PCN thresholds. Other
commenters recommended lower
acreage limits and PCN thresholds for
the additional activities. Many
commenters stated that the proposed
changes would improve the-efficiency of
the NWP program and prevent the
increase of regulatory burdens, without
causing more than minimal adverse
effects on the aquatic environment.
Many commenters expressed
opposition to the expansion of NWP 12
to authorize utility line substations,
foundations for utility towers, and
permanent access roads. These
commenters stated that this proposal
would be a major expansion of the
limits of NWP 12, resulting in
significant losses of wetlands and other
waters of the United States. Several
. commenters stated that there would no
longer be any incentive to locate these
facilities'iirup lands because the
proposed modification would authorize
dieir construction in wetlands. Some
commenters believe that concerns
regarding individual and cumulative
adverse effects on the anuatic
environment resulting from the ^
modification of'NWP 12 could bew"
addressed through the regional
conditioning process.
We believe the NWP terms, limits,
and notification requirements, will help
to ensure that the proposed
modification of NWP 12 authorizes only
those utility activities with minimal
adverse effects on the aquatic.
environment. The review of PCNs by
district engineers and the regional
conditioning process will ensure that
the NWP authorizes only those activities
with minimal adverse effects on the
aquatic environment and will address
regional and watershed concerns. The
notification provisions of NWP 12 will
allow district engineers to exercise
discretionary authority for rhose utility
line activities that may result in more
. than minimal adverse effects on the
aquatic environment.
One commenter recommended
combining utility lines with roads and
other linear projects into one NWP -
permit and authorizing other utility line
activities that are not linear in nature,
such as substations and foundations for
overhead utility lines, by another NWP
because diey are more similar in nature.
We believe that utility line
substations, foundations for utility line
towers, and permanent access roads for ,
utility line maintenance are more
appropriately authorized by NWP 12,
instead of a separate NWP for these
activities, because these activities are
integral to single and complete utility
line projects and the adverse effects for
these activities should be considered
under one NWP. All of the activities
identified in NWP 12 are associated '
with typical utility projects and are
similar in nature to other utility
projects. We have changed the title of
this NWP from "Utility Activities1' to
"Utility Line Activities" to better reflect
the related nature of these activities for
utility line construction, maintenance,
and operation. We also believe that most
of these projects, when conducted
within the specified limits of the NWP,
will have no more than minimal adverse
impact on the aquatic environment.
Finally, in those cases where proposed
activities may have more than minimal
adverse effects on the aquatic
environment, we believe that the
notification and regional conditioning
processes will serve to ensure that the
NWP authorizes only utility line
activities with minimal adverse effects.
on the aquatic environment.
One commenter made the following
recommendations concerning NWP 12:
(1) The NWP should apply only to
previously developed areas and well-
established utility corridors: (2) rhe
clearing of forested wetlands should be
excluded from this NWP: (3) the NWP
should be excluded from wedands in
migratory corridors or near wetlands
heavily used by migratory birds; and (4)
the NWP should contain a provision
requiring the planting of native species
in disturbed areas and the removal of
noxious and invasive plant species.
Another commenter recommended
excluding the use of NWP 12 in special
aquatic sites and endangered species
habitat.
We do not agree with the
recommendations in the previous
paragraph. NWP 12 authorizes only
those utility activities that result in
minimal adverse effects on the aquatic
environment, individually or
cumulatively. It is unnecessary and
impractical to limit NWP 12 only to
activities in existing utility corridors. If
the proposed utility line will result in
more than minimal adverse effects on
the aquatic environment, district
engineers can exercise discretionary
authority and require an individual
permit. Regional conditioning or case-
by-case discretionary authority is the
best mechanism to address potential
adverse effects to wetland habitat.
Regional conditions can also address
concerns for revegetating areas •
temporarily affected by the authorized
work. District engineers can add special'
conditions'to NWP 12 authorizations to
specify certain plant species to be
planted in disturbed areas. General
Condition 11 adequately addresses
potential effects of the use of NWP 12
on Federally-listed endangered or
threatened species or designated critical
habitat.
Utility lines: One commenter
recommended limiting NWP 12 to
utility lines that are less than 10 miles
in length and six inches in diameter,
with an acreage limit of 2 acres. Other
recommended acreage limits included 1
acre and l/3 acre. One commenter
expressed concern about allowing
sidecast material to remain in waters of
the United States for up to six months,
particularly in tidally influenced waters.
To minimize adverse effects to marine
fisheries, this commenter recommended
conditioning NWP 12 to require the
permittee to leave gaps in sidecast
material at minimum intervals of 500
feet and prohibiting the placement of
sidecast material in a manner that
blocks natural surface water flows.
. Another commenter recommended
prohibiting sidecasting of material
during utility line maintenance
activities to protect unique wetland
functions. Some commenters questioned
the requirement that excess material
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Federal Register/Vol. 64. No. 1397Wednesday, July 2
1, 1999/Notices
:r,ust be removed to upland areas
immediately upon completion of
construction and one recommended
Jhat. in light of the recent Fifth Circuit
Court of Appeals ruling in American
Mining Congress, ec al, v. Corps of
Engineers, the Corps move the sentence
concerning excess material to paragraph
|i) of NWP 12. This commenter also
stated that they assume that this
requirement is intended to apply only to
soil or other material that is dredged or
excavated in significant quantities and
redeposited at another location within a
water of the United States, and not to
clearing vegetation above ground.
Regional conditioning is the best
mechanism for placing acreage limits on
utility line construction, if division
engineers believe that the cumulative
adverse effects of utility line •
construction may result in more than
minimal adverse effects on the aquatic
environment within a particular region.
Regional conditions are also the best
way to address concerns regarding the
maximum amount of time sidecast
material should remain in waters of the
United States and whether or not gaps
or culverts should be placed in the
temporary piles of excavated material to
maintain surface water flows. In "
addition. General Condition 21,
Management of Water Flows, requires
that the permittee conduct the work so
that preconstruction water flow patterns
are maintained to the maximum extent
practicable after completion of the
authorized work.
The requirement for removing excess
fill materials upon completion of
construction will be retained in this
NVVP. This NWP authorizes temporary
fills to install the utility line, such as
sidecasting into waters of the United
States during installation, provided the
permittee backfills the trench. Any
excavated material placed in waters of
the United States diat is not used to
backfill the trench must be removed
upon completion of the work or it will
be considered a permanent fill requiring
a separate Section 404 permit. An
important requirement to ensure that
activities authorized by NWP 12 will
have no more than minimal adverse
effects on the aquatic environment is the
requirement to maintain
preconstruction contours and elevations
as close as possible after completion of
the authorized work. Clearing vegetation
by cutting it above the soil surface does
not require a Section 404 permit, as long
as there is no discharge of dredged or
fill material Into waters of the United
States. In addition, if the proposed work
is in a forested wetland, any '
hanized landcleaclni
will require a PCN. The Corps believes
it is necessary to retain this provision to
ensure that this NVVP authorizes
activities with only minimal adverse
effects on the aquatic environment.
One commenter recommended that
the NVVP contain a requirement that all
wastewater lines haveino-seam pipes
beneath perennial or intermittent
streams to reduce the potential for
untreated wastewater leaking into these
streams. Another comfnenter
recommended conditioning NWP 12 to
require the installation of anti-seep
collars at the downstream wetland
boundary and every 150 feet up the
gradient until the utility line exits the
wetland at the upstreahi or up-slope end
to prevent the lateral draining of the
wetland caused by the gravel bed
beneath the utility line: One commenter
recommended requiring perpendicular
(between 75 and 105 degrees) stream
crossings. i
General Condition 2! Proper
Maintenance, requires fthat permittees
maintain all authorized structures or
fills to ensure public safety. Permittees
must also comply widiSection 402 of
the Clean Water Act, which requires a
permit for the discharge of effluent into
waters of the United States. Wastewater
lines must be designed1 and maintained
so that they do not leak untreated
wastewater into waters' of the United
States. NWP 12 also includes a
requirement that a utility line may not •
be constructed in suchja manner as to
drain waters of the United States (e.g.,
backfilling with extensive gravel layers,
which may create a french drain effect,,
and failing to take appropriate measures
to prevent the lateral draining of a .
wetland).
We believe that perpendicular stream
crossings are environmentally preferable
in many situations. However, these
types of crossings are not always
feasible and we have determined that it
is better to require notification where a
utility line is proposed !to be placed
within a water of the United States and
runs parallel to a stream bed within that
jurisdictional area. These projects will
be reviewed on a case-by-case basis to
determine if the activities would have
more than minimal adverse effects on
the aquatic environment. In addition,
regional conditions can address
concerns about certain activities and/or
impacts to certain waters of the United
States. - \ .
Many commenters concurred with the
statement in the.preamble that the
installation of subaqueous utility lines
in waters of the United States should
not be considered as resulting in a loss
line is the minimum necessary and
preconstruction contours and elevations
are restored after construction. A
number of commenters expressed
concern about adverse effects associated
with utility projects and believe that "
compensatory mitigation should be
required to offset those adverse effects.
Some commenters also questioned why
the term "loss" only applies to
permanently affected waters of the
United States. One commenter stated
that the term "loss" should apply to the
clearing of forested wetlands for the
construction of overhead power
transmission lines where the forest will
not be allowed to grow back.
We believe that the installation of
utility lines diat results only in
temporary adverse effects on waters of
the United States should not be
considered a loss if preconstruction
contours and elevations are restored
after construction and there are no
permanent adverse effects to the aquatic
environment resulting from the activity.
While temporary adverse effects to
water quality, fish and wildlife habitat.
and other components of the aquatic
environment may result, the areas
typically return to preconstruction
conditions if die terms and conditions
• of the NWP are met. In these cases,
compensatory mitigation should not be
required. However, should the
installation of a utility line result in die
permanent conversion of a forested
wetland to anodier wetland type in a
permanendy maintained right-of-way,
compensatory mitigation may be
required by the District Engineer if it is
necessary to ensure that die authorized
work will result in minimal adverse
effects on the aquatic environment.
Finally, in those cases where die
proposed work may result-in more than
minimal adverse impact Tin the aquatic
environment, we believe die notification
and regional conditioning processes will
ensure uiat die NWP authorizes only
activities with minimal adverse effects
on the aquatic environment. In addition,
compensatory mitigation can be
required for any NWP 12 activity
requiring a PCN to ensure diat die
adverse effects of the autiiorized work
on die aquatic environment ace
minimal, individually or cumulatively.
The NWP akeady contains provisions
addressing the clearing of forested
wedands. District engineers will
determine if compensatory mitigation
should be required for die conversion of -
a forested wedand to an emergent or
scrub-shrub wetland in a maintained
utility line corridor.
In the first sentence of paragraph (i).
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39295
lines in addition to fheir construction.
Since N'.VP 12 can be used to authorize
the construction of utility lines in both
Section 10 and Section 404 waters, we
have added the phrase "in all waters of
the United States" to'the text of
paragraph (i).
Utility line substations: Some
cominenters recommended that the
Corps withdraw this part of the
proposed modification of NWP 12.
Many commenters recommended higher
acreage limits, ranging from 2 to 3 acres.
A number of commenters recommended
lower acreage limits. One commenter
requested that the Corps clarify what is
meant by the term "pumping
substations" and.suggested using the
term "compressor station" instead.
We believe .that the 1 acre limit for tht
construction of utility line substations is
appropriate to authorize the
construction of most utility line
substations with minimal adverse
effects on the aquatic environment.
However, we have lowered the PCN
direshold for the construction of utility
line substations to l/4 acre, to make it
more consistent with the other proposed
new and modified NWPs. We also agree
that some clarification is appropriate to
specify the types of utility line
substations are authorized by paragraph
(ii). The term "utility line substations"
includes power line substations, lift
stations, pumping stations, meter
stations, compressor stations, valve
stations, small pipeline platforms, and
other facilities integral to the operation
of a utility line.
For the proposed modification of
NWP 12, the construction or expansion
of utility line substations in waters of
the United States is limited to non-tidal
waters, excluding non-tidal wetlands
adjacent to tidal waters. We have added
this language, to paragraph (ii) to clarify -
the applicable waters for utility line
substations authorized by NWP 12, and
to make those applicable waters
consistent with most of the other
proposed NWPs.
Foundations for overhead utility line
towers, poles, and anchors: One
commenter recommended eliminating
the requirement to use separate footings
for utility line towers where feasible.
Another commenter noted that in
certain situations where hurricanes,
high winds, and lightning occasionally
cause damage to power line structures
and conductors, it is better to construct
a single pad beneath the footings. The
commenter requested modification of
die NWP to allow single pad-fills as long
as they result in the loss of less than Vs
acre of waters of the United States.
We have decided to retain the
proposed language because it provides
flexibility. The phrase "where feasible"
does not prohibit die construction of a
single pad* to Support die uti'Uty'fine
tower; it merely'encourages die
construction of separate footings. This
phrase provides district engineers with
die flexibility to use NWP 12 to
audiorize die construction of single
pads where there are concerns due to
hurricanes, high winds,.and odier
dangerous conditions. District engineers
can require die permittee to provide
justification as to why a single pad
should be constructed instead of
separate footings. The only requirement
is that the pads result in minimal
adverse effects on die aquatic
environment. District engineers can
require compensatory mitigation for the
losses of waters of the United States
'resulting from the construction of single
pads for overhead utility line towers.
Since the proposed modification of
NWP 12 can be used to authorize the
construction of foundations for
overhead utility line towers, poles, and
anchors in both Section 10 and Section
404 waters, we have added the phrase
"in all waters of the United States" to
die text of paragraph (iii).
Access roads: Many commenters
recommended increasing the acreage
limit for permanent access roads to 2 or
5 acres. One commenter recommended
limiting permanent access roads to lh
acre of toss of waters of die United
States^and a maximum width of 15 feet.
Several.commentejs- recommended
excluding'perminent access roads from
this NWP. One of diese commenters
objected to die inclusion of permanent
utility access roads because access roads
fragment the landscape, which can
adversely affect fish and wildlife habitat
and die water quality functions of many
wedand ecosystems. Anodier
commenter requested that the NWP
contain a provision requiring die
permittee to submit justification
explaining why permanent access roads
are needed. One commenter suggested
dial die PCN contain a requirement for
die submission of an engineering
analysis demonstrating that the culvert
size for die permanent access road is
adequate, based on watershed acreage
and the appropriate rainfall coefficient.
One commenter expressed concern
about inconsistent statements in
paragraph (iv) and die preamble
discussion relating to die effects of the
access roads on subsurface flows. This.
commenter questioned whether die
Corps had die authority to regulate
subsurface waters. A commenter asked
die Corps to clarify the meaning of
"minimum width necessary" as well as
die acceptable lengtii of road, and
questioned who would make such
determinations. Further.-diis commenter
asked who decides whether
preconstruction contours are
maintained as near as possible. One
commenter recommended adding a term
to die NWP requiring that access roads
be constructed with pervious surfaces.
We believe that die 1 acre limit for
permanent access roads is appropriate
to ensure that the NWP authorizes only
those permanent access roads that result
in minimal adverse effects on die
aquatic environment. The PCN
threshold remains the same as proposed
in die July 1, 1998, Federal Register
. notice. The construction of permanent
access roads for utility line maintenance
has die same effects on landscapes as
die construction of utility line right-of-
ways because the access roads are-
usually constructed within die right-of-
way. We do not believe that it is • •
necessary for the applicant to provide
justification for die construction of
permanent access roads or an
engineering analysis demonstrating the
appropriateness of die culvert size. For
diose activities that require notification.
district engineers will review die PCN.
and determine if die construction of
permanent access roads will result in
more dian minimal adverse effects on •
die aquatic environment. Division •
engineers can-also regionally condition
NWP 12 to ensure that die construction
of permanent access roads will result in '
minimal adverse effects. -
We agree diat we do not have die
authority under Section 404 of die Clean
Water Act to regulate groundwater
flows. Therefore, we have deleted die
reference to subsurface flows in
paragraph (iv). The District Engineer
determines if die access road is die
minimum width necessary, as well as
die appropriate lengdi of access road,
and if die access road will-result in
minimal adverse effects on die aquatic
environment. Division engineers can
regionally condition NWP 12 to specify
maximum widths and lengths of
permanent access roads dial can be
authorized by diis NWP. In cases where
a PCN is required, the Corps will review
die proposed work for compliance with
die terms and conditions of die NWP. If
a certain activity does not meet die
terms and conditions of the NWP,
another form of authorization must be
obtained.
For die proposed modification of
NWP 12, the construction of permanent
access roads for die construction or
maintenance of utility lines in waters of
die United States is limited to non-tidal
waters of die United States, excluding
non-tidal wedands adjacent to tidal
waters. We have added diis language to
paragraph (Iv) to clarify the applicable
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Federal Register/Vol. 64, No. 139/Wednesday, July 21. 1999/Notices
waters for utility line access roads
authorized by NWP 12. We have also
added a provision stating chat
permanent access roads must be
constructed with pervious surfaces.
>\'ocificaaon Requirements: Many
commenters recommended eliminating
the PCM requirement for mechanized
landclearing in forested wetlands..One
commenter questioned the requirement
for notification in forested wetlands and
requested an explanation for that
requirement. Several commenters said
that the PCN requirements for access
roads should be consistent with the PCN
requirements for roads under NWP 14.
One commenter recommended
decreasing the PCN threshold for utility
lines installed in waters of the United
States from 500 linear feet to 300 linear
feet. Several commenters supported a •
minimum notification threshold of >/3
acre. Several commenters requested
reduced thresholds for notification to
ensure minimal impacts.
The PCN requirement for mechanized
landclearing in a forested wetland has
not been changed. This requirement was
originally incorporated into NWP 12 for
the December 13. 1996. reissuance of
this NWP. The purpose of this
notification requirement is to ensure
that only minimal adverse effects on the
aquatic environment will occur when
the Installation of a utility line.occurs in
forested wetlands. In the proposed
modification of NWP 12 published in
the July 1. 1998. Federal Register, we
proposed to modify this notification
requirement By limiting the
circumstances requiring notification
only to the establishment of the utility
line right of way in a forested wetland.
so that PCNs would not be required for
any utility activity that involves
mechanized landclearing of a forested
wetland, such as the construction of a
utility line substation. We are proposing
to retain this requirement.
We disagree that the notification
requirements for permanent access
roads authorized by NWP 12 and linear
transportation crossings authorized by
NWP 14 should be the same. NWP 12
and NWP 14 authorize different types of
roads utilized for different purposes.
Permanent access roads authorized by
NWP 12 must be constructed as close to"
preconstructlon contours as possible
and at the minimum width necessary.-
We expect most permanent access roads
for utility lines to be a maximum of 15.
feet wide. Because of construction and
safety standards, many roads authorized
by NWP 14 are likely to be wider than
15 feet, resulting in greater Impacts to
waters of the United States. We are
proposing to retain the PCN thresholds
waters of the United.Spites and the
construction of access [ror, --, as proposed
in the July 1, 1998, Federal Register
notice.
Two commenters requested that Che
District Engineer, instead of the
prospective permitteejno.tify the
National Ocean Service (NOS) in cases
where the utility line is to be
constructed or installed in navigable
waters of the United States.
We agree that it is more appropriate
for the District Engineer to provide NOS
with a copy of the PCN and NWP
authorization, since the requirement at
33 CFR Part 325:2(a) (9).(111) is to provide
NOS with a copy of the permit for
utility lines in navigable waters of the
United States. We are proposing to add
a note (Note 3) to the end of the text of
NWP 12, reminding the District
Engineer to send copies of the PCN and
the NWP 12 authorization to NOS if the
utility line is constructed In navigable
waters of the United States.
Some commenters stated that the
Corps should not require a delineation •
of special aquatic sites,!including
wetlands, as part of the NWP 12 PCN,
or at least apply that requirement only
to those projects that arp subject to an
acreage limitation. Some commenters
recommended using simpler methods to
delineate special aquatic sites. Other
commenters suggested that the Corps
adopt a procedure requiring Corps
approval of a delineation of special
aquatic sites within a reasonable period
of time. i
We disagree with the jfirst comment in
the previous paragraph because it is
important to identify the limits and
amounts of special aquatic sites that
might be lost as a resultjof the proposed
work to determine if additional on-site
avoidance and minimization is possible
and if the proposejj-project would have .
more than minimal adverse effects on
the aquatic environment. The only
approved method of determining the
extent of wetlands is by the procedures
in the 1987 Corps of Engineers Wetlands
Delineation Manual (Technical Report
Y-87-1). Other special aquatic sites are
identified through other methods. For
activities requiring notification, district
engineers have 45 days from the date of
receipt of a complete PCN to determine
if the proposed work qualifies for NWP
authorization. During the 45-day period,
the District Engineer must determine if
the delineation is accurate. District
engineers cannot consider a PCN
incomplete solely because they have not
verified the delineation of special
aquatic sites. \
Other issues: One commenter
recommended that the Corps add
requirement for cases where a
prospective permittee is working under
a valid NPDES stormwater management
permit.
We disagree, since the NPDES permit
does not satisfy the permit requirements
of Section 404 of the Clean Water Act.
Review by the Discrict Engineer is
necessary to ensure that the authorized
work complies with the terms and
conditions of NWP 12 and results in
minimal adverse effects on the aquatic
environment.
Some commenters objected to
compensatory mitigation requirements
for public utility projects and others
•suggested that mitigation should only be
required to the extent necessary to
ensure that an activity has minimal
adverse effects on the aquatic^
environment. Other commenters
recommended requiring complete or
partial restoration of areas altered by
mechanized landclearing.
Public projects may have more
adverse effects on the aquatic '
environment than private projects since
they may be larger in size. Project
proponents will be required to provide
compensatory mitigation, if necessary,
to ensure that the authorized work
results in minimal adverse effects on the
aquatic environment regardless of •
whether the project is for public or
private purposes. For activities that
require notification, compensatory
mitigation may be required by district
engineers to ensure that the net adverse
effects to the aquatic environment are •
minimal, individually and '
cumulatively. Utility line rightVof-ways'
in waters of the United States can be
cleared for the construction,
maintenance, or repair of utility lines,
but the cleared area must be the
minimum necessary and
preconstruction contours must be
maintained as close as possible.
Wetland vegetation will grow back if the
right-of-way is constructed in wetlands
and preconstruction contours and
elevations are restored after
construction. However, the plant
community may be maintained as
shrubs or herbaceous plants, to prevent
damage to.the utility line and facilitate
repairs. We believe that the conditions
of NWP 12 adequately address
temporary impacts to waters of the
United States and that additional
restoration requirements are not
necessary. .
Some commenters emphasized the
importance of the regional conditioning .
process to address regionally significant
resources such as vernal pools,
headwater springs, prairie podioles,
certain coastal wetlanc'
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39297
Manv commenters made
recommendations for regional
conditions.
We recognize thac the regional
conditioning process is a very important
element in the implementation of the
new and modified NWPs but that
specific recommendations for regional
conditions must be addressed by
division and district engineers.
This NWP is subject to proposed
General Conditions 25, 26, and 27,
which will substantially reduce its
applicability. General Condition 25
prohibits the use of this NWP to
authorize discharges into designated
critical resource waters and wetlands
adjacent to those waters. General
Condition 26 prohibits the use of this
NWP to authorize discharges resulting .
in the loss of greater than 1 acre of
impaired waters, including adjacent
wetlands. NWP 12 activities resulting in
die loss of 1 acre or less of impaired
waters, including adjacent wetlands, are
prohibited unless prospective permittee
demonstrates to die District Engineer
that the activity will not result in furdier
impairment of die waterbody. General
Condition 27 prohibits the use of NWP
12 to authorize permanent, above-grade
wetland fills in waters of the United
States within the 100-year floodplain,
unless die prospective permittee clearly
demonstrates that the project and
associated mitigation will not decrease
die flood-holding capacity and no more
trjan minimally alter the hydrology,
flow regime, or volume of waters
associated with die 100-year floodplain.
In response to a PCN, district
engineers can require special conditions
on a case-by-case basis to ensure dial
the adverse effects on die aquatic
environment are minimal or exercise
discretionary authority to require an
individual permit-for die work. The,
issuance of diis NWP, as with any NWP,
provides for the use of discretionary
authority when valuable or unique
aquatic areas may be affected by these
activities.
14. Linear Transportation Crossings
In die July I, 1998, Federal Register
notice, we proposed several changes to
this NWP. We proposed to modify this
NWP to have a larger acreage limit for
public transportation crossings, such as
roads, railroads, and airport runways, in
non-tidal waters of the United States,
excluding non-tidal wetlands
contiguous to tidal waters. We also
requested comments- on whether die
acreage limit for public transportation
crossings in non-tidal waters should be
1 or 2 acres. For private crossings and
public linear transportation crossings in
tidal waters, or non-tidal wetlands
contiguous to tidal waters, we did not
propose to change the original acreage
limits of NWP 14.
One commenter stated that the NWP
should not authorize public
transportation crossings. A number of
commenters said that die distinction
between public and private
transportation crossings is unnecessary.
Many commenters requested that die
Corps clarify what is meant by private
and public transportation crossings.
Several commenters asked whether
roads to residential developments
would be considered public or private.
NWP 14 previously authorized bodi
public and private road crossings. Due
to public interest factors, we proposed
to increase die acreage limit for public
transportation cross; s for diis NWP,
with acreage limits b^->ed on the types
of waters affected by the work. For the
purposes of diis NWP, a private crossing
is restricted to die use of a particular
person or group, and is not freely
available to die public. An example is
a driveway crossing a stream to provide
access to a single family residence. A
public crossing is a crossing which is
intended to serve all citizens, rather
than a specific limited group. As furdier
clarification, if die responsibility for the
highway or road maintenance and repair
is a county, state, or government entity,
die road will be considered public. To
increase protection of die aquatic
environment, we are proposing to
change die applicable waters for linear
transportation crossings as follows: (1)
Public linear transportation crossings
constructed in non-tidal waters,
excluding non-tidal wedands adjacent
to tidal waters, (2) public linear
transportation crossings constructed in
tidal waters and non-tidal wetlands
adjacent to tidal waters, and (3) private
linear transportation crossings
constructed in all waters of the United
States.
Many commenters requested that
NWP 14 remain unchanged. Several
commenters suggested that the acreage
limit for public projects should be
limited to 1 acre and die length of the
crossing to no more than 200 feet. Odier
commenters stated that the proposed 2
acre limit for public transportation
crossings is too low and would prefer
the original 10 acre limit that NWP 26
had prior to December 1996. Many
commenters said that 2 acres is
sufficient for public highways, which
often have 2 to 4 lanes. Several
commenters stated that public linear
transportation crossings should have no
acreage limit while others said the limit
is too high and that the proposed
modification should be withdrawn.
Anodier commenter recommended
removing the 200 linear foot limit fcr
private crossings and replacing it with
a 500 linear foot limit.
We have carefully considered all
comments on the proposed acreage
limits. The existing limit for private
crossings is retained at lh acre and 200
linear feet. For public projects in non-
tidal waters, excluding non-tidal
wetlands adjacent to tidal waters, we
have decided die proposed I acre limit
for public linear transportation
crossings is appropriate to audiorize .
most public linear transportation
crossings that have minimal adverse
effects on die aquatic environment in
non-tidal waters. It is important to note
that each crossing of a separate
waterbody is a single and complete
project (see 33 CFR ?aff-330.2(i)). The
Vs acre and 200 linear foot limits will
be retained for private linear
transportation crossings and public
linear transportation crossings in tidal
waters and non-tidal wetlands adjacent
to tidal waters. .
Some commenters asked why the
acreage limit for public projects was
higher dian die acreage limit for private
projects. Many objected to the
differences in acreage limits. Several
commenters were concerned diat die
proposed modification establishes
different thresholds based upon whedier
a project is private or public.
During our review of transportation
projects authorized by NWP 26, we
found that there were a substantial _
number of public linear transportation
crossings with minimal adverse effects
on the aquadc environment.
Approximately 90% of die
transportation projects audiorized by
NWP 26 during 1997 resulted in die loss
of less than 1 acre of non-tidal waters.
The proposed modification of NWP 14
is intended to authorize these types of
projects, since NWP 26 will be replaced
by.die proposed new and modified '
NWPs announced in this Federal
Register notice. Public linear
transportation crossings need to be
larger, because they must have larger
capacities. Private crossings, on die
other hand, are typically small. Public
linear transportation crossings also
fulfill a greater proportion of public
interest factors, and the government
entities that typically sponsor or build
diese projects have the resources and
experience necessary to design diese
projects and provide necessary
compensatory mitigation to ensure diat
diese projects have minimal adverse
effects on the aquatic environment.
Consequently, diese projects are less
likely to be contrary to the public
interest Public transportation projects
often require detailed planning
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processes co document, compliance with
NEPA. Section 404 of che Clean Wacer
Act. and many other applicable laws. As
a resulc. we have decided that it is
appropriate to impose a higher acreage
limit for public linear transportation
projects in non-tidal waters, excluding
non-ttdal wetlands adjacent to tidal
waters.
Public roads serve the general public
and allow access for entire
communities. Odier transportation
facilities, such as municipal airport
runways or railroads are constructed for
public transportation needs, and are
considered public if they are accessible
to the public as a whole. Railroad
crossings may be constructed by private
entities, buc may be used by public
transportation agencies for mass transit,
such as commuter rail services. As long
as these transportation facilities are
used by the general public, providing a
means of transportation for an entire
community, diese linear transportation
crossings will be considered public for
the purposes of this NWP.
Jvlany comments were received
regarding PCN thresholds. Several
commenters suggested that notification
should be required for all projects
authorized by this NWP. Some
commenters stated that the proposed
notification requirements were too
stringent and some wetland impacts
should be authorized without any PCN
requirements. These commenters stated
thn? ne PCN requirement should be
consistent with the notification
requirements of NWP 12, and
recommended that notification should, • %
be required if the activity results in the
loss of more than Vh acre of non-tidal
wetlands or the impact exceeds 500
linear feet in waters of die United
States. Another commenter said that the
PCN threshold should be raised to Vz
acre. One commenter stated the
notification requirements for public and
private linear transportation projects
should be the same. Another commenter
wanted to know how-Corps Districts
would identify areas of high value that
could trigger lower PCN thresholds.
To make the PCN thresholds of NWP
14 more consistent with the new NWPs,
the proposed notification threshold has
been modified. The proposed PCN
thresholds for public and private linear
transportation crossings are the same.
Notification will be required for
activities that result in the loss of greater
than 'A acre of waters of the United
States. Notification will also be required'
for all activities that result in a
discharge into special aquatic sites,
including wetlands. We do not agree
that the PCN thresholds of NWP 14 -
thresholds of NWP 12 because the
activities authorized bV these NWPs
have different adverse'gffects on the
aquatic environment. High value waters
will be identified through the regional
conditioning process, division
engineers can-regionally condition this
NWP to lower the PCN threshold or
require notification for [all activities in
specific high value waters.
Numerous commente|rs requested
clarification concerning what
constitutes a single and complete linear
project. Several commenters
recommended that the Corps eliminate
the practice of piecemealing road -
projects so that NWP 14 authorizes each
separate wetland or stream impact along
the construction corridor. Another
commenter suggested that the Corps
consider allowing the use of this NWP
. for multiple crossings provided the "no
net loss" goal is met.
Our NWP regulations [already address
linear projects and what constitutes a
single and complete linear project (see
33 CFR Part 320.2(1)). In1 paragraph (h)
of the proposed modification of this
NWP, we have provided additional
clarification concerning Iwhen
discretionary authority may be
exercised for road segments with
multiple crossings of streams.
Many commenters believe that
airports and runways should not be
authorized by this NWP.1 Several
commenters suggested that the
secondary impacts of.airport runway
'construction, such as chemicals and
pollutants, are a serious Concern.
' Several commenters questioned whether
.railroads are considered public entities.
The construction, improvement, and
. expansion of airport runways can be
audibrized by this proposed
modification of this NWP, provided the
adverse effects on the aquatic
environment are minimal These
facilities are often subject to additional
rigorous regulation by other State and
Federal agencies. Airports will have
existing stormwater and water quality
management plans, and are likely to be
closely regulated with regard to air
quality, noise pollution, point and non-
point source pollution, and hazardous
and toxic substances. Since this NWP
requires a PCN for most projects, district
engineers will have the opportunity to
review the impacts of the proposed
activity. If a project will have more than
minimal adverse effects on the aquatic
environment, the District Engineer will
assert discretionary authority and
require an individual permit Railroads
will typically be considered public
transportation because, as previously
discussed, a railroad may be constructed
often utilized by the general public for
public transportation. As long as these
facilities are generally accessible to the
public, by providing a means of mass
transit or services for a community
railway crossings will be considered
public.
One commenter stated that regional
conditions should prohibit the
disruption of water flows by requiring
culverts, bridges, etc. Another
commenter asked for clarification of the
terms in paragraph (g) of the proposed
NWP 14 modification. Another
commenter requested that applicants
provide detailed engineering
information on the crossings to ensure
that they are designed properly.
'General Condition 21, Management of
• ' Water Flows, requires NWP activities to
be designed and constructed to maintain
preconstruction downstream flow
. conditions, to the maximum extent
practicable. Activities authorized by this
NWP should not result in more than
minor changes to the hydraulic flow of
a stream and should not result in an
increase in flooding upstream or
downstream of the crossing. Proposed
General Condition 27 also applies to
activities authorized by this NWP. To
construct the crossing, some work in die
stream channel is necessary. Examples
include bank stabilization, the
placement of fill and culverts,
depressing the culvert into the stream
bed, etc. All of this work should take
place only in the immediate vicinity of
die crossing. The construction of the
crossing should result in only minor
impacts to the hydraulic characteristics
of die stream. General Condition 9,
Water Quality, requires the permittee to
implement a water quality management-
plan to ensure the work does not cause
more than minimal adverse effects to
the downstream aquatic system. In
general, where a state or tribal entity
requires such a plan, this requirement
will be considered fulfilled. If a. water
quality management plan is not required
by the state, die District Engineer must
decide if one is needed for the proposed
activity. We do not agree that applicants
should be required to provide detailed
engineering information concerning die
crossing. It is incumbent upon the
permittee to ensure diat the crossing is
designed so that it complies with all of.
die conditions of the NWP, especially
General Condition 21.
One commenter questioned why a ' •
mitigation plan was required for public
linear transportation projects but not for
private crossings. Several commenters
asked whedier compensatory mitigation
would be required for all crossings.
We have modified dils provision of
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Federal Register
39299
for borh public and private linear
Transportation crossings. Paragraph (c)
of the proposed modification of NWP 14
requires the prospective permittee to
submit a mitigation proposal to offset
permanent losses of waters of the
United States and a statement
describing how temporary losses will be
minimized to the extent practicable.
Many commenters objected to the
inclusion of attendant features to the
linear transportation project, such as
interchanges, stormwater detention
basins, rail spurs, or water quality
enhancement measures in the NWP.
Many commenters approved the
inclusion of such features, and a couple
of commenters requested that the NWP
audiorize non-linear features such as
vehicle maintenance or storage
buildings, parking lots, train stations,
and hangars.'One commenter said that.
d-iis-NWP should not authorize new
transportation facilities, which typically
result in significant indirect and
cumulative Impacts.
Features integral to the crossing, such
as interchanges, rail spurs, stormwater
detention basins, and water quality
enhancement measures are authorized
by this NWP ."This requirement will
help ensure that the adverse effects of
the entire single and complete project
are considered. The attendant features
must be integral to the crossing,
however, and the combined loss of
waters of the United States for a single
and complete project cannot exceed the
acreage limit of this NWP. We are not
proposing to modify NWP 14 to
authorize non-linear transportation
activities, because these activities have
greater potential to result in more than
minimal adverse effects on the aquatic
environment. ' . •
The proposed modification of this
NWP can authorize the construction of
new linear transportation crossings,
provided the proposed work'results in
minimal adverse effects on the aquatic
environment. The notification
requirements, the District Engineer's
ability to impose special conditions on
a particular activity, and the District
• Engineer's ability to exercise
discretionary authority and require an
individual permit will ensure that the
activities authorized by this NWP result
in minimal adverse effects on the
aquatic environment.
Several commenters recommended
adding conditions that appear to apply
to specific regions. One commenter
requested that: this NWP should be
prohibited in watersheds with
substantial aquatic resource losses and
in watersheds which have impervious
surfaces over a substantial percentage of
the landscape; the acreage limits be
modified to protect regionally
significant resources:, linear foot
limirations should be imposed on
activities in streams with regionally
important resources; kick-out provisions
should be provided for Federal agencies:
and compensatory mitigation should be
required to fully offset all impacts to
ensure no net loss of aquatic resources.
Another commenter requested diat this
NWP: prohibit activities below the
existing water level of the stream, limit
work affecting water quality between
March 15 and June 15, prohibit the use
, of stream bed material for erosion
control, limit the use of rip rap, limit
clearing of forested stream corridors to
the minimum necessary, require
revegetation of disturbed areas to reduce
erostotr,-' require culverts for temporary
rock stream crossings higher than 18
inches, maintain stream bed gradient
during construction, and size and place
culverts to avoid creating a drop
between die downstream end of die
culvert and die downstream water
surface elevation.
All of the recommendations cited in
the previous paragraph are best
addressed as regional conditions and
• case-specific special conditions for an
NWP authorization.
A couple of commenters requested
that this NWP audiorize some stream
channelization. Several commenters
requested that diis NWP prohibit stream
channelization.
• Paragraph (f) of the proposed
modification of NWP 14 states that this
NWP cannot be used to channelize a
stream, but some channel modification
in the immediate vicinity of the crossing
can be conducted to ensure that water
flow through the crossing does not
result in additional flooding, erosion, or
odier adverse impacts that may
compromise public safety.
One commenter was confused about
the manner in which the authorized
activities and applicable waters were
described. We have clarified this
section, with the acreage limits for each
category of activities and applicable
waters.
this NWP Is subject to proposed
General Conditions 25, 26, and 27,
which will substantially reduce its
applicability. General Condition 25
prohibits the use of this NWP to
audiorize discharges into designated
critical resource waters and wedands
adjacent to diose waters. Due to the
requirements of General Condition 26,
NWP 14 activities resulting in the loss
of impaired waters, including adjacent
wetlands, are prohibited unless
prospective permittee demonstrates to
the District Engineer dial the activity
will not result in further impairment of
•the waterbody. General Condition 27
prohibits the use of NWP 14 to
authorize permanent, above-grade
wetland fills in waters of the United
.States within the 100-year floodplain,
unless the prospective permittee clearlv
demonstrates that the project and
associated mitigation will not decrease
the flood-holding capacity and no more
than minimally alter the hydrology.
now regime, or volume of waters
associated with the 100-year floodplain
In response to a PCN. district
engineers can require special conditions
on a case-by-case basis to ensure that
the adverse effects on the aquatic '
environment are minimal or exercise
discretionary audiority to require an
individual permit for the work. The
issuance of diis NWP, as with any NWP,
provides for the use of discretionary
audiority when valuable or unique
aquatic areas may be affected by these
activities.
27. Stream and Wetland Restoration
Activities
In the July 1, 1998, Federal' Register
notice, we proposed to modify NWP 27
to audiorize the restoration of non-
Section 10 streams, in addition to the
wedand and riparian restoration and
enhancement activities already
authorized by diis NWP.
Some commenters supported die
proposed modifications. Other
commenters said diat no restrictions
should-be placed on the NWP. Several
commenters stated that die NWP meets .
the criteria for minimal effects. One
commenter supported modification of
NWP. 27 to audiorize activities on
private property. Several commenters
opposed the proposed modifications to
NWP 27 because they believe that
wedands and streams would be
adversely affected by die proposed
changes.
The purpose of the proposed
modification of NWP 27 is to audiorize
the restoration of non-tidal streams.
NWP 27 previously authorized only die
restoration former non-tidal wetlands
and riparian areas, the enhancement of
degraded wedands and riparian areas,
and die creation of wetlands and
riparian areas. We are also proposing to
modify NWP 27 to authorize die
restoration of tidal waters. Currently,
NWP 27 only authorizes.die restoration
of non-tidal wetlands and riparian areas.
The enhancement of'degraded wetlands
and riparian areas and the creation of
wedands and riparian areas is
audiorized in all waters of the United
States, including tidal waters. We
believe, diat by-adding stream and tidal
wedand restoration activities to this
NWP, that the overall aquatic
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39300
in Jm i WI" benefk b-v P™vt
•in eificienc means of authorizing che
restoration and enhancement of these
areas.
One commeriter recommended
eliminating wetland restoration
activities from this NWP and limiting it
only to enhancement activities. This
commenter believes that restoration
activities do not require a Section 404
permit because the project area is not
currently a wetland. Another
commenter asked if NWP 27 applies to
the restoration of riparian zones outside
or wetlands and Other waters of the
United States.
Many wetland restoration activities
require a Section 404 permit because
there are discharges into waters of the
United States that are necessary to
conduct the restoration activity, such as
connecting the restored wetland to other
waters of the United States. The same
principle applies to wetland creation
activities. NWP 27 authorizes the
restoration of riparian zones that are
waters of the United States (e.g
wetlands adjacent to a stream) and
activities In waters of the United States
associated with the restoration of
upland riparian zones. For example, to
establ ish a vegetated upland riparian
zone, some bank stabilization activities
in waters of the United States may be
necessary, such as'the planting of
willows along the bank. If the proposed-
riparian zone restoration activity is
conducted entirely outside of waters of
the United States, then no Corps permit
is required. -
One commenter requested the
inclusion of more examples of stream
restoration and enhancement activities
such as the addition of spawning gravel
and the removal of accumulated
sediment from ponds to prevent
sediments from being washed
downstream. Another commenter stated
that the list of examples of authorized
activities in the NWP is too inclusive
and vague. Other commenters expressed
concern that activities not directly
related to the restoration of ecological
values or aquatic functions could be
authorized by this NWP. Several
commenters recommended excluding
the placement rip rap from NWP 27 and
that the appropriate use of biological
materials should be encouraged
The list of activities in the paragraph
following paragraph (c) of the proposed
modification of NWP 27 is Intended
only to provide examples and is not a
S?imEnxmI!£°f acclvitles authorized by
this NWP. The next paragraph in NWP
hi Sf 'ImM^ ^ are not authorized
by the NWP. If the prospective
permittee has questions about a
particular stream and wetland
Federal Register: Vol 64 \V> no/h; _i ^
=- ' J39/Wednesday. July 21. 1999/Notices
restoration or enhancement activity
then he or she should contact the
District Engineer to determine if the
proposed work can be1 authorized by
NWP 27. For those projects requiring
notification, the District Engineer will
determine if the proposed work satisfies
tne terms and conditions of NWP 27 and
will exercise discretionary authority if
me proposed work will result in more
than minimal adverse effects on the
aquatic environment. Division engineers
can also regionally condition this NWP
to exclude certain activities or prohibit
its use in specific watetbodies or
geographic regions. We do not agree that
the use of rip rap should be excluded
from this NWP. because rip rap provides
habitat for many aquatic organisms and
can help reduce adversb effects to water
quality resulting from soil erosion on
the project site.
A number of commenters were
confused about the scope of this NWP
and asked which types of waters are
subject to this NWP. Several
commenters recommenaed expanding
the applicable waters fdp this NWP to
include Section 10 waters. Other
commenters suggested excluding tidal
wetlands from this NWP. One
commenter stated that the NWP should
be used only in small lengths of streams
or small wetland areas.
We have modified thel first paragraph
°\'«f Proposed modification of this
NWP to clarify the scope' of applicable
waters for this NWP. Since te issuance
in 1991, NWP 27 has authorized
wetland and riparian restoration
enhancement, and creation activities in.
Section 10 waters, although certain
activities were restricted !to non-tidal
Section 10 waters. This NWP authorizes
activities that restore former waters
including tidal and non-tidal wetlands
enhance degraded tidal and non-tidal '
wetlands and riparian areas, create tidal
and non-tidal wetlands and riparian
areas, and restore and enhance non-tidal
Ni£fmms and non-tidal open waters. This
NWP can be used to restore and
enhance Section 10 streams and open
waters, as long as they are non-tidal.
Other Section 10 activities authorized
by this NWP include the restoration of
former non-tidal wetlands in Section 10
waters, the enhancement of degraded
wetlands in navigable waters, and the
creation of wetlands in nayigable
waters. . i
. Restricting the use of this NWP to
small segments of streams and small
wetlands is unnecessary because this
NWP authorizes only those activities
that improve the aquatic environment
Adding such a restriction is also likely
to discourage larger stream and wetland
restoration and enhance—--" - • - •
rhrV" h"°' prosPective Permittees to go
through a more complicated and.
expensive permit process.
Many commenters recommended
conditioning this NWP to prohibit
conversion and alteration of habitat.
ne ot tnese commenters rerommpn/Ho^
prohibiting the conversion of o^ *
aquatic habitat type to another tvoe
unless the intent of the conversion is to'
e that historically existed on that
site One commenter recommended
. including a provision in the NWP to
allow the construction of small
.impoundments in ephemeral and/or
intermittent reaches of streams to
benefk water quality and waterfowl '
MWD proup°sed Codification of this
NWP prohibits the conversion of natural
streams or wetlands to another aquatic
use. unless the permittee recreates
similar aquatic habitat types in a
different location on the project site and
the project results in aquatic resource
functional gains. However, only non-
tidal waters can be converted to other
types of aquatic habitat. We are
proposing to modify the text of the NWP
to specify that any relocated non-tidal
aquatic habitat type must be created on
the project site, so that the relocation is
not limited to creating the aquatic
habitat type in adjacent uplands. We .
have added a prohibition against
converting tidal waters, including tidal
wetlands, to other aquatic uses or
relocating tidal waters. We do not
believe that is necessary to limit the
conversion to aquatic habitat types that '
historically exis'ted on the project site,
because the permittee may want to
conduct activities that provide more
benefits to the aquatic environment than
the historic aquatic habitat type
provided. This NWP can authorize
small impoundments in ephemeral and/
or intermittent streams, provided those
aquatic habitat types are recreated on ,
the project site, the adverse effects on
the aquatic environment are minimal,
and there are net functional gains.
Several commenters expressed
concern with the use of this NWP with
other permits. Other commenters were
uncertain as to whether General
Condition 15 applies to NWP 27.
NI,N,WP 27 may be used with other "
NWPs to authorize a single and
complete project, provided the"
authorized work results in minimal
adverse effects oh the aquatic
environment, individually or
cumulatively. For example, NWP 33
may be used to provide temporary
access to the construction site for
activities authorized by NWP 27 The
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Federal Register
Condition 15 ncciies to NWP ?7 ancj a[|
other N'.VPs.
'A'e have nlso been made aware of
situations where participants in wetland
restoration programs, such as the U.S.
Department of Agriculture's Wetlands
Reserve Program, want to revert their
land back to its prior condition. If the
land was prior converted cropland
before the implementation of the
wetland restoration activity, and no
associated discharge of dredged or fill
material into waters of the United States
' was required to conduct the wetland
restoration activity, the landowner did
not require a Section 404 permit. If the
landowner wants to revert the land back
to its prior condition, he or she could
not utilize the reversion provision of
NWP 27, because NWP 27 was not
needed to restore wetlands on the prior
converted wetland. To address this
issue, we are proposing to add a .
provision to NWP 27 that allows the
landowner to revert the land back to its
prior condition using NWP 27, even
though no Section 404 permit was
needed to conduct the wetland
restoration activity, provided the prior-
converted cropland has not been
abandoned. We believe this provision is
necessary to provide equity for
landowners! This-provision may
encourage more landowners to restore
wetlands on prior converted cropland
- because they will not have to apply for
an individual permit at a later date to
revert the .land back to its prior
condition.
Several commenters stated that
notification to the resource agencies .
should be required for all activities
authorized by this NWP. One
commenter recommended requiring
agency coordination for all.activities
authorized under part (iv) of this NWP.
This commenter also recommended that
project proponents for stream.
restoration activities should be¥equired
to coordinate with the Corps arm
Federal and State fish and wildlife
agencies prior to submitting a PCN
under part (iv). Many commenters
suggested PCN thresholds, ranging from
l/io acre to 1 acre. One commenter stated
that downstream landowners should be
notified of proposed stream restoration
projects.
To clarify the notification
requirements of this NWP, we are
proposing to restructure NWP 27 to
make it easier to understand which •
activities require notification to the
District Engineer. Notification is not
required for: (1) activities on public or
private land where the landowner has
an agreement with the FWS or NRCS,
(2) activities on Federal land, or (3)
activities on reclaimed surface coal
mined land in accordance with a
Surface Mining Control and
Reclamation Act permit issued by the
Office of Surface Mining or the
applicable state agency. Notification is
also required if a permittee wants to use
- NWP 27 to authorize the construction of
a compensatory mitigation site,(see the
Note at the end of NWP 27). We disagree
that agency coordination should be
conducted for all activities authorized
by this NWP, because this NWP
authorizes activities that benefit the
aquatic environment. Corps district
personnel possess the knowledge and
experience to assess the environmental
effects, both beneficial and adverse, of
those activities requiring notification. If
the proposed work will result in more
than minimal adverse effects on the
aquatic environment, the District
Engineer will exercise discretionary
authority and require an individual
permit. Requiring project proponents to
coordinate with the Corps and fish and
wildlife agencies prior to submitting a
• PCN is unlikely to provide any benefits
for the aquatic environment, and will
serve only to discourage stream
restoration projects because the
authorization process will become too
burdensome for many landowners. For
many of the reasons cited above, we do
not believe it is necessary to place a
PCN threshold based on acreage on this
'NWP, or to notify downstream
landowners of proposed stream
restoration projects. • • ." -
Several commenters stated that the
NWP is- too vague and is vulnerable to
abuse. A number of commenters
requested the inclusion of narrow
definitions of authorized activities in
the' NWP. Two commenters asked how
the Corps will assess functional gains.
One commenter stated that NWP 27
should authorize only ecological-based
stream restoration. One commenter
asked if NWP 27 was intended to apply
to the compensatory mitigation
requirements of other Corps permits.
Another commenter recommended that
the NWP require the planting of native
species at the site.
No activities or discharges not
directly related to the restoration of
ecological values or aquatic functions
are authorized by this NWP. This NWP
can be used to authorize wetland and
stream restoration activities required by
other Corps permits. The intent of the
proposed modification of this permit is
to facilitate the restoration of degraded
or altered streams and wetlands. The
goals of the proposed activities must be
based upon the enhancement,
restoration, or creation of the ecological
conditions that existed, or may have
existed. In the stream or wetland prior
ro disturbance, or to otherwise improve
'he aquatic functions and values of such
•ireas. The activities may include, but
are not limited to, the modification of
the hydrology, vegetation, or physical
structure of the altered or degraded
stream or wetland. If additional
protection is necessary, division
f^-g1^^ Can add reSional conditions to
this NWP. We have added a provision
to the proposed modification of NWP ?7
that requires the permittee to utilize
native plant species if he or she is
vegetating the project site. We are
limiting this requirement to plant
species installed by the permittee,
because non-native plant species may
naturally colonize the project site and
we cannot require the permittee to
remove those plants.
Some commenters recommended
requiring binding agreements for
activities authorized by this NWP. One
commenter stated that management
plans were needed in all cases. One
commenter recommended requiring
detailed restoration plans. One
commenter recommended prohibiting
future fills in areas that have reverted to
prior condition under parts-(ii) and (iii)."
Another-commenter stated that wetland
and stream restoration and
enhancement activities by State
resource management agencies should
be included in NWP.
We do -not believe that binding
agreements or detailed restoration plans
are necessary in all cases. Where the
NWP authorizes reversion of the created
or restored wetlands to its non-wetland
state (i.e.. in those cases involving
private parties entering into contracts or
agreements with, or documentation of
prior condition by, the NRCS or FWS
. under special wetland programs or an
Office of Surface Mining (OSM) or
applicable state program permit), then a
binding agreement, documentation, or
permit by NRCS, FWS, or OSM or
applicable state agency which clearly
documents the prior condition is
required. This reversion can only occur
when these instruments clearly
document the prior condition. In all
other cases where the reversion
opportunity is not included, a Corps
permit would be required for alteration
of the site. Therefore, no binding
agreement, detailed restoration plan, or
documentation of the prior conditions
will be required. Because the permit is,
limited to restoration, enhancement,
and creation activities and because
authorizations for those projects do not
provide the opportunity for reversion,
except as noted above, without a permit
from the Corps, we believe that a
management plan would be
unnecessarily burdensome without
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Federal Register/Vol. 64. No. 139/Wednesday. July 21. 1999/Notices
iddicional environmental benefits.
Activities by State natural resource
management agencies are already
Authorized by this NWP. but may '
require notification to the Corps unless
?hose activities are in the categories
described by paragraphs (a)(l). (a) (2), or
One commenter stated that evaluation
of upstream and downstream impacts
should be conducted. Another
commenter stated that NWP 27 should
not authorize activities that impede fish
passage. A couple of commenters
requested that the NWP should not be
allowed in exceptional use waters and
wild and scenic rivers.
All activities authorized by this NWP
must comply with General Condition
21. Management of Water Flows.
Compliance with this condition will
ensure that the authorized activity
results in minimal adverse effects on
hydrology upstream and downstream of
the project site. Similarly, all activities
authorized by this NWP must comply
with General Condition 4, Aquatic Life
Movements, to ensure that the
authorized work results in no more than
minimal adverse effects on aquatic life
movements. The requirement to comply
with General Condition 7 will ensure
the proper coordination to prevent
adverse impacts to Federally-designated
wild and scenic rivers. In addition,
districts have coordinated with Federal
and State natural resource agencies to
discuss appropriate regional
conditioning for the NWPs. Proposed
General Condition 25 requires
notification to the District Engineer if "
the proposed activity will occur in
NOAA-designated marine sanctuaries,
National Estuarine Research Reserves,
National Wild and Scenic Rivers,
critical habitat for Federally-listed
threatened or endangered species, coral
reefs, State natural heritage sites, and
outstanding national resource waters or
other waters officially designated by a
State. Restricting the use of NWP 27 In
exceptional use waters will also be
considered at the district level.
This NWP Is subject to the
requirements of proposed General
Conditions 25 and 26. General
Condition 25 requires the prospective
permittee to notify the District Engineer
In accordance with General Condition
13 for activities in designated critical
resource waters, including wetlands
adjacent to those waters. The District
Engineer may authorize NWP 27
activities In these waters if the adverse
effects are no more than minimal.
General Condition 26 prohibits the use
of this NWP to authorize discharges
resulting In the loss of greater than I
adjacent wetlands. NWP 27 activities
resulting in the loss of 1 acre or less of
impaired waters, including adjacent
wetlands, are prohibiteiri unless
prospective permittee demonstrates to
the District Engineer that the activity
will not result in further impairment of
the waterbody. '
In the proposed modification of NWP
27. we are proposing to (add a note to the
NWP to clarify the compensatory
mitigation is not required for activities
authorized by this NWP, provided the
work results in a net increase in aquatic
resource functions and values in the
area. The note also states that NWP 27
can be used to authorize compensatory
mitigation projects, including mitigation
banks, as long as the project includes
compensatory mitigation for any losses
of waters of the United States that may
occur as a result of constructing the
compensatory mitigation project. The
proposed note also states that NWP 27-
does not authorize reversion of sites
used as compensatory mitigation
projects to prior conditions.
In response to a PCN, (district
engineers can require special conditions
on a case-by-case basis to ensure that
the adverse effects on thfe aquatic
environment are minimal or exercise
discretionary authority to require an
individual permit for the work. The
issuance of this NWP, as|with any NWP.
provides for the use of discretionary
authority when valuable!or unique
aquatic areas may be affected by these
activities. ;
39. Residential, Commercial, and
Institutional Developments
This NWP was proposed as NWP A in
the July 1, 1998, Federal Register
notice. NWP 26 has been used
extensively to authorize discharges of
dredged or fill material into waters of
the United States for residential,
commercial, industrial, and institutional
development activities. Based on the
comments received in response to the
July 1, 1998, Federal Register notice, we
have made changes to the proposed
NWP, which are discussed in further
detail below. We^are proposing to.use an
index to determjn^the acreage limit for
this NWP. The index will be based on
a percentage of the project area, with a
>A acre base limit. The maximum
acreage loss that can be authorized by
this NW.P is 3 acres. We are also
proposing to restrict the list of activities
authorized by this NWP to building
pads, building foundations, and
attendant features for residential,
commercial, and institutional
development activities. We have
reduced the PCN threshold from '/3 acre
i/
all activities that involve discharges of
dredged or fill material into open
waters. We believe that these changes
will ensure that this NWP authorizes
only those development activities that '
are similar in nature and have minimal
adverse effects on the aquatic
environment, individually or
cumulatively. In addition, to further
ensure that the NWP authorizes
activities with only minimal adverse
effects on the aquatic environment,
most, if not all, Corps districts will
impose regional conditions on this
NWP.
General: Nearly 350 comments were
received that specifically addressed this
NWP. Many cc-T-rnenters opposed the
issuance of th^ ' I'.VP, but a few favored
its issuance. Many of the commenters
who objected to the issuance of this
NWP believe that it authorizes activities
with more than minimal impacts,
resulting in excessive cumulative
adverse effects on the aquatic
environment. Several commenters
stated that the types of activities
authorized by this NWP should be
subject to the individual permit process
and public comment. Another
commenter stated that this NWP is
essentially the same as NWP 26, with an
expanded scope of waters where it can
be used. .
NWPs can only authorize activities
that have minimal adverse effects on the
aquatic environment, individually or
cumulatively. We have established PCN
thresholds to allow district engineers to
review all activities authorized by this
NWP that could potentially result in
more than minimal adverse effects on
the aquatic environment. We believe
that, in most cases, residential,
commercial, and institutional
development activities that result in the
loss of less than "A acre of wetlands
have minimal adverse effects on the
aquatic environment. In watersheds or
waterbodies where losses of less than 'A
acre of waters of the United States may
result in more than minimal adverse
effects, division engineers can
regionally condition this NWP to lower
the notification threshold or require
notification for all activities. This NWP
can also be revoked by division
engineers in those watersheds or "
geographic regions where use of the
NWP will cause more than minimal
cumulative adverse effects on the •
aquatic environment. By restricting the
proposed NWP to the construction of
building pads, building foundations,
and attendant features, we are limiting
die use of this NWP to the development
activity, which is much narrower than
the scope of activities that could be
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Federal Register
54, No. 139/Wednesday, July 21. 1999 / Notices
39303
T'^pes of Waters Affected: Several
commenters objected to this NWP
because it authorizes residential;
commercial, and institutional
development activities in all non-tidal
waters of the United States, excluding
non-tidal wetlands contiguous to tidal
waters. They believe that the scope of
applicable waters for this NWP will
increase wetland destruction. In
contrast, two commenters stated uhat
rhis NWP should be applicable in all
non-tidal waters, including non-tidal
wetlands contiguous to tidal waters.
Anodier commenter recommended that
wetlands and waters adjacent to tidal
waters should be excluded from the use
of this NWP as are contiguous wetlands.
Two commenters stated that this NWP
should authorize only activities in
isolated wetlands less than 1 acre in
size.
To increase protection of the aquatic •
environment, we are proposing to
change the applicable waters of this
NWP to: non-tidal waters, excluding
non-tidal wetlands adjacent to tidal
waters. This change in applicable waters
will reduce the geographic extent in
which NWP'39 can be used. High value
isolated waters can receive additional
protection through regional conditions
to restrict or prohibit the use of this
NWP in diose waters.
Another commenter stated that the .
expansion of applicable waters from
headwaters and isolated wetlands will
result in degradation of water quality by
destroying wetlands which trap
sediments and take up pollutants. This
commenter also stated that the NWP
does not specify stormwater
management requirements needed to
prevent water quality degradation.
We are proposing to modify General
Condition 9, Water Quality, to require-a
water quality management plan for
activities authorized by this NWP. The
purpose of the water quality •
management plan is to ensure that the
activities authorized by this NWP result
in only minimal degradation of
downstream water quality. The
permittee must utilize stormwater
management techniques and vegetated
buffers to ensure that the project
complies with this condition and does
not result in substantial degradation of
downstream water quality. The
requirements of proposed General
Condition 26 will also prevent further
degradation of impaired waters by
limiting the use of this NWP to
authorize discharges in impaired
waterbodies and adjacent wetlands.
Types of Activities Authorized: Many
commenters stated that this NWP does
not comply with Section 404(e) of the
Clean Water Act, which requires
activities authorized by general permits
to be "sim'ilar in nature." They believe
that this NWP authorizes a wide variety
of activities and does not comply with
this requirement. One commenter
recommended that the Corps develop a
more limited list of activities authorized
by diis NWP. Another commenter
suggested that a separate NWP should
be developed for each category of
activities. Several other commenters
objected to this NWP because they
believe that it authorizes activities that
are not water dependent and that these
activities should not be authorized in
wetlands. One commenter suggested
that the NWP should auuhorize only the
construction of buildings and attendant
features and should not audiodze ball
fields and golf courses.
In response to these comments, we
have restricted the list of activities
authorized by the proposed NWP to
building pads, foundations, and
attendant features constructed for
residential, commercial, and
institutional purposes. A structure must
be built on the building pad or
foundation to quality for authorization
under this NWP. Attendant features, as
defined for the purposes of this NWP,
are those features necessary for the use,
operation, and maintenance of the
residential, commercial, or institutional
building. District engineers will
determine whether or not a particular
attendant feature can be authorized by
this NWP. Attendant features can
include, but are not limited to: roads
constructed within the development
project area, parking lots, storage
buildings, garages, physical plant,
sidewalks, stormwater management
facilities, utilities, lawns and
landscaped features, and recreational
facilities such as playgrounds for
schools and day care centers. We do not
believe that it is necessary to develop a
separate NWP for each category of
activity because limiting the proposed
NWP to building pads and attendant
features necessary for the operation and
use of those buildings complies with the
similar in nature requirement of Section
404 (e) of the Clean Water Act. The
purpose of the building and attendant
features (i.e., whether it is for
residential, commercial, industrial, or
institutional purposes) is usually
irrelevant in terms of adverse effects on
the aquatic environment. The
construction of a building pad or
foundation for a residential,
commercial, or institutional building
has the same effects on aquatic habitat
because it replaces an aquatic area with
a building. Issuing a separate NWP for
each type of development activity
would also result in a much mere
complex NWP program with a
substantially larger number of N'WPs.
Authorization of the necessary attendant
features with the building pad or
foundation will help ensure that the
NWP authorizes all activities associated
with a single and complete project and
avoid piecemealing of projects-. In
addition, by audiorizing the entire
development project with one NWP, we
will be better able to assess the adverse
effects of the entire development oh the
aquatic environment.
Residential developments include
single and multiple unit developments.
A residential subdivision may be
authorized by this'NWP as a single and
complete project. This NWP also
authorizes the construction of apartment
complexes. Developers and speculative
builders can use this NWP to construct
single family residences. We have
removed the language from the
proposed NWP A published in the July
1, 1998, Federal Register notice that
prohibited the use of this NWP to
authorize the construction of a single
family residence and attendant features
for personal residence for the permittee.
Although this change results in some
overlap between this NWP and NWP 29
because they both can authorize single
family residences, we believe-that this
overlap does not result in less
protection of the aquatic environment.
The construction of a single family
residence, whether it is constructed by
'the property owner who will live in the
residence or by a contractor or,
speculative builder who will later sell
die completed residence, has the same
adverse effects on the aquatic
environment. Although NWP 39 may
have a higher indexed acreage limit tiian
NWP 29, the geographic scope of
applicable waters for NWP 39 is much
less than the scope of applicable waters
for NWP 29. NWP 39 cannot be used to
authorize discharges into non-tidal
wetlands adjacent to tidal waters, but
NWP 29 can authorize discharges in
those non-tidal wetlands. NWP 39 has a
more stringent avoidance and
minimization requirement than NWP 29
because it requires the permittee
explain, in the notification submitted to
the District Engineer, how avoidance
and minimization was achieved on the
project site. District engineers will
receive PCNs for activities that result in
the loss of greater than 1/4 acre of
waters of the United States or involve
discharges into open waters, such as
streams. Based on the review of the
PCN, the District Engineer will
determine if the proposed work results
in minimal adverse effects on the
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^Federal Register/Vol. 64. No. 139/Wednesday. July 21, I999^otlces
.iq'J.iric environment and qualifies for
nuthonzation under NWP 39. We also
oelieve that prohibiting the use of NWP
33 to authorize the construction of a
single family home for the property
owner, but allowing a contractor or
speculative builder to use NWP 39 to
construct a single family residence, is
jnfair to the - ;ulated public because it
places differc.-.t restrictions based solelv
on who the applicant is (i.e.. whether '
the applicant will be the resident of the
home or if the applicant is a contractor
or a speculative builder will sell the
completed home at a later time to a
future occupant). Such inequities are
likely to lead to selective use of these
two NWPs. A property owner can ask a
contractor to apply for NWP 39
authorization for a higher acreage limit.
instead of applying for an NWP 29
authorization. Since NWPs can
authorize only those activities that
result In more than minimal adverse
effects on the aquatic environment,
individually or cumulatively, we
believe this overlap between NWPs 29
and 39 is not contrary to Section 404fe)
of the Clean Water Act.
K ^Tnim31 devel°pments authorized
by this NWP include, but are not limited
to. retail and wholesale stores, shopping
centers, industrial facilities, malls
restaurants, hotels, business parks, and
other buildings for the production
distribution, and selling of goods and
services, as well as attendant features
for those buildings. Institutional
developments include, but are not
limited to. schools, police stations- fire
stations, government office buildings,
libraries, courthouses, public works
buildings, college or university
buildings, hospitals, and places of
worship. This NWP does not authorize
the construction of new ski areas or the
installation of oil or gas wells.
t One commenter stated that the term
MMID sAtructure" is Poorly defined in the
i\iwp. Another commenter suggested
r\rr^&fv*t ix*»> <>*» _t_ .1 t • oo
project area (e.g., the subdivision).
Roads leading to the project area
including those roads constructed by:
State or local governments, may be
authorized by NWP l k another NWP
regional general permit, or individual'
permit. These roads topically serve
other areas and may be considered as
separate single and complete projects
The proposed NWP;does not
- ...v* *-««***iit*iLci oUKR"5tSQ
that Infrastructure should be authorized
by a separate NWP. Three commenters
recommended that this NWP authorize
the roads constructed by State or local
governments to the development, not
just the roads within the development
\ii«or f PurP°ses of ^e proposed
NWP. infrastructure Includes attendant
features necessary for the operation of
the residential, commercial, or
Institutional development or building
such as utilities, roads, and stormwater
management facilities. Utilities that are '
not an Integral part of the development
but are shared with other developments
may "^authorized fay other NWPs, such'
as NWP 12. regional general permits, or
Individual permits. The proposed NWP
i— I — — —• *•«»»* |. \_AUCO i IUL
authorize discharges of dredged or fill
material into waters of the United States
tor the construction or expansion of golf
courses unless the golf course is an
integral part of a residential subdivision
However, this NWP may be used to
authorize the clubhouse, storage
buildings, or garage for a golf course. A
golf course that is not an integral part of
a residential subdivision may be
authorized by proposed NWP 42
Recreational Facilities, provfded'the golf
course is designed and constructed in a
I2an?3Lthat comPlies V?lth the terms of
that NWP. Golf courses as primary
projects are not authorised by this NWP
because they do not require building
pads or foundations to fulfill their
primary purpose. Rather, the clubhouse
storage building, or garage is an
attendant feature of the igolf course not
vice versa. Golf courses! can also be
authorized by other NWPs, regional
general permits, or individual permits
One commenter requested that the
Corps develop a separate NWP for
shopping centers because shopping
centers differ from residential,
commercial, and institutional
developments. Another pommenter
stated that institutional facilities should
include reuse plants, wastewater
treatment facilities, and water treatment
plants. One commenter stated that
community recreation activities should
not be authorized by this NWP.
We do not believe it is,necessary to
issue a separate NWP for' shopping
centers because shopping centers are a
specific type of commercial
development. The adverse effects on the
aquatic environment resulting from the
construction and use of shopping
centers are similar to the|impacts of
other types of commercial
developments. Reuse plants, wastewater
treatment facilities, and water treatment
plants may be authorized by this NWP
at the discretion of the District Engineer.
We cannot list every type'of residential.
commercial, or institutional
development that is authorized by the
proposed NWP because such a list
would be impractical and' unnecessarily
restrict the use of this NWP for other
development activities that have
minimal adverse effects on the aquatic
environment. For those discharges that
will determine if the proposed activity
qualifies for authorization under this
NWP. For discharges that do not require
notification, a permittee can contact the
appropriate Corps district office to
determine if his or her development
activity is eligible for this NWP
A commenter requested that the NWP
explicitly authorize all commercial and
conw h*8 aCtiVitieS because Ats NWP
could be interpreted as not authorizing
general industry construction This
commenter stated that there is no
difference between commercial
deve opments and general industrial
developments. Another commenter
requested clarification as to whether the
srm institutional developments"
Deludes government facilities.
We agree with these commenters and
MWpSiated in the text of the P^Posed
NWP that industrial facilities and
government office building pads,
foundations, and attendant features may
be authorized by this NWP:
We do not agree that community
recreation activities should not be
authorized by this NWP, because NWP'
39 authorizes attendant features
associated with a residential, -
commercial, or institutional
development. These attendant features
may include playgrounds and playing
fields, provided those facilities are -
constructed in conjunction with a
residential subdivision or school
building. Excluding these features
would be contrary to the purpose of the
proposed NWP, which is to authorize all
necessary attendant features associated
with the buildings as part of a single
and complete project. This NWP does
not authorize discharges of dredged or
fill material into waters of the United
States for the construction of
recreational facilitles;unless those :
recreational facilities-are attendant
features for residential, commercial or
institutional buildings. However, the
building need not be constructed in
waters of the United States for the ' '
attendant features to be authorized by
NWP 39. Recreational facilities not
constructed with residential,
commercial, or institutional buildings
may be authorized by proposed NWP
42, other NWPs, regional general
permits, or individual permits.
Several commenters stated that
rechannelization of streams should not
be authorized by this NWP. One
commenter said that stream
rechannelization would not comply
with the proposed modifications to
General Conditions 21 and 9 because
rechannelization causes more than
minor changes in flow characteristics
3TlH f*Al 11/"I m «»**«•• <.-«L.1. . _l -. i _ L. _ ._
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39305
•he list of authorized activities should
;r.c!ude drainage facilities, culverts, and
divur.nge ditches.
To address concerns regarding stream
channelization associated with
residential, commercial, and
institutional development projects, we
have added paragraph (j) to proposed
NWP 39. Paragraph (j) prohibits the
channelization or relocation of stream
beds downstream of the point on the
stream where the average annual flow is
1 cubic foot per second. Therefore, only
small streams can be channelized or
relocated by this NWP. We believe that
this restriction will help ensure that
residential, commercial, and
institutional development activities will
result in minimal adverse effects on the
aquatic environment. It should-also be
.noted that notification is required for all
discharges resulting in the loss of open
waters, which allows district engineers
to review all proposed activities in
streams and other open waters. Division
engineers can also regionally condition
this NWP to prohibit the channelization
or relocation of high value streams with
average annual flows of 1 cubic foot per
second or less. Channelization or
relocation of stream segments with
average annual discharges of greater
than 1 cubic foot per second may be
authorized by regional general permits
or individual permits. The construction
or maintenance of drainage facilities,
culverts, and drainage ditches may- be
authorized by this NWP only if they are
attendant features necessary for the
residential, commercial, or institutional
building. Drainage facilities and ditches
may be part of a stormwater
management facility or road. Culverts
may be used to construct road crossings
in the residential, commercial, or
institutional development.
Acreage Limit: In the July 1, 1998,
Federal Register notice, we requested
comments on whether a simple acreage
limit should be used for this NWP or •
whether the acreage limit should be
indexed or based on a sliding scale. We
proposed options for a simple limit of
3 acres and an indexed acreage limit
based on parcel size. Many commenters
said that a simple acreage limit should
be used instead of indexing or a sliding
scale. A few commenters stated that the
3 acre limit is adequate. Many
commenters believe that die proposed
acreage limit is too high. A number of
commenters recommended an acreage
limit of 1 acre. Other commenters
proposed limits of '/z acre and 2 acres.
One commenter recommended acreage
limits of 2 acres of isolated wetlands
and Va acre of headwater wetlands.
Numerous commenters said that the 3
acre limit'is too low and that the acreage
limit should be 5 acres. They believe
chat the NWPs should be more flexible
and should authorize all activities that
result in minimal adverse effects. They
recommended that PCNs should be used
to determine whether or not a particular
project would result in more than
minimal adverse effects. Two
commenters recommended a 10-acre
limit and another commenter suggested
a 25-acre limit for this NWP. Some
commenters remarked that the acreage
limit should be higher because the
Corps has not demonstrated that higher
acreage limits will result in significant
direct or cumulative adverse effects.
Many of the commenters who stated
that the 3 acre limit is too high referred
to the recent United States District Court
decision in the District of Alaska on
NWP 29. They cited this court decision
as evidence that the acreage limit for
NWP 39 is too high because the Corps
was enjoined from accepting NWP 29
preconstruction notifications after June
30, 1998. Two commenters stated that
the acreage limits and PCN thresholds of
this NWP and NWPs 29 and 40 should
be similar.
In its decision, the District Court did
not rule that the acreage limit for NWP
29 (i.e., '/z acre of non-tidal waters) was
too high. The District Court merely-
required the Corps to consider lower
acreage limits and the exclusion of high
value waters in its environmental
assessment.
For activities in non-tidal wetlands,
NWPs 39 and 40 have different acreage
limits! NWP 39 utilizes an indexed -
acreage limit, as does NWP 40 for
discharges into playas, prairie potholes,
and vernal pools. NWP 40 utilizes a
simple acreage limit of 2 acres for
discharges into other types of non-tidal
wetlands. We are not proposing an
indexed acreage limit.for discharges
authorized by NWP 40 into non-tidal
wetlands because the national average
for farm tract size is approximately 275
acres, which means that most
agricultural producers, would qualify for
the maximum acreage limit of 2 acres.
However, we are proposing to utilize an
indexed acreage limit for discharges into
playas, prairie potholes, and vernal
pools. Most residential, commercial,
and institutional developments, on'the
other hand, would be subject to the
indexed acreage limit since most of
these developments occur on relatively
small parcels of land and the indexed
acreage limit would encourage
avoidance and minimization of impacts
to waters of the United States. It would
be impractical for this NWP to have the
same acreage limit as NWP 29 because
these NWPs fulfill different purposes.
NWP 29 applies solely to the
construction of a single family residence
whereas NWP 39 may be used to '
authorize the construction of a large
residential subdivision, a commercial
development, or an institutional
development. The PCN requirements of
NWPs 29 and 39 are different. NWP 29
requires notification for all activities
authorized by that NWP. NWP 39
requires notification for activities
resulting in the loss of greater uian 'A
acre of non-tidal waters and any
discharges resulting in the loss of open
waters.
Several commenters favored the use
of a sliding scale or indexing to
determine the acreage limit for this
NWP. A few commenters noted that the
sliding scale is too complex to
implement Some of the commenters;
endorsing the use of a sliding scale
recommend basing the indexing on a
percentage of the development size. One
commenter suggested 'that the acreage
limit should be based on 10% of the
parcel size, another commenter
suggested that the maximum acreage
should be 5% of the parcel size, several
commenters recommended an acreage
limit 2% of the parcel size, and two
commenters recommended using 1% of
the parcel size as the acreage limit.
Another commenter recommended a
minimum acreage limit of lh acre plus
10% of the wetlands on the parcel for
.this NWP.
One commenter stated that a
percentage of parcel size should be used
as the basis for the index because if the
indexing scheme proposed in the July'1,
1998, Federal Register is used, a small
increase in parcel size could allow a
much lajrger loss of wetlands. For
example, a parcel size of 14.4 acres
would have an acreage limit of 1 acre
whereas a 15.1 acre parcel would have
an acreage limit of 2 acres. In contrast,
an index based on the percentage of
parcel size or project area would result
in a small increase in the acreage limit
with a small increase in parcel size or
project area.
Other commenters remarked that die
indexing scheme proposed in the July 1,
1998, Federal Register notice has
acreage limits, so low for each size
category that it is useless. If indexing is
used to determine the acreage limit,
these commenters requested that the
Corps base the index on higher acreage .
limits. In contrast, some commenters
stated that the indexing should be based
on lower acreage limits. One commenter
recommended an indexed acreage limit
of 'A acre for every 5 acres of parcel
size.
In response to these comments, we
have decided to utilize an indexed
acreage limit for this NWP. The
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Federal Register.'Vol. 64. No. 1397Wednesday, July 21. 1999/Notices
proposed index begins with a base
.icreaqc limit of !.< acre and increases as
2 '& of the project area, in acres. The
maximum acreage limic for this NVVP is
3 acres of non-tidal waters of the United
Staces, excluding non-tidal wetlands
adjacent to tidal waters. The acreage
limit for this NWP is calculated as
follows:
Acreage limit = vU acre * 2% of the
project area (in acres) For example if the
project area is 5 acres, the acreage limit
would be 0.35 acres. If the project area
is 80 acres, the acreage limit would be
L85 acres. With this indexed acreage
limit, the maximum limit of 3 acres is
reached at a project area of 137.5 acres.
If the project area is greater than 137.5
acres, the acreage limit is 3 acres.
Two commenters said that indexing
shou. be based on the quality or values'
of the aquatic resource lost due to the
authorized work. They stated that such
a basis for Indexing would ensure that
only projects with minimal adverse
effects are authorized.
We believe that using functions and
values of aquatic resources to determine
the maximum acreage limit for an NWP
is Impractical because we do not
currently have a standard method for
measuring or assessing aquatic resource
functions and values.
One commenter stated that indexing
duplicates requirements for avoidance
and minimization, including die "~~
statement required in paragraph (f) of
the proposed NWP A. Two commenters
believe that indexing is counter to die
requirements for avoidance and
minimization and provides incentives
for developers to build larger projects.
We disagree with these comments,
because the purpose of using an indexed
acreage limit for this NWP is to have a
proportionally smaller acreage limit for
smaller projects, which reduces die
potential for losses of waters of die
United States. An Indexed acreage limit
encourages avoidance and minimization
because It imposes smaller acreage
limits on smaller projects radier than a
single larger acreage limit Wldi an
Indexed acreage limit, NWP applicants
are still required to avoid and minimize
Impacts to waters of the United States
on-slte to the maximum extent
practicable (see General Condition 19).
Another commenter asserted that
project proponents will attempt to get
around Indexing requirements by
artificially defining the parcel as larger
than It really Is to avoid going through
the Individual permit process. Two
commenters remarked that developers
may phase projects so that they can
build projects wldi higher impact
Federal Register notice.; In this case, the
Corps would have to determine if
phasing meets the criteria for a single
and complete project. They believe that
the use of a sliding scale will encourage
piecemealing of projects. One
commenter recommended that the term
"parcel size" used in the proposed
indexing scheme should be replaced
with the term "single and complete
project," as defined by subdivision
criteria. • [
We are proposing to base die indexed
acreage limit on a percentage of project
area, not parcel size, to ensure that the
NWP audiorizes only single and
complete projects. Basing die indexed
acreage limit on project [area will result
in an acreage limit diat reflects the
actual size of die proposed activity,
which cannot be artificially inflated in
an attempt to get a higher acreage limit.
Using the project area to determine die
acreage limit, a particular parcel could
have separate projects built upon it,
with acreage limits based on the size of
each project, as long as each separate
project has independent utility. If the
separate projects do not [have
independent utility, then the acreage
limit would be determiried by the sum
of the project areas for each dependent
component of the entire single and
complete project.
Two commenters said, diat die
proposed acreage limit will allow long
segments of streams to be impacted.
Some commenters recpipmended limits
for die amount of linearifeet of stream
bed diat may be filled or excavated
under this NWP. Commenters
recommended limits of 50, 100, or 150
linear feet of stream bed.
It should be noted that die proposed
NWP has a PCN requirement for any
loss of open waters, including streams.
By reviewing die PCN, district engineers
will be able to determine if die loss of
stream bed will result in more than
minimal adverse effects} If die stream
bed impacts are more dian minimal,
discretionary audiority will be exercised
fay die District Engineer; and die
applicant will have to apply for
authorization through ahodier permit
process or modify die project to comply
widi the NWP. Therefore, we do not
believe diat it is necessary to impose a
limit on die quantity of ^tream bed that
can be filled or excavated under diis
NWP. - • '
Preconstruction Notification: We
received a variety of comments
concerning die notification
requirements for this NWP. A couple of
commenters supported the proposed
PCN direshold of Va acre. Several
commencers recommended a \'i acre
PCN threshold. Two commenters
believe that the PCN threshold should
be 1 acre and a few commenters stated
that a PCN should be required for all
activities authorized by this NWP.
We believe diat the PCN direshold
should be 'A acre, to be consistent with
the other new NWPs.
For diis NWP, we also proposed to
require notification for all activities that
involve filling or excavating open
waters, such as perennial or intermittent
streams and lakes. One commenter
stated that this PCN requirement is
excessive and would mean that a PCN
will be required for virtually all
projects. This commente. ilso stated
that diis PCN requirement implies that
open waters are more important than
special aquatic sites and is contrary to
the Section 404(b)(l) guidelines. The
commenter recommended diat die
Corps establish other PCN thresholds for
open water impacts instead, such as a
500 linear foot PCN direshold for
intermittent stream impacts, and require
a PCN for all perennial stream impacts.
Another commen'ter recommended
using die size of die drainage area to
determine when a PCN is required for
open water impacts. This commenter
recommended requiring a PCN when
the drainage area is 1 square mile or
greater. Another commenter believes
- Uiat die PCN requirement for open
waters demonstrates a lack of
understanding diat not all significant
wedands have open waters and that diis
PCN requirement redefines wetlands. .
We disagree with the assertion diat
this PCN requirement is excessive and
would result in PCNs for nearly all
projects audiorized by this NWP. Many
development projects audiorized by diis
NWP would only impact wedands and
would require notification only for
those activities that result in the loss of
greater dian 'A acre of wetlands. In
addition, most residential, commercial,
or institutional development projects
can be designed to avoid impacts to
open waters. Road crossings of streams
diat are constructed with culverts would
require submittal of a PCN. The purpose
of diis PCN requirement is to allow
district engineers to review residential,
commercial, and institutional
development activities that result in a
loss of open waters, such as streams,
and ensure diat activities in these •
waters will result only in minimal
adverse effects on the aquatic
environment. We are proposing to add
Note 2 to die text of diis,-NWP to help
die regulated public Identify those areas
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ces
39307
We ire proposing to add the PCN
requirement for discharges into open
•••.-liters to provide district engineers with
me opportunity to review activities in
open waters and ensure that the
authorized work results in minimal
adverse effects on the aquatic
environment. One intent of the
proposed new and modified NWPs is to
provide equal consideration for open
and flowing waters and wetlands. The
proposed NWPs focus on the aquatic
environment as a whole', not just
wetlands. Streams and other open
waters are extremely important
components of the overall aquatic
environment. The proposed PCN
requirement does not redefine wetlands;
it merely places additional emphasis on
other types of waters of the United
States, such as lakes and streams. High
value wetlands and other waters will
receive additional protection through
regional conditions and the use of
discretionary authority where
discharges into high value waters may
result in more than minimal adverse
effects on the aquatic environment.
Several commenters stated that the
PCN process for this NWP does not
provide the Federal and State resource
agencies the opportunity to comment on
projects that adversely affect less than.l"
acre of waters of the United States.
These commenters believe that these
agencies should be allowed the
opportunity to comment on these
projects. One commenter supported
Corps-only review of projects that
adversely affect between Va acre and 1
acre of waters of the United States. One
commenter recommended agency
coordination for activities resulting in
die loss of greater than Vz acre of waters
of the United States.
We are proposing to modify General ;
Condition 13 to require agency
coordination for NWP 39 activities that
result in the loss of greater than 1 acre
of waters of the United States. PCNs for
activities that result in the loss of 'A
acre to 1 acre of waters of the United
States will be reviewed solely by the
Corps. Agency coordination for smaller
projects is costly to the Corps and
provides little value added in
determining whether or'not the work
will result in minimal adverse effects on
the aquatic environment. Corps district
personnel are highly experienced in
reviewing PCNs to assess the
environmental effects of the proposed
work and recommending special
conditions or requiring compensatory
mitigation to ensure that the adverse
effects on the aquatic environment are
minimal. If the District Engineer
determines that the adverse effects are
more dian minimal, discretionary
authority will be exercised and the
applicant will be notified that another
form of Corps authorization, such as an
individual permit, is required for the
proposed work.
A few commenters stated that the
PCN should include detailed plans and
schedules for compensatory mitigation.
Another commenter recommended that
the PCN should include baseline data
•'• r stream flows and a detailed analysis
or'stormwater standards to ensure
compliance with paragraph (g) (formerly
paragraph (i) of NWP A) of the proposed
NWP.
We believe that it is unnecessary to
require detailed plans and schedules for
compensatory mitigation with the PCN
to ensure that'the adverse effects of the
authorized work on the aquatic
environment are minimal. Requiring the
submission of detailed compensatory
mitigation plans widi the PCN will
increase the amount of time required to
review the PCN. For the PCN, the
applicant need only provide a
conceptual proposal for compensatory
mitigation that will offset the loss of
aquatic resource functions and values.
However, a detailed mitigation plan
may be submitted with the PCN if die
applicant chooses to submit such a plan.
The District Engineer will evaluate the
compensatory mitigation proposal to
determine if it is adequate to ensure that
the adverse environmental effects of the
proposed work are minimal. Detailed
plans for project-specific compensatory .
mitigation projects are usually required
as special conditions of the NWP
authorization. If the proposed'
compensatory mitigation is provided
through payment to an approved
mitigation bank or in lieu fee program, .
detailed plans are not required because
the Corps may have previously
reviewed the plans for the mitigation
bank or in lieu fee site. It should be
noted that Corps must finish its review
of the PCN within 45 days of receipt of
a complete PCN; such a time limit
makes it difficult to thoroughly review
and approve detailed compensatory
mitigation plans and schedules.
District engineers will determine
compliance with paragraph (g) of NWP
39 through qualitative methods or defer
to State or local regulatory agencies,
who may require quantitative analyses
to ensure that the project does not result
in more than minimal adverse effects to
water quality or surface water flows.
Statement of Avoidance: Paragraph (f)
of the proposed NWP requires the
applicant to submit a statement widi the
PCN which demonstrates that
discharges into waters of the United
States were avoided and minimized to
the maximum extent practicable and
that additional avoidance and
minimization cannot be achieved. One
commenter favored this requirement.
but a few commenters remarked that the
requirement is unnecessary and
recommended that it be removed. One
commenter stated that the NWP
regulations already require on-site
avoidance and minimization and that
this requirement increases the burden
on the landowner and provides no '
environmental benefit. This commenter
went on to say that the Federal Register
notice does not provide any guidance as
to what information is necessary to
fulfill this requirement. Another
commenter stated that this requirement
will be impossible to implement.
Several commenters srated that this
requirement is insufficient, and that
projects should be subject to more
comprehensive alternatives analysis.
This requirement (now in paragraph
(e) of NWP 39) is similar to the
requirements of General Condition 19,
Mitigation. It merely requires that the
applicant provide a statement
explaining how he or she is complying
with this general condition. We disagree
that it will create an additional burden
on the project proponent because it will
provide the Corps with the relevant
avoidance and minimization details
early in the PCN review process. In fact,
submission of such a statement with the
PCN is likely to benefit project
proponents because die Corps personnel
evaluating the PCN will not have to ask
during the PCN review period if
additional avoidance and minimization
can be achieved. We believe that this
requirement will save time and make
the PCN process more effective. This
requirement will also encourage project
proponents to think more carefully
about how to furdier avoid and
minimize adverse effects to waters of
the United States on die project site.
To require a more comprehensive
alternatives analysis is contrary to die
NWPs. NWPs authorize activities wiui
minimal adverse effects on die aquatic
environment, and if die proposed work
meets the terms and limits of the NWP,
the applicant cannot be required to
consider off-site alternatives. If the
adverse effects of a particular project are
more than minimal the District Engineer
will exercise discretionary, authority and
require an individual permit for the
proposed work. The individual permit
process requires a full alternatives
analysis, including the consideration of
off-site alternatives.
Since the avoidance and
minimization requirement and the
compensatory mitigation requirement of
die NWP are related, we have combined
paragraphs (£) and (g) of proposed NV/P
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Federal Register
Vol. 64, N'Q. 139/Wednesday. July 21, 1999/N'ocices
A into paragraph t.e) of NWP 39.
Compensacory mitigation requirements
for this NWP are discussed belcw.
Compensatory Mitigation: Paragraph
"gj of the proposed NWP A stated that
rhe permittee muse submit a mitigation
proposal to offset die loss of waters of
'ne United States for activities that
require notification. One commenter
recommended changing this
requirement to specify that.the losses of
wecland functions and values should be
offset, noc just the acreage loss. This
commenter stated that the proposed
wording is unclear and subject to
various interpretations and should be
consistent with die mitigation
memorandum of agreement (MO A)
signed in 1990.
This requirement has been
incorporated into paragraph (e) of NWP
39. The purpose of compensatory
mitigation is to offset losses of functions
and values of waters of the United
States and ensure that die net adverse
effects on die aquatic environment are
minimal. However, it is important to
allow district engineers die flexibility to
require compensatory mitigation diat
provides more benefits to the aquatic
environment. Out-of-kind compensatory
mitigation, such as the establishment
and maintenance of vegetated buffers
adjacent to streams, may provide, more
benefits to die local aquatic
environment than replacing the wetland
filled by die audiorized work. It is also
Important to note diat compensatory
mitigation may be required for losses of
other types of waters of the United
States, not only wetlands. District'
engineers can require a greater acreage
of compensatory mitigation to replace
the aquatic resource functions and
values lost due the audiorized work if
the compensatory mitigation cannot
readily replace die lost functions and
values. On die odier hand, if die waters
of die United States lost as a result of
die authorized work are low value,
providing few funcdons and values, a
smaller acreage of compensatory
mitigation may be appropriate to offset
die lost functions and values of diat
area.
The mitigation process, as defined In
die Council on Environmental Quality's
regulations at 40 CFR Part 1508.20,
includes avoidance, 'minimization, and
compensation. Therefore, we are
providing furdier clarification for diis
requirement by inserting die word
"compensatory" in front of the word
"mitigation" to state diat die type of
mitigation required by die District
Engineer Is compensation to replace
losses of functions and values of waters
Two commenters support the
requirement for compensatory
mitigation for losses diat require a PCN.
Several commenters.objected to diis
N'WP because this condition does not
specifically require compensatory
mitigation for losses of less than l/3 acre.
which diey believe will result in
• substantial cumulative adverse effects
on the aquatic environment. Another
commenter suggested ijhat compensatory
mitigation should be required for
impacts to perennial streams. One
commenter stated that
mitigation
proposals should be subject to agency
review. A commenter recommended
modifying diis paragraph to allow die
permittee die opportunity to justify why
compensatory mitigation should not be
required for a particular project.
It should be noted that paragraph (e)
only requires die submission of a
compensatory mitigation proposal to die
District Engineer with the notification,
and is not a requirement for
compensatory mitigation. The
prospective permittee may submit either
a conceptual or detaileld compensatory
mitigation proposal. District engineers
will determine on a case-by-case basis if
compensatory mitigation is necessary to
ensure diat die proposed activity will
result in minimal adverse effects on die
aquatic environment, individually or
cumulatively. However, in most cases,
compensatory mitigation will be
required for activities that require
notification to ensure Uiat diose
activities result only in' minimal adverse
effects on die aquatic environment. In
paragraph (e), we have stated diat
•compensatory mitigation will normally
be required to offset losses of waters of
die United States, but if die applicant
believes diatj±ie adverse effects of die
project on die aquatic environment are
minimal without compensatory
mitigation, dien die applicant can
provide justification with die PCN for
die District Engineer's consideration.
Compensatory mitigation is not
required for activities diat do not
require preconstructiori notification,
because the adverse effects on the
aquatic environment caused by diose
activities are minimal. In watersheds
where small losses of waters of die
United States have greater potential for
more dian minimal adverse effects,
division engineers can regionally
condition die NWP to lower die- .
notification direshold, ivhich will allow
district engineers to require
compensatory mitigation for losses of
less dian 1/4 acre of waters of die
United States. For activities that require
Corps-only review of die PCN, agency -
review is not required to review die
because die District Engineer will
determine whether or not the proposed
mitigation is appropriate. For PCNs
subject to agency coordination, Federal
and State resource agencies will have
die opportunity to review die
compensatory mitigation proposal
submitted with die notification.
One commenter stated that buffers
adjacent to any waters of the United
States, not just open water, should be
part of any required compensatory
.nitigation.
We concur with diis comment and
have stated elsewhere in this notice that
district engineers can consider the
establishment and maintenance of
vegetated Buffers adjacent to waters of
the Unite--.. States, including wedands,
as compensatory mitigation for losses of
waters of the United States. Vegetated
buffers adjacent to waters of the United
States, including open waters and
wetlands, can be considered as out-of-
kind compensatory mitigation because
vegetated buffers are important
components of the aquatic environment
due to die functions diey provide, -
especially for maintaining water quality
and habitat for aquatic organisms.
Vegetated buffers reduce adverse effects
to local water quality caused by adjacent
land use. Forested riparian buffers
provide shade to streams, supporting
cool water fisheries. When determining
die appropriate amount of
compensatory mitigation required for
particular projects, district engineers
should reduce die amount of
"replacement acreage" required as
compensatory mitigation by an amount
diat recognizes the value of die -
vegetated buffer to die aquatic:
environment.
One commenter recommended diat
pn-site mitigation should be considered
before off-site mitigation and diat off-
site mitigation should be accepted only
if on-site mitigation is not
environmentally beneficial. Two . -.
commenters oppose die use of
mitigation banks and in lieu fee
•programs to provide compensatory
mitigation for activities audiorized by
diis NWP. Another commenter
recommended diat where compensatory
mitigation is required, it should be done
in a State-sponsored midgation bank
widiin die same drainage basin.
The sequencing requirements for
compensatory mitigation recommended
in die previous paragraph have
limitations. Compensatory mitigation
projects, whether diey are individual
projects diat restore, enhance, or create
aquatic areas or are payments to
mitigation banks or in lieu fee programs,
should be selected on die basis of their
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Federal Register Vol. 64. No. 139/ Wednesday. July 21. 1999/N'odcss
39309
effectiveness nt offsetting authorized
losses of waters of the United States. In-
kind and on-site requirements for
compensatory mitigation should be
considered, but not to the exclusion of
what is best for the aquatic
environment. If off-site compensatory
mitigation will provide more benefits to
the local aquatic environment, dien that
form of compensatory mitigation should
be selected. On-site wetland creation
projects are often unsuccessful because
of changes to local hydrology caused by
the authorized activity, which may
prevent die development of a functional
replacement wetland. On-site
restoration may have a better chance of
success, but success may not be
achieved because of changes in land use
in die vicinity of the authorized work.
It is often better to utilize off-site
wetland creation, restoration, and
enhancement projects, including
mitigation banks and in lieu'fee
programs, if they are appropriate and
available. The use of mitigation banks to
provide compensatory mitigation for
losses of waters of the United States
authorized by NWPs should not be
limited to State-sponsored'mitigation
banks. Permittees should be allowed to
use any mitigation bank in the area that
replaces functions and values of waters
_of the United States,- including
wetlands, lost due to the authorized
work. When reviewing compensatory
mitigation proposals, district engineers
will consider what is best for the aquatic
.. environment, including requiring
vegetated buffers to open and flowing
waters and wetlands.
One commenter recommended that
die NWP contain a provision requiring
all remaining wetlands on the parcel to
be protected by a conservation easement
to prohibit any future development on
die property.
We disagree, because such a
requirement can be considered a taking
of private property, unless the applicant
agrees to preserve the remaining
wetlands on the property as • .
compensatory mitigation for authorized
losses of waters of the United States. If
there are any streams or other open
waters on the project site, the District
Engineer can require the permittee to
establish and maintain vegetated buffers
adjacent to those waters as .
compensatory mitigation. The vegetated
buffers should be protected by a
- conservation easement, deed restriction,
or odier legal means.'
Use of This NWP With Other NWPs:
Paragraph (h) of die proposed NWP A
addressed the use of this NWP with
odier NWPs. This paragraph has been
changed to paragraph (f), and only
addresses die PCN threshold when this
NWP is used with o.ther NWPs. The use
of NWP 39 with other NWPs is
addressed in the proposed modification
of General Condition 15. Paragraph (0
has been modified to reflect die changes
in die PCN threshold discussed above.
One commenter supported this
requirement of paragraph (h) of the
proposed NWP A. Another commenter
stated that this NWP should not be
stacked with odier NWPs because diis
NWP audiorizes all activities associated
with the single and complete project.
One commenter said that this NWP
should not be combined with odier
NWPs to authorize permanent, above-
grade fills. One commenter stated diat
diis NWP should not be combined widi
other NWPs. ',
Although die proposed NWP 39
audiorizes die construction of building
pads, foundations, and attendant
features for a single and complete
residential, commercial, or institutional
development, there may be
circumstances where other NWPs are
necessary to audiorize "discharges of
dredged or fill material into waters of
"die United States for related activities
that occur in types of waters not covered
by this NWP. It is important to consider
these additional activities as part of the
single and complete project. For
example, a community boat ramp diat
can be authorized by NWP 36 may be
constructed in tidal waters for a new
residential subdivision diat is
authorized by NWP 39. In this situation,
when NWP 39 is combined with NWP
36, the total loss of waters of die United
States cannot exceed the indexed
acreage limit for NWP 39. The use of
more dian one NWP to audiorize a
single and complete project is addressed
in the proposed modification of General
Condition 15.
One commenter stated that die
stacking limitation assumes diat projects
widi greater than 3 acres of impact to
waters of die United States exceed the
minimal adverse effects threshold and
diat it is illogical for die Corps to
assume that each NWP, if used alone,
will result in minimal impacts, but if
used with odier NWPs will result in
more dian minimal adverse effects. This
commenter asserted that the Corps has
no evidence to support its contention
diat NWP stacking in excess of 3 acres
will result in more than minimal
impacts and recommended that the
Corps eliminate this condition of the
NWP because die PCN requirement is
sufficient to ensure that the NWP
audiorizes only diose activities with
minimal adverse effects. This
commenter also stated that the stacking
restriction is contrary to 33 CFR Part
330.6(c).
For die NWPs, we establish acreage
limits chat will ensure that the
authorized activities will not result in
more than minimal adverse effects on
the aquatic environment, individually
or cumulatively. There may be some
circumstances (e.g., projects in low
value waters of the United States) where
larger impacts result in minimal adverse
effects. If a particular district has a large
number of these types of projects, then
that district can develop a regional
general permit to authorize those
activities. When more dian one NWP is
used to audiorize a single and complete
project, the District Engineer must
consider the additive adverse effects on
die aquatic environment. Each NWP has
an acreage limit based on a minimal
adverse effects determination made only
for that NWP. By combining NWPs, the
sum of the acreage losses and die sum
of die adverse effects of diose losses on
die aquatic environment increases die
probability tiiat die minimal adverse
effects direshold will be exceeded.
Since the NWPs can authorize only
diose activities that result in minimal
adverse effects on the aquatic
environment, Individually or
cumulatively, a prohibitionagainst
stacking NWPs to exceed a specified
acreage limit,^pecessary. General
Condition lS j^'not contrary to 33 CFR
Part 330.6(c) because this regulation
does not eliminate" the'heed to comply
with Section 404(e) of .the Clean. Water
Act and 33 CFR Part 323.2(h).
Two commenters stated that any
stacking diat occurs with diis NWP
should have an acreage limit equal to
die lower acreage limit for any of die
NWPs involved. Anodier commenter
suggested that any stacking that occurs
widi this NWP should have an acreage
limit equal to the higher acreage limit
for any of die NWPs involved. Two
odier commenters stated diat paragraph
(h)';'bf die proposed NWP A should be
revised to specify diat total acreage.
cannot exceed 3 acres or the indexed
acreage limit of die NWP, whichever is
less. One commenter recommended diat
this NWP should not be stacked with
NWP 29.
We disagree with the first comment in
die previous paragraph because it would
render this NWP useless in most
situations. For example, NWP 36 limits
die construction of boat ramps to a
maximum width of 20 feet and a
maximum discharge of 50 cubic yards.
By requiring a combination of this NWP
and NWP 36 to be subject to die lesser
acreage limit of NWP 36, NWP 39 would
essentially audiorize no residential,
commercial, or institutional
development activities when combined
with NWP 36. We are proposing to
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General Condition 15 to allow
T.e use of more than one NWP to
Authorize a single and complete project.
.is iong as the acreage loss does not
exceed the highesc specified acreage
limit of che NWPs used to authorize that
activity. The statement in paragraph (0
regarding the PCM threshold has been
changed co include the PCM threshold of
: A acre.
We believe that prohibiting the use of
NWP 29 with NWP 39 is unnecessary
and have not added it to the NWP.
NWPs 29 and 39 are used by different
groups of landowners. NWP 29 can be
used only by the present or future •
occupants of the single family,
residence. NWP 39. on the other hand.
can be used by others, such as contract
builders and developers, to construct
single family residences. Paragraph (d)
states that only single and complete
projects can be authorized by NWP 39.
If the District Engineer establishes an
exemption to the subdivision provisio'fi
of this NWP. NWP 29 may be used by
an owner of a subdivided parcel to
construct a single family residence.,If
the construction of another single family
residence on the property has '
independent utility and is not part of
the previously authorized single and
complete project, then either NWP 29 or
NWP 39 may be used to authorize that
single family residence, provided the
authorized work results in minimal
adverse effects on the aquatic
environment.
Orfter comments: A few commenters
recommended that the Corps add a
definition of the term "single and
complete project" to the NWP.
The Corps has defined the term
"single and complete project" in the
regulations governing the NWP program
(see 33 CFR 330.2(i)). This definition
applies to all of the NWPs, including the
new NWPs proposed today. This
definition is repeated in the
"Definitions" section of the NWPs. For
NWP 39, the acreage limit is based on
the size of the single and complete
project (i.e.. the footprint or areal extent
of the project). For the purposes of this
NWP, a definition of "project area" is
included in the "Definitions" section. '
The concepts of "single and complete
project" and "project area" must also be
considered in the context of the
subdivision provision of this NWP. In
the July 1, 1998, Federal Register
notice, we proposed General Condition
16, entitled "Subdivisions." The
purpose of proposed General Condition
16 was to define, for proposed NWPs A
and B, the single and complete project
In terms of land parcels. Since proposed
NWP B was withdrawn, we have
condition addressing subdivision of
land is unnecessary since it would onlv
apply to NWP 39. Therefore, we have '
incorporated the text of proposed
General Condition 16 irjto the text of
NWP 39, with some minor changes. The
term "parcel" is used in the subdivision
provision of NWP 39 to, determine T3
aggregate total loss authorized by the
NWP and the appropriate NWP acreage
limit. The project area may be the same
as the size of the parcel; but more than
one single and complete project may be
built on a single parcel.|
Multi-phase projects may be
considered as separate single and
complete projects depending on
whether or not one phase has
. independent utility i'rom another phase.
If a phase of a multi-phase project has
independent utility from the other
phases, then that independent phase
can be considered as a separate single
and complete project and may be
eligible for the maximum acreage limit
as determined by the project area. Each
phase of a project can be authorized
. with the maximum acreage, provided
each phase has independent utility from
the other phases and the,work results
only in minimal adverse effects on the
aquatic environment. Multiple parcels
can also.be combined for a larger single
project. The acreage limit for a
combined larger project iis based on the
indexed acreage limit for the project '
area. [
Two commenters suggested that
authorizing the expansion of projects
with this NWP is contradictory since
this NWP is applicable only for single
and complete projects. '
We disagree, since a pi-oject
proponent can expand an existing single
and complete project provided the terms
and limits of the NWP are not exceeded
and the adverse effects on the aquatic
environment are minimal. When
evaluating such requests for NWP
authorization, we add the previously
authorized impacts to the proposed
impacts to determine if the proposed
expansion exceeds the acreage limit. If
the PCN threshold is exceeded, the
applicant is required to notify the
District Engineer. The District Engineer
reviews the PCN and determines if the
proposed work is authorized by NWP.
. One commenter expressed concern
that a subdivision developer could
construct the project, sell the lots, and
the new owners would b;e eligible for
NWP authorization .to do further work
on their lots. Another commenter stated
that after a project is'authorized by this
NWP, further development on the
property should be prohibited.
__We are proposing to add a subdivision
piecemealing of projects chat exceed che
acreage limit. For real estate
subdivisions created or subdivided after
October 5. 1984, the aggregate loss of
waters of che United States authorized
by this NWP cannot exceed trie acreage
limit based on the index in paragraph
(a). If the owners of the property want
to do additional work that would exceed
the indexed acreage limit under ,
paragraph (a), then they must obtain
another type of Corps permit, such as an
individual permit or a regional general
permit, unless the additional work has
independent utility. We cannot prohibit
additional activities on the project site
unless it is in the public interest to3do
, so.
Three commenters believe that this
NWP would authorize considerable
impacts to floodplains and riparian
zones and should not authorize
activities in these areas, or should be
limited to those activities with .
unavoidable impacts that provide
essential public services. One
commenter stated that a net gain in
wetlands cannot be achieved if.
residential, commercial, and
institutional development activities are
authorized in wetlands.
.. In the October-14, 1998, Federal
Register notice we requested comments
on limiting the use of the NWPs to
authorize activities in the 100-year
floodplain as mapped by the Federal
Emergency Management Agency .
(FEMA) on its Flood Insurance Rate
Maps. In response to the October 14.
1998, Federal Register notice, proposed
General Condition 27 has been added to
the NWPs. General Condition 27
prohibits the use of NWP 39-to
authorize permanent, above-grade fills
in waters of the United States within the
100-year floodplain.
Property owners are entitled to
reasonable use of their property, the ..
Corps cannot prohibit all of these
activities in wetlands. However, NWP
applicants are required to avoid and
minimize adverse effects to waters of
the United States on-site to the
maximum extent practicable (see
General Condition 19). For those
unavoidable impacts, we can require
compensatory mitigation to ensure that
the adverse effects on the aquatic
environment are minimal. In the July 1,
1998, Federal Register notice, we cited
data from the past use of NWP 26,
which demonstrates that during the
period of May 1, 1997, through
December 31, 1997, more than 3 acres
of compensatory mitigation was
required for every acre of wetland lost
as a result nf rpsirlpnHal rnrnrnprrTal
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39311
One commenter stated that che term
"measurably degrade" in paragraph (i)
of the proposed NWP A needs to be
d'efined. Another commenter said that
this term is unnecessary because any
measurable degradation of water quality
would occur after the work is
completed. This commenter went on to
say that this condition implies that if
rhe degradation is not measurable, then
it is authorized by the NWP.
We have rewritten this condition
(now in paragraph (g)) to replace the
term "measurably degrade" with
language that is more consistent with
General Condition 9. The intent of this
condition is to ensure that the
authorized work does not result in more
than minimal degradation of local water
quality. Vegetated buffers adjacent to
ooen or flowing waters and wetlands
and adequate stormwater management
facilities can minimize-the adverse
effects of the development on'local
water quality.
One commenter stated that the
preamble for this NWP in the July 1.
1998, Federal Register notice contains
several conditions diat are not included
in die text of the NWP and that these
conditions should be consistent with
the final NWP.
In the .preamble discussion of the
proposed NWP, we did not include -
conditions that were not incorporated
into the text of the NWP itself. In the
preamble for the NWP, we reiterated
some of the terms and conditions of this
NWP, with discussions of the intent and •
•meaning of those conditions.
A commenter stated that the eight
months of data presented by the Corps
in the July 1, 1998, Federal Register
notice is inadequate to assess, the
adverse effects that may result from die
use of this NWP. The commenter
recommended that at least one and a
half years of data should be used.
We have collected additional data
since die July 1, 1998, Federal Register
notice for the use of NWP 26 for
activities that could be authorized by
this NWP. We have collected this data
for over a year and will consider diis
data in our Environmental Assessment
for NWP 39. This data will be used to
estimate die potential losses of waters of
the United States diat will result from
the use of this NWP. This data will
include die losses of waters of the
United States authorized by NWP 26, as
well as die gains provided by
compensatory mitigation.
One commenter requested diat this
NWP require die establishment and
maintenance of vegetated buffers
adjacent to open waters and streams,
and diat diese vegetated buffers should
be protected by deed restrictions,
conservation etSsements,' orfthejSegal
means. • •
We concur with this comment; 'and
have added a new paragraph (1) to NWP
39 to require, to die maximum extent
practicable, the establishment and
maintenance of vegetated buffers
adjacent to open waters .and streams, if
those types of waters of die United
States are present on die project site.
Paragraph (iV also requires the
protection of these vegetated buffers by
deed restrictions, conservation
easements, or other legal methods. For
activities requiring notification, the
composition of die vegetated buffer, in
terms of plant species, and die
appropriate widdi of the vegetated
buffer, are determined by the District
Engineer. For activities audiorized by
this NWP diat do not require
notification, die permittee should
establish and maintain vegetated buffers
diat are wide enough to protect water
quality and are comprised of native
plant species. Division engineers can
also regionally condition this NWP to
prescribe vegetated buffer requirements
for activities diat do not require
unification.
One commenter stated that this NWP
would be overly burdensome to
builders.-Anodier commenter believes
. that autiiorizing residential,
commercial, and institutional
development activities in all non-tidal
waters of die United States will result in
too much workload for Corps' districts.
The purpose of the proposed NWP is
to efficiently authorize residential,
commercial, and institutional
development activities diat result in
minimal adverse effects on die aquatic
environment. NWP 26 audiorized.many-
of diese same activities in isolated
waters and headwaters. The proposed
•NWP audiorizes diese activities in all :
non-tidal waters of die United States,
excluding non-tidal wedands adjacent
to, tidal waters. Proposed General
Condition 27 prohibits die use of NWP ,
39 to audiorize permanent, above-grade
fills in waters of the United States
within die 100-year floodplain, which
will further limit die use of NWP 39 in
non-tidal waters. It is our experience
diat many builders design their projects
to comply witii die NWPs, rather dian
construct larger projects that require
individual permits. Akhough the
proposed NWP has additional
conditions that were not previously
included with NWP 26, diese conditions
are intended to reduce adverse effects
on die aquatic environment. Developers
should be able to design dieir projects
to comply with these conditions and
qualify for NWP audiorization. Anodier
important point to consider is that
NWPs are optional permits. If the
permittee does not want to comply with
ail of die terms and conditions of an
NWP, then he or she may request
audiorization through the individual
permit process or apply for
authorization by a regional general
permit, if such a general permit is
available.
This NWP is subject to proposed
General Conditions 25, 26, and 27,
which will substantially reduce its
applicability. General Condition 25
prohibits die use of this NWP to
authorize discharges into designated
critical resource waters and wetlands
adjacent to those waters. General
Condition 26 prohibits die use of diis
NWP to audiorize discharges resulting
in die loss of greater than 1 acre of
impaired waters, including adjacent
wedands. NWP 39 activities resulting in
die loss of 1 acre or less of impaired
waters, including adjacent wedands, are
prohibited unless prospective permittee
demonstrates to die District Engineer
diat die activity will not result in furdier
impairment of die waterbody. •
Notification to die District Engineer is
required for all discharges into impaired
waters and their adjacent wetlands.
General Condition 27 prohibits die use
of NWP 39 to audiorize permanent,
above-grade fills in waters of the United
States widiin die 100-year floodplain.
We believe diat die terms and
condidons of the proposed new and
•modified NWPs, especially the
requirements of die three new NWP "
general conditions, will result in a
substantial increase in the number of _
individual permits processed by our .
district offices. Districts will use die
proposed new and modified NWPs,
widi regional conditions, to prioritize
their workload, in non-tidal waters! In
response to a PCN, district engineers
can require special conditions on a case-
by-case basis to ensure diat die adverse
effects on die aquatic environment are
minimal or exercise discretionary
audiority to require an individual
permit for die work. The issuance of this
NWP, as with any NWP, provides for
die use of discretionary audiority when
valuable or unique aquatic areas may be
affected by these activities. Proposed
NWP A is designated as NWP 39, with
die modifications discussed above.
40. Agricultural Activities
In the July 1, 1998, Federal Register
notice, we proposed to modify diis.
NWP,,which originally audiorized only
die construction of foundations or
building pads for farm buildings in
farmed wetlands, to authorize
discharges into non-tidal wedands for
the purposes of increasing agricultural
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Federal Register Vol. 64. No. 139/Wednesday, July 21, 1999/Notices
prt'iucrion. As a result of the comments
•••e received concerning this NWP, we
have substantially changed the
prcposed modification of NWP 40 to
authorize the following activities: (I)
Discharges into non-tidal wetlands,
excluding other waters of the United
States te%.. open or flowing waters) and
non-ndal wetlands adjacent to tidal
unters. conducted by participants in
U«5= Department of Agriculture (USDA)
programs to increase agricultural
production, (2) discharges into non-tidal
wetlands, excluding other waters of the
United States (e.g.. open or flowing
waters) and non-tidal wetlands adjacent
to tidal watersi conducted by
agricultural producers that are not
participants in USDA programs to
increase agricultural production; (3)
discharges Into farmed wetlands for the
construction of building pads for farm
buildings, and (4) the relocation of
existing serviceable drainage ditches
constructed in non-tidal streams. For
activities authorized by paragraph (a) of
this NWP. the Natural Resources
Conservation Service (NRCS) will
determine if the proposed work meets
the terms and conditions of NWP 40,
unless the permittee also proposes to
construct building pads for farm
buildings or relocate greater than 500
linear feet of existing serviceable
drainage ditches constructed in non-
tidal streams. For discharges resulting in
the loss of greater than "A acre of non-
tidal wetlands by non-participants in
USDA programs to increase agricultural
production, the construction of building
pads for farm buildings, and/or the
relocation of greater than 500 linear feet
of existing serviceable drainage ditches
constructed in non-tidal streams, the
Corps will determine if the proposed
work is audiorized by NWP 40. Division
engineers will not regionally condition
paragraph (a) of this NWP. to ensure
that this NWP Is consistently applied by
N'RCS and agricultural producers across
the country. These proposed changes
are discussed in more detail below.
General Comments: Many
commenters objected to the proposed
modification and only a few supported
die proposed modification of NWP 40.
Of those who objected,to the proposed
modification, the reasons for their
objections include: (1) The NWP would
authorize substantial cumulative losses
of wetlands, especially in die prairie
pothole region: (2) the use of the NWP
would result in substantial degradation
of water quality; (3) the NWP does not
comply with Section 404(e) of die Clean
Water Act; (4) the NWP delegates some
of the Corps responsibilities to NRCS,
the statutory requirements of che Clean
Water Act; (5) the NWPfis contrary to
Swampbuster. and (6) the proposed
modification is contrary to the goals of
programs that restore arid enhance
wetlands, such as the Conservation
Reserve Program (CRP) and the
Wetlands Reserve Program (WRP).
This NWP complies with the
requirements of Section 404(e) of the
Clean Water Act becaus'e it audiorizes
activities that are similar in nature and
will result in minimal adverse effects on
the aquatic environment. As widi all
odier NWPs, district engineers will
monitor die use of NWP 40 on a
watershed basis to determine if the use,
of NWP 40 and other NWPs results in '
more dian minimal cumulative adverse
effects on the aquatic environment,
including degradation of local water
quality. States, Tribes, and. EPA will
also make local determinations for
compliance with Section 401 of die
Clean Water Act and determine if
activities authorized by| NWP 40 will
violate local or State water quality
standards. If die cumulative adverse
effects widiin a particular watershed are
more than minimal, dien die District
Engineer will suspend or revoke the use
of die NWPs in accordance with 33 CFR
Part 330.5. For activities in non-tidal
wetlands by USDA program participants
to increase agricultural [production,
NRCS will review the proposed work
and determine if it is authorized by
NWP 40. In these casesi each landowner
must submit a report to; the District
Engineer'so that the use of NWP 40, die
losses of waters of the United States,
and compensatory mitigation can be
monitored. For activities diat require
notification to the District Engineer (i.e.,
discharges resulting in the loss of
greater than 1A acre of non-tidal
wetlands by non-participants in USDA
programs to increase agricultural
production, discharges into farmed
wedands for the construction of pads for
farm buildings, or the relocation of
greater than 500 linear feet of drainage
ditches constructed in non-tidal
streams), die District Engineer will
review die PCN and determine if die
adverse effects on die aquatic
environment resulting from die
proposed work will be minimal. If die
proposed work involves both activities
in non-tidal wetlands to increase
agricultural production and eidier die
relocation of greater dian 500 linear feet
of drainage ditches constructed in non-
tidal streams or die construction of pads
for farm buildings, die landowner must
submit a PCN to die Corps, and die
District Engineer will determine if die
40. For those activities chat require
notification, the District Engineer will
determine if the proposed work will
result in minimal adverse effects on the
aquatic environment. If die proposed
work will result in more than minimal
adverse effects on the aquatic
environment, discretionary authority
will be exercised and an individual
permit will be required.
One of the goals of the proposed
modification of this NWP is to reduce
duplication between die Corps and
NRCS, reduce confusion, arid provide
some regulatory relief to agricultural
producers. This is one of die goals of die
Administration's wedands plan, which
is to make the wetlands regulatory
program fair, flexible, and effective.
This NWP does not delegate the Corps
responsibilities under Section. 404 of die
Clean Water Act to NRCS, but allows
activities with minimal adverse effects
on die aquatic environment to proceed
without duplicate "review by two
Federal agencies. This NWP does not
require NRCS to implement trie Clean
Water Act. It merely addresses certain
situations where the Clean Water Act
and Swampbuster have duplicate
requirements. District engineers will
monitor die use of NWP 40 to assess die
cumulative adverse effects on die
aquatic environment, dirough reports
submitted by landowners and diose
activities reviewed by die Corps on a
case-by-case basis.
This proposed modification of NWP
40 is not contrary to the CRP and the
WRP; which are voluntary programs.
Participation in diese programs by
agricultural producers is not mandatory.
Although the CRP and WRP are
important conservation programs, it is
important to note diat agricultural
producers may need to alter their land
to increase production and remain
competitive with odier agricultural
producers. NWP 40 audiorizes activities
in non-tidal waters of die United States,
excluding non-tidal wedands adjacent
to tidal waters, to allow agricultural
producers to increase production, as
long as diose activities have minimal
adverse effects on die aquatic
environment, individually or
cumulatively. Bodi die Corps and NRCS
can require compensatory midgation to •
offset losses of waters of die United
States audiorized by diis NWP to ensure
diat the adverse effects on the aquatic
environment are minimal. It is
important to note diat draining and .
filling wetlands to increase agricultural
production is often reversible.
Agricultural lands diat were previously
wedands are often die easiest to restore
because they require less effort and
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Federal Register Vol. 64. Xo. 139/Wednesday. Julv 21. 1999'Notices
39313
'.vere filled to create residential
subdivisions or commercial facilities.
Although this NWP may be used to fill
a particular area to increase agricultural
production, that area may be restored at
a later time.
A commenter stated that the proposed
modification is too restrictive and
should be equitable with other NVVPs.
because agricultural activities and other
more potentially destructive activities,
such as the construction of residential,
commercial, and institutional
developments, should be held to the
sam'e standard. One commenter
requested diat the preamble to the NWP
state that the use-of the NWP will help
achieve the goal of the Clean Water
Action Plan of "no net loss" and ensure
onsistency with the Federal
.Agriculture Improvement and Reform
Act of 1996, which exempts wetland
conversions from the Swampbuster
provisions of the Food Security Act as
long as wetland functions, values, and
acreage are fully offset. One commenter
recommended modifying the NWP to be
consistent with the limits associated
with the minimal effects criteria
regionally established under the Farm
Bill. A number of commenters believe
that the proposed modification of NWP
40 is unnecessary because ongoing farm
operations in farmed wetlands are
-exempt under Section 404(f) of the
Clean Water Act.
We agree that the modifications to
NWP 40 proposed in the July 1, 1998,
Federal Register notice'placed greater
- restrictions on agricultural producers '
than proposed NWP A (now designated
as NWP 39) did on residential,
commercial, and institutional
developers. We have attempted to make
"NWPs 39 and 40 more equitable in
terms of applicable waters and
determining what constitutes a single
and complete project for these NWPs.
Both NWPs 39 and 40 authorize
activities in non-tidal waters of the
United States, excluding non-tidal
wetlands adjacent to tidal waters. We
have retained the separate provisions for
playas, prairie potholes, and vernal
pools from NWP 40, with an indexed
acreage limit and a maximum limit of 1
acre, which is achieved for farm tracts
90 acres or greater in size. For proposed
NWP 39, the single and complete
project will be based on project area. For
the proposed modification of NWP 40,
a single and complete project will be
based on farm tract size. Farm tracts will
be identified by the Farm Service
Agency. The definition of the term
"farm" based on reporting to the
Internal Revenue Service has been
removed. In the "Definitions" section of
the NWPs, the term "farm" has been'
replaced widi'/'farrh tract."^
definition of the term "farm tract" has
been taken from the Farm Service
Agency regulations at 7 CFR Part 718.2.
In accordance with the provisions of
the Food Security Act, compensatory
mitigation will be required for activities
authorized by paragraph (a) of this NWP
to fully offset losses of non-tidal
wetlands. District engineers will
determine on a case-by-case basis if .
compensatory mitigation is necessary to
offset losses of waters of the United
States resulting from activities
authorized by paragraphs (b), (c), and
(d) of d-iis NWP to ensure that diose
activities result in minimal adverse
effects on the aquatic environment.
NRCS and the Corps, in cooperation
with EPA, FWS, and NMFS, wil;
develop joint, compensatory mitigation
guidance to provide consistency in
compensatory mitigation requirements
necessary for the implementation of
NWP 40. Since the proposed
modification of NWP 40 is intended to
have national applicability, it is
impractical to modify the NWF; to be
consistent with local minimal effects
criteria established regionally under the
Farm Bill. This NWP is applicable in all
non-tidal wetlands, not just farmed
wetlands. The conversion of waters of
the United States to another use is not
exempt under Section 404 (f) of the
Clean Water Act, which makes these
modifications to NWP 40 necessary to
satisfy the requirements of Section 404.
^ Activities Authorized by NWP 40: One
commenter supported the intent of the
proposed modification, but stated that
die additional activities.should be
authorized by another NWP, not by
modifying the existing NWP 40. •
Another commenter stated that a
separate NWP should be issued to
audiorize the installation of drainage
tiles and drainage ditches, and that the
structure of this new NWP should be .
more like the proposed NWP for
residential, commercial, and
institutional activities. A commenter
suggested that NWP 39 should be used
instead of NWP 40 to autiiorize
discharges in waters of the~United States
to increase agricultural production. One
commenter recommended limiting the
NWP to maintaining farm acreage, not
expanding productive farm area. Two
commenters requested the removal of
mechanized landclearing from the list of
activities authorized by the NWP,
stating dial only activities in cropland
should be authorized by the NWP. Two
commenters stated that mechanized
landclearing should be considered
exempt under Section 404(f)(l) of the
Clean Water Act and not included in the
NWP. One commenter stated that the
proposed modification co'NWP 40
illegally brings two Farm Bill
exemptions into the Federal wetlands
program, namely "categorical minimal
effects" and "minimal effects
mitigation."
We disagree that there should be a
separate NWP for activities that increase
agricultural production. We believe that
it is more appropriate to modify NWP
40. which previously authorized only
the construction of building pads and
foundations for farm buildings in
farmed wetlands. The purpose of die
proposed modification of NWP 40 is to
authorize all activities for increasing
agricultural production and
constructing farm buildings. By
including all of these activities in a.
single NWP, there will be less confusion
for the regulated public and district
engineers will be better able to assess
die adverse effects on the aquatic
environment for single and complete
projects. We are proposing to make the
modifications to NWP 40 similar to die
proposed NWP 39 by utilizing indexed
acreage limits and by making both
NWPs applicable to non-tidal wetlands,
excluding non-tidal wetlands adjacent
to tidal waters. The indexed acreage
limit for NWP is applicable only for
discharges resulting in the loss of
playas, prairie potholes, and vernal' •
pools, with a maximum acreage limit of
1 acre. We-are proposing to utilize a
simple 2 acre limit for discharges into
. ouier types of non-tidal wetlands to
increase agricultural production. The
proposed modification of NWP 40 has a
smaller maximum acreage limit (i.e., 2
acres) than NWP 39 (i.e.. 3 acres). The .
lower maximum acreage limit for NWP
40 is necessary to ensure that the NWP
authorizes only activities with minimal
adverse effects on the aquatic
environment, because district engineers
will not receive notifications for many
activities authorized by this NWP.
Division and district engineers cannot
impose regional or case-specific
conditions on paragraph (a) of this
NWP, so diat NRCS can implement this
part of NWP 40 consistently diroughout
the country. In addition, district
engineers cannot revoke authorizations
for activities authorized by paragraph (a)
of NWP 40 on a case-by-case basis, but
division engineers can revoke the
provisions of paragraph (a) of NWP 40
within a state, geographic region, or a
particular waterbody. However, regional
conditions-can be added to paragraphs
(b), (c), and (d) of NWP 40, since the
Corps is responsible for reviewing these
activities. We have changed the
applicable waters for the proposed
modification of NWP 40 to be consistent
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v. rh most of the new N'APs. Proposed
V.V P 39 cannot be used to increase
-Xrtcuiturnl production inscead ot'N'WP
40, because NWP 39 specifically
luthcrizes only building pads and
attendant features for residential.
Commercial, and institutional
'ievelopments. Activities that increase
Agricultural production are not included
in N'.VP 39, although the construction of
.1 farm house used as a residence on a
farm may be authorized by N'WP 39.
Mechanized landclearing may result
in a discharge of dredged or fill'material
into waters of the United States and
require a Section 404 permit. We
disagree that the NVVP should be limited
to areas currently used as cropland. It
would be Inequitable to agricultural
producers to limit use of the NVVP only
to those areas currently used for
agricultural production. Mechanized
landclearing is not exempt under
Section 404(f)(l) if it converts a water of
the United States into a use to which it
was not previously subject, such as the
mechanized landclearing of a forested
wetland to convert it into cropland (see
Section 404(f)(2) of the Clean Water
Act).
Categorical minimal effect
determinations and minimal effects
mitigation are provisions of the 1996
Farm Bill and 1985 Food Security Act.
The categorical minimal effects
determination is not an exemption from
the permit requirements of Section 404
of the Clean Water Act. It merely allows
the landowner to maintain USDA farm
program eligibility for activities that
convert a wetland to increase
agricultural production, provided the
activity has minimal effects on the
hydrological and biological functions of
the wetlands in the vicinity.
One commenter requested
clarification of the NVVP to state that it
authorizes activities for the purposes of
improving production on existing
agricultural land, because the
commenter believes that the proposed
wording of the NWP allows conversion
of land not previously used for
agricultural purposes. Another
commenter recommended that, in
addition to activities regulated under
the National Food Security Act Manual
(NFSAM). those activities considered
exempt under NFSAM (i.e.. where the
land Is not currently in agricultural
production) such as die construction of
grassed waterways, storage facilities,
and Impoundments should be
authorized by the NWP. One commenter
recommended that the NWP authorize
the construction of farm ponds, when
they are subject to the recapture
i he proposed modification of NVVP
40 authorizes discharges of dredged or
fill material into non-ticjal waters of the
United States, excluding non-tidal
wetlands adjacent to tid^l waters, for the
purpose of increasing agricultural
production, including areas not
currently used for agricultural .
production. This NWP authorizes the
construction of grassed ^vaterways,
storage facilities, and impoundments in
non-tidal wetlands, provided their
purpose is to increase agricultural
production. In certain circumstances.
the construction of farmj ponds is
exempt from Section 404 permit
requirements. The proposed
modification of this NWP authorizes the
construction or expansion of farm ponds
used for agricultural purposes (e.g.,
irrigation ponds) that are not eligible for
the Section 404(f) exemption, if the farm
ponds are constructed in non-tidal
wetlands, excluding non-tidal wetlands
adjacent to tidal waters, and do not
involve discharges of dredged or fill
material into stream beds or other open
waters. The only activity authorized by
this NWP in'open waters is the
relocation of non-tidal streams that have
been channelized as drainage ditches.
The construction of farm ponds in
stream beds or the construction of
ponds for purposes other than
increasing agricultural production may
be authorized by other NWPs, a regional
general permit, or an individual permit.
Scope of the NWP: A number of
commenters recommended limiting the ,
NWP only to wedands that are currently
frequently cropped: Two! commenters
suggested that the NWP should
authorize discharges only in isolated
wetlands and should not'authorize
draining of wetlands. Several
commenters stated diat agricultural
activities in naturally vegetated playas,
prairie potholes, and vernal pools
should not be included in the NWP.
Limiting the scope of applicable
waters of the proposed modification of
this NWP only to frequently cropped or
farmed wetlands would be inequitable
to farmers, when compared to the
applicable waters for NWP 39. District
engineers will monitor the use of this
NWP to ensure that it authorizes only
diose agricultural activities in non-tidal
waters of the United States, excluding
non-tidal wetlands adjacent to tidal
waters, that result in minimal
cumulative adverse effects on the
aquatic environment. District engineers
will receive notification for discharges
into non-tidal wedands by non-
participants in USDA programs if the
discharge results in the loss of greater
buildings, and/or the relocation of
greater than 500 linear feet of existing
serviceable drainage ditches constructed
in non-tidal streams. These notifications
will be reviewed by District Engineers to
ensure that the proposed work will
result in minimal adverse effects on the
aquatic environment. We have not
removed the specific provisions relating
to playas, prairie potholes, and vernal
pools to ensure that discharges into
those types of non-tidal wedands do not
result in more than minimal adverse
effects on the aquatic environment. To
ensure that the provisions for playas,
.prairie potholes, and vernal pools are
implemented accurately for those
wetland types, we are proposing
definitions for these terms in die
"Definitions" section of the NWPs. The
proposed definitions are based on
geographic, hydrological, and vegetation
characteristics. The proposed
definitions were derived from
information from technical sources on
identifying and delineating wedands.
We are proposing to modify die
applicable scope of waters for NWP 40
from all non-tidal waters of die United
States, as proposed in the July 1,1998,
Federal Register notice, to non-tidal
waters, excluding non-tidal wedands
adjacent to tidal waters, to make it
consistent with most of die new-NWPs.
Acreage limits: Comments on acreage
limits for die proposed modification of
this NWP are divided into two
categories. One category addresses the
basis for determining acreage limits for
a single and complete project (i.e.,
whether NWP 40 should apply to one
entire farm or to a single farm tract). The
odier category of comments addresses
die maximum acreage loss.authorized
by this NWP.
Two commenters favored die use of
die term "farm" to define die single and
complete project for die NWP..One
commenter objected to die use of "farm"
in the NWP, stating that a person who
owns more than one farm could use die
NWP at each farm for die maximum
acreage limit. One commenter stated
that die proposed definition of "farm" is
confusing and would unfairly restrict
die use of NWP 40. A few commenters
stated that acreage limits should not be
linked to farm size. One of these
commenters objected to basing die
acreage limit on die Internal Revenue
Service's definition of a "farm" because
NRCS personnel would have to review
copies of die landowner's tax returns to
verify die number of tracts widi die
farm. This commenter recommended
that die Corps determine single and
complete projects for NWP 40 based on
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3931.
suggested applying the acreage limit to
.'he individual USDA field number or
the individual parcel. One comm.enter
requested diat the aggregate acreage
limit apply only to the property, not the
farmer. One commenter advocated the
use of "farm tracts" forihis NWP
because the farm tract, noc the farm, is
rhe basic unit of land ownership. This
commenter stated that many farms
consist of different tracts geographically
separated from each other. Farm tracts
remain constant in size and
configuration, but may be sold,- leased,
or traded between farms." A couple of
commenters opposed die use of "farm
tracts" to determine die acreage limit of
NWP 40. One of diese commenters
reasoned that the use of farm tracts
would result in substantial loss?', of
wetlands because of multiple use of die
NWP by a large farm operation that
owns many farm tracts.'One commenter
stated that impacts to waters of the
United States are not dependent on-farm
size.
One of die objectives of die
Administration is to make the Federal
wetlands programs fair, flexible, and
effective. Basing die single and
complete project on Internal Revenue
Service reporting of farms for the .
proposed modification of NWP 40
results in unfair restrictions on
agricultural producers compared to
residential, commercial, and
institutional developers. Developers
often own more than one parcel of land
' and may have several development
projects occurring at the same time. The
Corps considers each development a .
single and complete project, as long as
each development has independent •
utility. Each development can qualify
for separate NWP authorization even
Uiough the land may be owned by die •
same developer, if die proposed work
meets the terms and conditions of the-
NWP and if die individual or
cumulative adverse effects on die
aquatic environment are minimal. We
are proposing to base the single and
complete project and indexed acreage
limit of NWP 40 on farm tract size,
instead of farms. The use of farm tracts
for NWP 40 provides equitable
treatment to agricultural producers, and
each farm tract would be considered a
single and complete project for die
purposes of the NWPs.
Several commenters stated dial the
proposed acreage limits are too high.
Suggested acreage limits were 1, lh, l/*,
and Vio acre. A few commenters
suggested higher acreage limits. Several
commenters stated diat die proposed 3
acre limit is adequate. In die July 1,
1998, Federal Register notice, we
requested comments on the use of a
simple acc|ag|;_Iimit versus'|,slitfing
scale tor diis ftWP. iMost commenters
opposed the use of a sliding scale or
indexing to determine the acreage limit
for this NWP. One of diese commenters
stated that the indexing scheme
proposed in the July 1, 1998, Federal
Register notice is too burdensome,
confusing, and without ecological
justification. Two commenters favored
the use of a sliding scale, but
recommended basing die sliding scale
on a percentage, either as 5% of the
wetlands on a farm regardless of farm
size or 2% of die project size, if die
project is greater than 5 acres in size.
A number of commenters stated that
.die acreage limit for NWP 40 should be
die same as for die NWP for residential,
commercial, and institutional.
development activities (i.e., NWP 39).
One of diese commenters stated that the
acreage limits proposed in die July 1,
1998, Federal Register notice are
inequitable compared to the acreage
limits developers are subject to in NWP
39. particularly to farmers who own
smaller farms. This commenter also said
that using acreage limits and farm size
as a substitute to determine minimal
adverse effects has not been applied in
a consistent manner between similar
activities, such as development or
agricultural projects.
Based on our review of comments
received in response to die July 1. 1998,
Federal Register notice, and to provide
agricultural producers and residential.
commercial, and institutional
developers widi equitable NWPs, we are
. proposing to utilize a simple 2-acre
limit for discharges into noil-tidal
wedands and an indexed acreage limit
for discharges into play as, prairie ,
podioles, and vernal pools that are
authorized by paragraphs (a) (for USDA
program participants) or (b) (for non-
participants in USDA programs) of NWP
40. The indexed acreage limit for playas,
prairie podioles, and vernal pools has a
maximum limit of 1 acre per farm tract.
A lower maximum acreage limit (i.e., 2
acres per farm tract) was selected to
ensure dial die NWP audiorizes
activities only widi minimal adverse
effects on die aquatic environment
because preconstruction notification to
die District Engineer is not required for
activities authorized by paragraph (a) of
diis NWP (unless the project proponent
is also requesting authorization for die
construction of foundations for farm
buildings or die relocation of greater
than 500 linear feet of drainage ditches
constructed in non-tidal streams). We
are proposing a 2-acre limit for
discharges into non-tidal wetlands
(except for playas, prairie podioles, and
vernal pools) to increase production.
For the proposed modification of NWP
40, the indexed acreage limit for
discharges into playas, prairie potholes.
and vernal pools is based upon 1%
percent of die farm tract size, with a
base limit of Vio acre. The maximum
acreage limit of 1 acre is achieved for
farm tracts 90 acres or greater in size.
We believe that the formula for die
indexed acreage limit will be easy to
use. An indexed acreage limit helps
encourage avoidance and minimization
of losses of waters of die United States.
One commenter opposed die use of an
aggregate acreage limit for NWP 40.
stating diat die requirement for
mitigation replaces the need for an
acreage limit for activities audiorized by
die NWP. A couple of commenters said
that die Corps cannot enforce die •
acreage limits of this NWP because land
is reapportioned among farm tracts on
an annual basis and die Corps does not-
have access to die farm tract history
necessary to ensure compliance widi die
acreage limits.
The acreage limit for NWP 40, as for
all other NWPs, is based on a national
determination that die NWP will
audiorize most activities that have
minimal adverse effects, on die aquatic
environment, individually or
cumulatively. For certain activities,
preconstruction notification is required
to allow district engineers to review
diese activities on a case-by-case basis
and determine if diey will result in
minimal adverse effects on die aquatic
environment, individually or
cumulatively. Compensatory mitigation
cannot be used to increase die acreage
limit for an NWP, but discharges of
dredged or Fill material into waters of
die United States to construct
compensatory mitigation are not
included in die calculation of acreage
loss of waters of die United States to
determine if the single and complete
project exceeds die acreage limit,of
NWP 40. It is our understanding that
farm tract designations change only
when die land is subject to a real estate
transaction, such as when a farmer
subdivides a farm tract to sell a part of
diat farm tract to anodier person.
Paragraph (a) of the proposed NWP 40
modification published in die July 1,
1998, Federal Register notice
audiorized activities diat qualify for a
minimal effects exemption under die
Food Security Act and National Food
Security Act Manual, provided the
discharge does not cause die loss of
greater than 1 acre of non-tidal wedands
or greater than Va acre of playas, prairie .
podioles, and vernal pools. One
commenter supported the inclusion of
minimal effects determinations in NWP
40. Two commenters opposed this
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Federal Register/Vol. 64. No. 139/Vyednesday. July 21. 1999/Notices
provision of ?he NWP. One commenter
".rated that :he farm owner should not
have co obtain an authorization from
borh the Corps and N'RCS for work in
wetlands. This commenter believes that
fhe Corps should make die minimal
elfects determination and that USDA
program participants should get an
.V.VP audiorization before they can get
a minimal effects determination.
Another commenter requested that die
minimal effects determination should
include non-participants in USDA
programs. One commenter stated that it
is Inappropriate for the Corps to apply .
acreage limits under diis part of the
NWP to activities diat receive minimal
effects determinations. Another
commenter recommended that this
portion of die NWP should be removed.
and replaced widi regional conditions.
One commenter belli- ^ that NRCS
does not currently monitor the indirect
or cumulative adverse effects of projects
thac are eligible for minimal effects
determinations, and diat this is contrary
to the Clean Water Act's general permit
criteria. This commenter stated that the
minimal effects determination does not
assess the value for a watershed. Three
commenters recommended that NRCS
should receive concurrence from die
FWS and/or NMFS prior to Issuing a
minimal effects determination.
We are proposing to modify this NWP
to authorize discharges in non-tidal
wetlands, excluding non-tidal wetlands
adjacent to tidal waters, by USDA
program participants and non-
participants in USDA programs to
increase agricultural production on a •
farm tract. For USDA program,
participants, die permittee must'obtain
an exemption or minimal effects with
mitigation determination from NRCS
and implement an NRCS-approved
compensatory mitigation plan diat fully
offsets wetland losses. For non-
participants In USDA programs,
notification to die District Engineer is
required for discharges resulting in die
loss of greater than 1A acre of non-tidal
wetlands to increase agricultural
production. The District Engineer will
determine on a case-by-case basis if die
activities audiorized by paragraph (b)
will result In minimal adverse effects on
the aquatic environment. Compensatory
mitigation will normally be required for
activities that require notification to
ensure that diey result in minimal
adverse effects on the aquatic
environment. The 2 acre limit for
discharges into non-tidal wedands and
the indexed acreage limit for discharges
into playas, prairie podioles, and vernal
nortlc \^H1 *>n«:itr(a fhaf fho MWP
adverse effects on the Aquatic
environment. District engineers will
monitor die use of this NWP through
postconstruction reports and
preconstruction notifications submitted
to the District Engineer. If the activities
authorized by NWP 4Q result in more
than minimal cumulative adverse effects
on the aquatic environment, division
engineers cari suspend the use of this
NWP in die watershed or Corps district.
Paragraph (b) of die proposed
modification of NWP 40 published in
the July 1, 1998, Federal Register
authorized activities in non-tidal
wedands, except for naturally vegetated
playas, prairie podioles, and vernal
pools for the purposes' of increasing
agricultural production. Two
commenters recommended using a
simple acreage limit, but two odier
commenters favored using a sliding
scale. Two commenters opposed the
proposed 3 acre limit, because diey
believe it is too high. One commenter
stated that die proposed indexed
acreage limit was too Ipw, especially if
mitigation is required.'One commenter •
recommended a 1 acre limit and another
commenter recommended a Vs acre
limit. One commenter (recommended
basing die acreage limit on a sliding
scale of 2% of die entire property, with
a maximum of 3 acres.; One commenter
stated that this part of'the NWP should
apply to all non-tidal wetlands, widi no
exclusions for playas, prairie potholes,
and vernal pools.
We are proposing to'modify NWP 40
to authorize agricultural activities in all •
non-tidal wedands, excluding non-tidal
wetlands adjacent to tidal waters. For
discharges into non-tidal wetlands to
increase production, we are proposing a
simple acreage limit of 2 acres and an
indexed acreage limit for discharges into
playas, prairie podiolejs, and vernal
pools. The indexed acreage limit for
discharges into playas] prairie podioles,
and vernal-pools will have a maximum
acreage limit of 1 acre.|The acreage limit
for the proposed modification of diis
NWP will be based on'farm tracts.
Paragraph (c) of the proposed
modification of NWP 40 published in
die July 1. 1998, Federal Register
audiorized activities in naturally
vegetated playas, prairie podioles, and
vernal pools for die purposes of
increasing agricultural production. Two
commenters concurred widi the
proposed acreage limit of 1 acre. One
commenter objected to die lower
acreage limit for activities in playas,
prairie podioles, and vernal pools. One
commenter stated that this portion of
the NWP should apply only to
from mrtHT/ r-rrmrtgrt nlat/oc rtra^Ho
naturally-vegetated wetlands should not
be included in the NWP. Anodier
commenter recommended including
pocosins in diis paragraph of die NWP.
A commenter stated diat the proposed 1
acre limit is too high. One'commenter
believes diat a higher acreage limit
should be used because die permittee is
required to provide mitigation. Two
commenters recommended using a
simple acreage limit instead of a sliding
scale acreage limit.
As previously discussed, we are
proposing to modify NWP 40 to include
playas, prairie potholes, and vernal
pools with an indexed acreage limit.
Construction of Farm Buildings:
Paragraph (d) of die proposed
modification of NWP 40 contained die
original provisions of NWP 40 and
authorized discharges into wetlands,
excluding playas, prairie potholes, and
vernal pools, that were in agricultural.
production prior to December 23, 1985, •
Tor the construction of building pads for
farm buildings, with an acreage limit of
1 acre.
One commenter recommended
increasing the acreage limit to 2 acres.
Another commenter recommended an
acreage limit of 1/4 acre, to be
consistent widi die acreage limit
proposed for NWP 29 in die July 1,
1998, Federal Register notice. One
commenter stated diat nori-agricultural
buildings such as houses should not be
audiorized by diis NWP. Three
commenters stated diat die December
23, 1985, date should be removed from
diis -part of die NWP, based on die
rationale that any area under
agricultural production prior to diat
date should not.be considered a
jurisdictional wetland and subject to the
limitations of die NWP.
We are proposing to remove die
exclusion for playas, prairie podioles,
and vernal pools from diis part of NWP
40. This provision is now in paragraph
(c) of die proposed modification of diis
NWP, with a requirement diat die
permittee notify the District Engineer in
accordance widi General Condition 13.
We are proposing to maintain die 1 acre
limit for diis activity. One acre is
'adequate for die construction of most
farm buildings. This acreage limit need
not be consistent widi die acreage limit
of NWP 29, since farm buildings are
constructed for die operation of die
farm, not for residences. Farm buildings,
such as barns, usually must be larger
than houses to fulfill dieir purposes. In
addition, diis paragraph of NWP 40
encompasses a much smaller geographic
scope than the other provisions of NWP
40, since it is limited to farmed
•\xfoHanHc Paratrranh (r\ nf MWP 4fl
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Federal Register /Vol. 64. No. 1397 Wednesday. July 21,
1999/Notices
39317
weriands for the construction of
huilding pads for farm buildings,
•-yheroas NWP 29 authorizes discharges
of dredged or fill material into all non-
tidal wetlands,. This NWP does not
'authorize the construction of non-
ngricukural buildings, such as
residences. We do not agree that the
December 23. 1985. date should be
removed from the NWP because there
are jurisdictional wetlands that have
been used for agricultural production
since that date. Although they are
considered farmed wetlands, they are
still waters of the United States and
. subject to Clean Water Act Section 404
permit requirements.
Drainage Ditch Relocations:
Paragraph (e) of the proposed NWP 40
modification published in the July 1,
1998. Federal Register notice
authorized the relocation of existing
serviceable drainage ditches and
previously substantially manipulated
intermittent and small perennial
streams* Two commenters supported the
proposed provision of the NWP. Several
commenters opposed tills provision.
Two commenters stated that the
relocation of streams or drainage ditches
may result insubstantial adverse effects
on the aquatic environment. One
commenter recommended modification
of this provision to limit the work only
to the relocation of currently serviceable
drainage ditches or manipulated streams
that are not so degraded as to require •
reconstruction. Another-eommenter
stated that it is unclear which other
waters ofahe United States are included
in this paragraph of the NWP. Two
commenters suggested that this'
condition should not apply to perennial
streams. Two commenters requested
that the Corps define the term
"substantially manipulated stream."
- The purpose of this provision of the
proposed modification of NWP 40 is to
authorize relocation of drainage ditches
constructed in waters of the United
States to increase agricultural
production. Based on comments
received in response to our proposed
definition of the term "drainage ditch,"
- and in an effort to clarify this provision
of NWP 40, we are changing the
language of this paragraph and
designating it paragraph (d). Paragraph
(d) of the proposed modification of
NWP 40 authorizes discharges of
dredged or fill material to relocate
existing serviceable drainage ditches
constructed in non-tidal streams. The
relocation of existing serviceable
drainage ditches constructed in non-
tidal wetlands can be authorized by
paragraphs (a) or (b) of this NWP.
Notification to the District Engineer is
required for the relocation of greater
than 500 linear feet, of drainage ditches
construaedjjri non-tidai; §|rea,ms. Since.
drainagTdifthes can be cons trusted in
wetlands or by channelizing perennial,
intermittent, or ephemeral stream beds
to improve drainage, we have removed
the phrase "* * * and previously
substantially manipulated intermittent
and perennial streams" and replaced it
with "* * - constructed in non-tidal
streams'.' to reflect the fact that drainage
ditches may have been constructed in
streams. As a result of this change, it is
unnecessary to provide a definition for
the term "substantially manipulated
stream." Relocation of drainage ditches
constructed in uplands does not require
a Section 404 permit because these
- ditches are not waters of the United
States, except in certain circumstances.
We do not believe that the relocation
of existing serviceable drainage ditches
constructed in waters of the United
States will result in more than minimal-
adverse effects on the aquatic
environment. The Cfefm "existing
serviceable drainage ditches"
adequately describes the limitation of
paragraph (d) to only those drainage
ditches that do not require
reconstruction due to abandonment and
neglect.
One commenter asked why this
provision was included in the NWP,
.since ditch maintenance is exempt
under Section 404(f) of the Clean Water
Act. One commenter stated that other
NWPs should be used to authorize work
in rivers and streams on agricultural
lands. One commenter said that a
provision should be added to this
paragraph requiring the land to remain
in agricultural use if the ditches are
maintained. Another commenter
recommended adding a 500 linear foot
limit to this part of the NWP.
The Section 404(f) exemption for
drainage ditch maintenance does not
apply to the relocation of drainage
ditches. To qualify for the exemption,
the landowner cannot change the
"location of the drainage ditch or modify
it beyond the original design
dimensions and configuration. Since the
relocation of drainage ditches
constructed in non-tidal streams can
increase agricultural production, it
would be inappropriate to require the
use of other NWPs to authorize this
activity. Other activities in waters of the
United States on agricultural lands,
such as bank stabilization, may be
authorized by other NWPs, regional
general permits, or individual permits.
We cannot add a provision to paragraph
(d) requiring the landowner to keep the
land in agricultural use if the ditches are
relocated because such a provision is
beyond the Corps regulatory authority
and unenforceable. We do not believe
that is necessary to impose a 500 linear
foot limit on relocating drainage ditches
constructed in waters of the United
States because district engineers will
receive aPCN for the relocation of
greater than 500 linear feet of drainage
• ditches constructed in non-tidal streams
to determine if the proposed work will
result in minimal adverse effects on the
aquatic environment and can qualify for
authorization under this NWP.
Notification: We proposed requiring
notification for activities that cause the
loss of greater than V3 acre of non-tidal
. wetlands or the relocation of greater
than 500 linear feet of drainage ditches
. and previously substantially
manipulated intermittent and small
perennial streams. One commenter
recommended a 1 acre PCN threshold.
Another commenter recommended a 'A
acre PCN threshold, with agency
coordination. One commenter requested
that PCNs should be required for all
activities authorized by this NWP.
Another commenter stated that the PCN
requirements for NWP 40 should be the
same as for NWP 39. For ditch and
stream relocations, recommended PCN
thresholds included 150, 200, and 3,000
linear feet. One commenter requested
agency coordination for all wetland
losses of greater than l/3 acre arid all
ditch and stream relocations.
Notification to the District Engineer is
required" for discharges by non-
participants in USDA programs to
increase agricultural production that
result in the loss of greater-than 'A acre
of non-tidal wetlands, the construction
of building pads for farm buildings, and
for the relocation of greater than 500
linear feet.pf drainage ditches
constructed in non-tidal streams. For-
USDA program participants, notification
to the District Engineer is required if the
proposed work involves activities iri
non-tidal wetlands and the relocation of
greater than 500 linear feet of drainage
ditches constructed in non-tidal streams
or the construction of building pads for
farm buildings, agency coordination
will be conducted for activities
requiring notification to the District
Engineer if the proposed work results in
the loss of greater than 1 acre of waters
of the. United States.
Mitigation: Paragraphs (b) and (c) of
the proposed modification of NWP 40
published in the July 1, 1998, Federal
Register notice required submission of a.
mitigation plan to fully offset wetland
losses. One commenter stated that the
Corps should not require avoidance and
minimization for potential losses of
frequently cropped, previously altered
farmed wetlands, because mitigation
sequencing is not required under the
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Firm Bill. In orher words, the 404(b)(l)
guidelines are not applicable to farmed
wetland conversions and compensatory
mitigation will be required by NRCS. A
few commencers recommended that
both the Corps and NRCS approve the
required compensator;/ mitigation. Two
commenters stated diat the required
compensatory mitigation should ce
reviewed by all agencies, not just NRCS.
One commenter requested that any
compensatory mitigation requirements
for this NVVP be die same as for all
Corps permits.
Although mitigation sequencing may
not be required under the 1996 Farm '
BUI. discharges of dredged or fill
material into waters of the United
States, including farmed wetlands.
require a Section 404 permit, which
may be audiorized by NWPs. General
Condition 19 of the NWPs requires the
permittee to avoid and minimize
impacts to waters of die United States
on-site to the maximum extent
practicable. Compensatory mitigation is
required for all activities authorized by
paragraph (a) of diis NWP.' For activities
requiring notification to the District
Engineer, compensatory mitigation may
be required to ensure that activities
authorized by diis NWP result in
minimal adverse effects on the aquatic
environment. For the purposes of this
NVVP, compensatory mitigation used to •
satisfy the requirements of NRCS will be
accepted by the Corps. To provide
consistency for compensatory mitigation
requirements and reduce confusion,
NRCS and the Corps will develop, in
cooperation wtth EPA. FWS and NMFS.
joint mitigation guidance for this NWP.
One commenter expressed concern
that compensatory mitigation
requirements will decrease the available
amount of farm land and requested that
the Corps annually report die amount of
farm land used as compensatory
mitigation. Two commenters supported
the requirement to fully offset losses of
waters, but stated dial die NWP should
require a minimum 1:1 replacement
ratio. Another commenter said that
compensatory mitigation should be
limited to die enhancement, restoration,
and creation of aquatic resources and
exclude preservation, because die Farm
Bill does not authorize preservation and
NRCS policy does not allow
preservation for Swampbuster purposes.
We do not believe that the
compensatory mitigation requirements
of this NWP will substantially decrease
die amount of available farm land
because landowners have die option of
avoiding impacts to waters of the United
States, which would decrease the
amount of land needed for wedand
compensatory mitigation is often
conducted on farm land with marginal
productivity, due to soij characteristics
or wetness, that has the: highest
potential for wetland restoration.-We
disagree diat preservation should be
prohibited as a means of providing
compensatory mitigation for activities
thac require notification; to the Corps.
Preservation is an extremely important
method for protecting rare and high
value waters of the United States from
future losses. j
Use of NWP 40 with Other NWPs: One
commenter stated that the portion of die
preamble to the proposed modification
of NWP 40 published in the July 1,
1998, Federal Register that prohibits the
future use of NWP A (i.e.. NWP 39) if
the farm is developed by die farmer or
sold, should be included in the text of
NWP 40. However, this commenter
questions the Corps ability to monitor
compliance with this provision.
Another commenter suggested that NWP
40 should not be used with NWPs 39 or
44. One commenter recommended a 3
acre stacking limit. Anodier commenter
suggested that any use of this NWP with
other NWPs should be subject to the
lowest acreage limit allowed for any of
the NWPs. i
We have incorporated into NWPs 39
and 40 die provision addressing die
future use of NWP 39'on die farm if that
farm or portions of die farm are
converted to residentialt commercial, or
institutional developments by the
farmer or sold to a developer. The
indexed acreage limit of paragraph (a) of
NWP 39 cannot be exceeded, based on
die project area and die'subdivision
provision of NWP 39. The Corps will
rely on its records to track the use of
NWPs 39 and 40 for a particular parcel
of land. The use of more dian one NWP
for a single and complete project is
addressed in the proposed modification
of General Condition 15.
Other Comments: A number of
commenters objected to; allowing the
use of NWP 40 on a farm every 5 years,
because it would result in substantial
cumulative losses of waters. One
commenter recommended that die NWP
should be used only once per project
and if the land is no longer used for
agricultural productionithe fill should
be removed and die new use
repermitted. Several commenters
believe diat NWP 40 should be subject
to die same conditions as the NWP for
residential, commercial, and
institutional development activities and
die NWP for mining activities. One
commenter recommended including a
reference to the Memorandum of
Agreement between die| Corps and
One commenter objected to this NWP,
stating that it does not address indirect
impacts to waters caused by converting
wetlands to agricultural use and cited
water quality problems diat can be
caused by ditching activities. Another
commenter recommended diat die NWP
include a requirement for vegetated
buffers around streams on farm land, to
filter out pollutants and nutrients and
prevent erosion.
We have removed the provision
allowing the use of NWP 40 on a farm
every five years, to make it more
consistent with other NWPs. Restricting
die use of NWP 40 to a single and
complete farm operation will avoid
substantial losses diat could occur due
to repeated use of this NWP every 5
years. We disagree with the
recommendation that land no longer in
agricultural use should be restored and
any new uses repermitted. Such a
requirement is impractical, places
unnecessary burdens on die regulated
public and the Corps, and provides no
benefits to the aquatic environment.
Former wetlands on agricultural lands
may be used for aquatic habitat
restoration, including mitigation banks
and in lieu fee programs.
We have attempted to provide
consistency between proposed NWPs
39, 40, and 44, but due to the
differences in the types of activities
authorized by diese NWPs and their
potential adverse effects on the aquatic
environment, it is impractical to make
the.conditions for these NWPs identical.
We do not believe that it is necessary to
cite die Memorandum of Agreement
between die Corps and NRCS
concerning wetland delineations in this
NWP, partly because it is currently
undergoing revisions and it is not
essential to die implementation of NWP
40. In accordance widi the proposed
modification of General Condition 9,
district engineers can require a water
quality management plan for activities
audiorized by diis NWP, if die 401
certification does not require such a
plan or address potential adverse effects
to water quality. Both die water quality
management plan, and General
Condition 19 allow the District Engineer
to require, as compensatory mitigation,
die establishment and maintenance of
vegetated buffers adjacent to streams.
This NWP is subject to proposed
General Conditions 25, 26, and 27,
which will reduce its applicability.
General Condition 25 prohibits die use
of this NWP to authorize discharges into
designated critical resource waters and
wedands adjacent to those waters.
General Condition 26 prohibits die use
of diis NWP to audiorize discharges
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39319
acre of impaired waters, including
adjacent wetlands. NWP 40 activities
resulting in the loss of 1 acre or less of
impaired waters, including adjacent
wetlands, are prohibited unless
prospective permittee demonstrates that
the activity will not result in further
impairment of the waterbody. General
Condition 27 prohibits the use of NWP
40 to authorize permanent, above-grade
fills in waters of the United States
within the 100-year floodplain.
In response to a PCN, district
engineers can require special conditions
on a case-by-case basis to ensure that
the adverse effects on the aquatic
environment are minimal or exercise
discretionary authority to require an
individual permit for the work. To allow
NRCS to implement paragraph (a) of this
NWP consistently throughout the
country, division engineers cannot add •
regional conditions to paragraph (a) of
NW-P 40. However, division engineers .
can add regional conditions to
paragraphs (b), (c), and (d) of NWP 40,
since'the Corps is responsible for
reviewing these activities.
41. Reshaping Existing Drainage Ditches
' Ir$ the July 1, 1998, Federal Register
notice, we proposed a new NWP
(designated as NWP F) to authorize
discharges of dredged or fill material
into non-Section 10 waters of the United
States for reshaping existing drainage
ditches constructed in waters of the
United States by altering the cross-
section of the ditch to benefit the
aquatic environment.
Comments both in support and in
opposition of this NWP were received,
but most commenters recommended .
conditions to minimize potential
impacts. Those in support of the NWP
believe that it would be acceptable withr
regional conditions or Section 401 water
quality certification conditions and that
it will provide oversight or enforcement
in order to reduce abuse in rural areas.
Comments opposing the NWP ranged
from no permit should be required at
all, as this is an activity which is
exempt from Section 404 regulation, to
all activities in. all ditch types should be
prohibited in order to prevent
degradation of aquatic resources. One
commenter stated that Corps regulation
of wet weather conveyances would be a
huge paperwork burden contributing
little to environmental quality. Several
commenters stated that it is not always
in the overall best interest of the aquatic
resource to attempt to achieve
improvements in water quality by
simply reshaping the banks of the
drainage ditch. Many commenters who
expressed opposition to the proposed
new and modified NWPs in general
stated that this.NWP was.an exception
•because it^o^d meet the; iginirBal
effect requirement.
Many comments regarding
jurisdiction were received. One
commenter requested a discussion on
jurisdiction as some Corps personnel
take jurisdiction over upland ditches
based on wetland parameters. Some
commenters requested the Corps further
clarify the distinction between
maintenance work and work that would
be audiorized by this permit. Some
commenters recommending modifying
the text of the NWP to exclude ditch
maintenance projects while odiers
recommended die new NWP include all
ditches that are man-made, regardless of
whether or not maintenance has been
performed. One commenter suggested
that permits should never be required
for minor drainage activities on
agricultural land and for the
maintenance of drainage ditches.
Several commenters stated that roadside
ditches are not waters of the United
States even if they contain wetland
vegetation. Many believe this permit
audiorizes work that is actually exempt
from regulation. Other commenters
proposed that the NWP should be
applicable in Section 10, including tidal
waters; as well. One commenter
suggested that all natural perennial
streams, channelized perennial streams,
and/or rechannelized perennial streams
should be excluded from this permit.
Some commenters said that the permit
should authorize the reconversion of
abandoned ditches, while others stated
that the Corps should stress that
abandoned ditches may not be
reconverted. Several commenters stated
diat this permit should provide,
authorization for reshaping obstructed
channels. One commenter said that the
permit should be rewritten to clarify
that open drainage ditches, Including
channelized streams, cannot be
considered abandoned as long as the
maintenance authority exists and as
long as all cropland draining to die
ditch has not been abandoned. Another
stated that diis permit should not be
used for streams that are called
"ditches" or in channelized portions of
streams diat convey surface runoff and/
orjgroundwater.
Several commenters believe the NWP
should be more inclusive and should
allow some realignment of die waterway
if it is beneficial to the aquatic
environment. One group recommended
that ditch relocation should be allowed
because when shopping centers are
renovated or expanded, because the
relocation of ditches is often the only
activity regulated by the Corps. Several
commenters recommended the permit
should allow for a change in centerline
location when the activity pertains to
roadside ditches where transportation
agencies are flattening the side slopes^
for safety purposes. Additionally, minor
relocation of the ditch could have as
much or more of a benefit on improving
water quality and should be allowed
under this permit. Some commenters
requested that deepening of ditches
should be included because some
ditches were originally dug widiout
enough grade to keep them from
accumulating excess sediment, Other
commenters stated dial deepening of
drainage ditches should not be allowed
beyond the original configurations due
to the resultant additional wedand
drainage. One cgmmenter suggested that
this permit should not be used to
audiorize diversion or drainage of
wedands or the expansion of the
drainage ditch size. And lastly, one
commenter recommended that this
permit be broadened to include all
reshaping diat might not be exempt as
maintenance.
Discharges associated witii the
maintenance of drainage ditches
constructed in waters of die United
States are exempt from regulation under
Section 404, provided the drainage
ditch is returned to its original
dimensions and configuration (see 33
CFR Part 323.4(a)(3)). However, the
modification or new construction of
drainage ditches in waters of die United
States requires a Section 404 permit.
Since the maintenance of drainage
ditches to dieir original dimensions and
' configurations is exempt from Section
404 permit requirements, die purpose of
die proposed NWP is to encourage
reshaping of ditches in a manner diat
provides benefits to the aquatic
environment. This NWP is limited to
reshaping currently serviceable drainage
ditches constructed in non-tidal waters
of the United States, excluding non-tidal
wetlands adjacent to tidal waters,
provided the activity does not change
the capacity or location of the drainage
ditch. We have changed the applicable
waters for diis NWP to make it more
consistent widi most of die proposed
NWPs. The centerline of the reshaped
drainage ditch must be in essentially the
same location as the centerline of the
existing ditch. The proposed NWP does
not audiorize reconstruction of drainage
ditches that have become ineffective
through abandonment or lack of regular
maintenance. This NWP audiorizes
discharges to grade the banks of ditches
at a gender slope than diey were
originally constructed for die purpose of
reducing erosion and decreasing
sediment transport down the ditch by
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trapping sediments. Shallower slopes
may increase the amount of vegetation
.ilohg the bank of the ditch, which can
decrease erosion, increase nutrient and
pollutant uptake by plants, and increase
the amount of habitat for wildlife. We
believe that the deepening and/or
widening of a ditch, allowing the
csnterline to be relocated, and allowing
abandoned ditches to be reconverted
could result in more dian minimal
Adverse effects on the aquatic
environment.
Several commenters suggested diis
permit should be removed from
consideration until questions
concerning the Tulloch Rule are
resolved, because a landowner does not
know if he or she is required to obtain
a permit for excavation activities or
reshaping existing ditches in wetlands
that involve only "incidental fallback."
The intent of this NWP is to audiorize
a certain activity that does not qualify
for the maintenance exemption and is
not for the purpose of increasing
drainage capacity. We believe that this
NWP should not be made more
Inclusive. The intent of this NWP is to
authorize those ditch reshaping
activities that involve more than
"Incidental fallback."
The proposed NWP may not be used
to relocate drainage ditches or to modify
drainage ditches to increase the area
drained by the ditch (e.g., by widening
or deepening the ditch beyond its
original design dimensions or
configuration) or to construct new
drainage ditches if the previous
drainage ditches have been neglected
long enough to require reconstruction.
This NWP does not authorize the
channelization or relocation of streams
to Improve capacity of the streams to
convey water. An individual permit,
another NWP, or a regional general
permit may authorize die construction
of new drainage ditches or die
reconstruction of drainage ditches. The
proposed NWP does not authorize the
maintenance or reshaping of drainage
ditches constructed in navigable waters
of the United States (non-tidal wetlands
that are adjacent to tidal waters are also
excluded). A Section 10 permit is
required for the maintenance or
modification of drainage ditches
constructed In navigable waters of the
United States. We believe that
modifying this permit to audiorize work
in Section 10 waters could result In die
authorization of activities that have
more dian minimal adverse effects on
the aquatic environment.
One commenter recommended that
NWP 27 should be expanded to include
this activity while another suggested
3. We do not agree that this activity is
similar enough to the activities
audiorized by NWP 27 to warrant its
inclusion in NWP 27. The purpose of
NWP 27 is to restore, enhance, and
create wetland and riparian areas and
restore and enhance»non-tidal streams
and open waters. The purpose of
proposed NWP 41 is to improve water
quality. NWP 3 does riot currently
authorize reshaping of drainage ditches,
constructed in waters of the United
States because this activity is not
maintenance or repair! NWP 3
authorizes only maintenance activities
with minor deviations! from the
previously audiorized-configuration;
reshaping drainage ditches typically
involves more uian minor deviations in
ditch cross s'ectional shape.
Many commenters Believe that diis
NWP will result in die destruction of
riparian habitat, specifically adjacent
plant communities, and degrade water
quality through die sidecasting of
excavated material into wetlands. One
commenter stated that the permit would
prevent die natural process that
increases wedand'acreag'e dirpugh
natural deposition of detritus and
sediment in natural cycles that create
wetlands. Odier commenters believe
diat diis NWP would cause the
degradation of salmon and odier
fisheries habitat through die removal of
woody debris and that this permit
would audiorize activities that reduce
the geomorphic "complexity" of a
stream causing it to become more
uniform and adversely affect some
fisheries. One commenter said that
activities authorized by this NWP will
have a detrimental effect on water .
quality due to a decrease in the velocity
of die stream and it is possible diat die
stability of die stream could be
compromised due to an unbalanced
width/depdi ratio. Several commenters
stated that die permit would result in
more rapidly draining farm files in die
Midwest, which would increase
scouring of banks and waterways and
degrade water quality! One commenter
said diat die permit should be modified
to state diat channel reshaping cannot
change the discharge rate or volume of
die ditch. I
To address concerns for vegetation
adjacent to drainage ditches that may be
removed as a result of die authorized
activity, we have added a second
notification requirement to die proposed
NWP. The prospective permittee must
notify the District Engineer if more than
500 linear feet of drainage ditch is to be
reshaped. District engineers can review
die proposed work and determine If die
clearing of adjacent vegetation will
effects on the aquatic environment. We
do not agree that the activities
audiorized by this NWP will disrupt the
natural creation of wetlands or result in
substantial degradation of aquatic
habitat in streams. It is important to
note that drainage ditch maintenance is
exempt under Section 404(0- If a stream
was channelized to improve drainage,
the maintenance of the drainage ditch
constructed in the stream is an exempt
activity. The purpose of this NWP is to
encourage landowners to maintain the ,
drainage ditches constructed in waters
of die United States in a manner that
benefits the aquatic environment in
most cases. Reshaping the drainage
ditch with flatter side slopes will
improve water quality and decrease die
velocity of water flowing dirough the
ditch. This NWP does not audiorize
modifications to die configuration of die
drainage ditch to increase die area
drained by die ditch. We believe that
die proposed NWP adequately-states
this requirement. For those activities
diat require notification, district
engineers can impose special conditions
on the NWP audiorization to ensure drat'
die work results in minimal adverse
effects or exercise discretionary
authority and require an individual"
permit.
Some commenters noted diat over
time, dirough natural processes, die side
slopes of ditches often become flatter
than they wee originally. In tiiose cases,
they say, it would not make sense to
require a permit to maintain existing
slopes, even if diey are not die original
slopes. This NWP does not require die
landowner to maintain existing slopes,
if diey- have eroded naturally.
Many commenters stated that this ,
NWP contains vague language and diat
many terms require clear definition in
die context of diis permit, especially
"maintenance," "modification."
"reconstruction," "regular
maintenance," "abandonment," and
"loss of serviceability." One commenter
stated the phrase "reshaping to benefit
die aquatic environment" means
significandy different things in different
parts of die country.
We do not agree dial definitions of die
terms' "maintenance," "modification,"
''reconstruction," and "regular
maintenance," need to be provided with
die proposed NWP. For die purposes of
diis NWP, die definitions of diese terms
are die same as die definitions in
common usage today. District engineers
will determine which ditch reshaping
activities constitute maintenance and
which activities constitute
reconstruction. District engineers will
determine when a particular drainage
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64. No. 139/Wednesday, July 21. 1999/Notices
39321
serviceability is considered to be the
point at which a ditch no longer
functions as a drainage ditch, and
reconstruction is needed.
Several commenters asked how the
original ditch conditions would be
determined and how the Corps would
distinguish between "reconstruction"
and "maintenance to original
dimensions." Some asked on what basis
it would be determined that the
proposed project would improve water
quality and how the area of wetland
drained by the original ditch would be
determined. Also, some commenters
questioned how one would determine
that the proposed channel shape would
not change discharge rate or volume.
These commenters also asked who
would be responsible for making these
determinations.
District engineers will determine
which activities constitute maintenance,
reshaping, or reconstruction. They will
use any available information to make
these determinations, including field
evidence. In general, changing the
configuration of the drainage ditch to v~y
slow water flow and increase vegetation
in the ditch will help improve water
quality because the plants and microbes
in the ditch will have more contact with
the water and remove more nutrients
and other compounds from the water.
Slower water flow rates will also
decrease the sediment load of the water.
The area drained by the ditch can be
determined by using available models.,
which consider factors such as soiLtype,
ditch depth, ditch width, etc. The
permittee may be required by the
District Engineer to- demonstrate that the
proposed ditch reshaping activity will
not increase the area drained by the
ditch. •
Another subject that generated many
comments is the definition of a drainage
ditch. One commenter stated that while
some drainage ditches were clearly
excavated, either though uplands or
wetlands, for the purpose of creating a
drainage channel where one did not
exist previously, in many other cases,
natural streams or drainageways were
excavated to increase drainage capacity.
.In many instances, this took place
decades ago and the waterway has been
' considered a "ditch" by adjacent -
landowners since that time. Some
commenters believe that channelized .
streams should not be considered
ditches and that this NWP should apply
only to ditches constructed in uplands
and wetlands. Others, however, noted
that in some parts of the country, most
functioning ditches were once natural
waterways.
Understanding the differences in
definitions of a ditch across the county.
we have'vlnclittded a definition'1ST the
term "drainage ditch" in the ...
"Definitions'""section of the NWPs. This
definition recognizes that drainage
ditches may be constructed in uplands
or waters of the United States, including
wetlands and streams. A stream which
has been channelized to improve
surface drainage is considered a
drainage ditch, for the purposes of the
NWP program. District engineers will
use judgement to determine whether a
stream is a drainage ditch and eligible
for the Section 404(f) exemption.
Some commenters stated that, to meet
minimal adverse effect criteria, this
NWP should have acreage and/or stream
length limits. The recommended acreage
limits ranged from Vio to 1 acre. Stream
length limirs ranged from zero to one
mile. There were recommendations for
compensatory mitigation requirements.
such as requiring compensatory
mitigation for impacts greater than 1
acre. Some commenters suggested PCN
thresholds. Some commenters cautioned
that when a PCN is not required,
conditions are often ignored and that a
PCN should always be required for work
in drainage ditches. Other commenters
stated that the NWP should not
authorize discharges of excavated
material into waters of the United
States. One commenter believes the
NWP should be conditioned to allow its
use only once per watershed and should
not be used in any area identified as
haying water quality problems or in any
outstanding resource waters. At least
"one commenter stated that public
review should be required for all work
on public storm drain systems because
they directly affect the public and are
paid for with public funds.
We have determined that no acreage
limit is necessary for the proposed
NWP, because the authorized work is
intended to benefit the aquatic
environment, by changing the shape of
the drainage ditch to improve water
quality and other aspects of the aquatic
environment. Notification will be
required when excavated material is
sidecast into waters of the United States
or greater than 500 linear feet of
drainage ditch is reshaped. The latter
PCN requirement was added to address
concerns for adverse effects to riparian
areas adjacent to ditches constructed in
waters of the United States. District
engineers will review the PCNs to
determine if the proposed work will
result in minimal adverse effects on the
aquatic environment. Prohibiting the
sidecasting of excavated material into
waters of the United States would
discourage ditch reshaping activities
because the Section 404(f) exemption
for ditch maintenance allows
sidecasting. Such a prohibition would
cause many landowners to maintain the
ditch at its originally designed
configuration to qualify for the.
exemption. Since the purpose of the
proposed NWP is to encourage ditch
maintenance activities that improve the
aquatic environment, it would be
counterproductive to limit its use to
only once per watershed or require
public review.
Some commenters recommended that
compensatory mitigation be required for
all activities authorized by this NWP.
Other commenters asked for
clarification that compensatory
mitigation is not required. One
commenter believes that the applicants
should be required to provide
documentation regarding the scope and
effect of the existing drainage ditch
before and after the reshaping activity.
Another commenter stated that the
applicant should be required to obtain
a minimal effect determination and
certification from NRCS stating that best
management practices have been
employed. One commenter suggested
that the Corps should require the
submittal and review of an erosion and
sediment control plan prior to
authorizing use of this NWP because
these conditions are generally ignored
when placed on the permit itself.
Another commenter suggested that a
minimum riparian buffer should be
established or maintained as part of the
authorization. Several commenters
believe, that revegetation of ditch banks
with tree or shrub species should be
required after construction to minimize
loss of riparian habitat and reduce the
potential for increasing water
temperatures within the ditch. Another
commenter recommended: (1)
Conditioning the NWP to prohibit
alteration or replacement of one type of
stream substrate with another type; (2)
the NWP should not authorize more
than minimal adverse effects to riparian
corridors during construction activities;
(3) the NWP should require the
replacement of riparian corridors when
they are destroyed during construction;
and (4) the NWP should not authorize
the sidecasting of material in such a
manner that the material would block or
impede overland surface flows into any
jurisdiction water of the United States,
including wetlands.
We have determined that
compensatory mitigation will normally
not be required for the work authorized .
by this NWP because the purpose of the
proposed NWP is to authorize ditch
reshaping activities that improve water
quality and aquatic habitat. If the project
proponent did the work to qualify for
the Section 404(f) exemption.
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compensatory muigacion would not be
required since the activity is exempt.
Requiring compensatory mitigation for
modifying the cross-sectional
-sniiguration of the ditch may
encourage maintenance to the original
dimensions and configuration and
discourage reshaping the ditch to
benefit the aquatic environment. We do
not agree that permittees should be
required to provide a statement
discussing the effects of ditch reshaping
or that they should be required to obtain
a certification from NRCS. Compliance
with any required sediment and erosion
control plan is the responsibility of the
permittee. Permittees are encouraged to
maintain a -.egetated buffer along one
side of the ditch, but regular
maintenance activities will prevent the
development of a woody vegetated
buffer along the side of the ditch used
by equipment to perform die excavation.
Several commenters presented a -
variety of potential problems and
concerns about this NWP. Some'
commenters believe that this permit will
be very difficult to implement and will
require substantial coordination with
the Corps that previously was not
required and will delay implementation
of projects. Many commenters requested
assurance that it would be used strictly
and successfully for water quality
improvement. They believe the existing
drainage ditch exemption is often
abused, resulting in the reditching of
long-abandoned ditches, the excavation
of natural streams, and the expansion of
ditches beyond their original
dimensions. They envision abuse of this
NWP by applicants stating a water
quality Improvement purpose, but really
intending to remove woody vegetation
from the stream bank or increase
channel capacity to drain a new area.
This group of commenters was,
concerned that adverse effects on the '
aquatic environment resulting from
activities authorized by this NWP would
be more than minimal and could result
in loss of important riparian habitat
bordering naturalized drainage ditches.
They were also concerned about filling
and permanent loss of wetlands as a
result of sidecasting. Several of these
commenters pointed out that many of
the conditions of this NWP are very
difficult to measure, such as
determining if the drainage area has
been increased and determining the
changes In ditch configuration without
altering capacity. They caution that
some channel reshaping projects might
not be beneficial or would involve a
complex trade-off between various
commencer said the permit should have
language which encourages retaining
che structure and functions of the
wetland and stream habitats.
In response to the comments in the
previous paragraph, we must reiterate
that the proposed NWFJ is intended to
encourage ditch maintenance activities
that benefit the aquatic1 environment.
This NWP authorizes activities that are
exempt from Section 404 permit
requirements if those activities were
done strictly as maintenance to the
original ditch design configuration.
Although the ditch ma^ be a
channelized stream, excavation
activities to maintain die drainage ditch
do not require a Section 404 permit. We
believe that a drainage clitch can be
reconfigured to provide^ water quality
benefits without increasing the area
drained by the ditch. The removal of
riparian vegetation from uplands
adjacent to a channelized stream is not
regulated by the Corps tinder Section
404. Sidecasting of excavated material
into waters of the Uniteci States is
exempt from Section 404 permit
requirements if the activity is associated
with ditch maintenance^. We believe that
conditioning this NWP to prohibit the
sidecasting of excavated material into
waters of the United States would
severely limit the use of this NWP and
encourage exempt maintenance
activities. Likewise, conditioning this
NWP to require the permittee to
maintain the wetlands and stream
habitat in the project area would
encourage exempt maintenance -
activities-that have more adverse effects
on the aquatic environment.
.This NWP is subject to proposed
General Condition 26, which will
reduce its applicability, peneral
Condition 26 prohibits the use of this
NWP to authorize discharges resulting
in the loss of greater than 1 acre of
impaired waters, including adjacent '
wetlands. NWP 41 activities resulting in
the loss of 1 acre or less of impaired
waters, including adjacent wetlands, are
prohibited unless prospective permittee
demonstrates to the District Engineer
that the activity will not (result in further
impairment of the waterbody.
Notification to the District Engineer is
required for all activities authorized by
this NWP in impaired waters and
wetlands adjacent to those impaired
waters. ;,
Division engineers can regionally
condition this NWP to exclude certain
waterbodies or require notification
when waters or unique areas that
provide significant social or ecological
functions and values may be adversel'
minimal adverse effects on the aquatic
environment, since it is limited to
existing drainage ditches and activities
that improve water quality. District
engineers can exercise discretionary
authority when very sensitive or unique
-sreas, such as salmonid habitat
mentioned by several commenters may
be adversely affected by these activities
The PCN requirement allows Corps
districts, on a case-by-case basis, to add
appropriate special conditions to ensure
that the adverse effects are minimal. The
District Engineer can also assert
discretionary authority to require an'
individual permit for any activity that
may have more than minimal adverse
effects. Proposed NWP F is designated
as NWP 41, with the proposed
modifications discussed above.
42. Recreational Facilities
In the July 1, 1998, Federal Register
notice, we proposed an NWP to
authorize discharges of dredged-or fill
material into non-tidal waters of the
United States, excluding non-ddal
wetlands contiguous to tidal y/aters, for
the construction or expansion of passive
recreational facilities.
Several commenters were concerned
about the title of this NWP. Some
commenters expressed confusion at the
definition of passive recreational
facilities. Other commenters were.
interested in exactly what activities
were authorized. One commenter
suggested that the Corps clarify what is
meant by the term "open space" and
when a recreational facility is
considered to have a substantial amount
of buildings and odier impervious
surfaces. Several commenters suggested
defining the wording "substantially"
when considering the amount of grading
necessary for a particular activity.
To help reduce confusion, we have
eliminated the word "passive"" from this
NWP and changed the title of the
proposed NWP to "Recreational
Facilities." The definition of the term
"recreational facilities," as used for this
NWP, and the types of activities
_ authorized by this NWP have not been
modified. For the purposes of this NWP,
recreational facilities are defined as low-
impact recreational facilities that are
constmr:ed so that they do not
substantially change preconstruction
grades or deviate from natural landscape
contours. Low-impact recreational
facilities include, but are not limited to,
bike paths, hiking trails, campgrounds,
and running paths. The construction of
golf courses or the expansion of golf
courses and ski areas, can be authorized
bv this NWP, provic
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39323
.imounts of grading or filling, and
adverse effects to wetlands and riparian
nreas are minimized to the extent
practicable.
The term "open space" refers to areas
not disturbed by the construction or
expansion of the recreational facility,
such as forests, fields, riparian areas,
etc. Open spaces do not contain any
buildings. District engineers will
determine when a proposed activity
involves a substantial amount of
buildings, concrete, asphalt, or other
. impervious surfaces. The land area for
the recreational facility authorized by
the proposed NWP should consist only
of a small proportion of impervious
•surface. District engineers will also
determine when the amount of grading
is substantial.
One commenter stated that facilities
for walking, biking, and running require
substantial filling and grading if they are.'
located in hydric soils. One commenter
suggested that gravel paths are pervious
and should qualify for authorization
under this NWP. A couple of
commenters suggested that roads are not
pervious features and should be
excluded from authorization by this
permit. Several commenters
recommended expanding this permit to
include other activities that are
beneficial to the community, such as
playgrounds, pools, and ball fields,
suggesting that these activities are no
more harmful to the environment than
ski areas or golf courses. Many
commenters objected to the inclusion of
golf courses, campgrounds, and ski
areas in this NWP, stating that these '
activities are not consistent with the
concept of passive recreational facilities
and do not have low impacts on aquatic
resources.
Walking, running, and biking trails do
not necessarily require substantial
grading or filling of hydric soils. These
trails can be constructed by placing a
layer of gravel or crushed stone on the
trail or placing a thin layer of asphalt on
the soil surface. In some situations, a
footer may be excavated to construct a
base for the gravel or asphalt trail.
District engineers will determine when
the construction of a trail involves
substantial grading or filling. Timber
decks and walkways should be used
where possible to minimize losses of
waters of the United States. Gravel paths
and roads are considered pervious. The
proposed NWP can authorize the
construction of roads to provide access
to the recreational facility, including
support buildings. However, the roads
must be constructed at grade with
pervious materials. Other types of roads
to provide access to the recreational
facility can be authorized by other
NWPs, s
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Federal Register Vol. 64. No. 139/VVednesday, July 21. 1999/Notices
subject to careful environmental design
.ind planning. For example, features to
control surface runoff, buffers
established and maintained adjacent to
open waters, integrated pesc
management, and careful fertilizer and
pesticide application, are examples of
maintenance and operation activities
which reduce the impacts of these
facilities on the aquatic environment.
These types of features and practices
may be part of the water quality
management plan required by the
proposed modification of General
Condition 9. A well-designed golf
course authorized by this NWP will
have avoided most of the wetlands on
the site, Incorporated stormwater
management facilities into the course to
protect local water quality, and
established and maintained vegetated
buffers adjacent to open or flowing
waters.
One commenter asked why a project
proponent would request authorization
under this NWP when a larger golf
course could be authorized by NWP 39.
Anodier commenter questioned the
statement in die proposed NWP
suggesting that commercial recreational
facilities may be authorized by NWP 39. '
Several commenters stated that the
Corps will subject golf courses to more
restrictions and that those restrictions
should be stated In the NWP.
Proposed NWP 39 authorizes the
construction of building pads.
foundations, and attendant features for
residential, commercial, and
institutional developments. NWP 39 -'
does not authorize die construction of
golf courses on its own. unless those
golf courses are attendant features of
developments. However, NWP 39 can be
used to authorize support buildings for
a golf course, such as equipment storage
buildings and clubhouses. Other
recreational facilities can be audiorized
by NWP 39, such as playgrounds or
playing fields associated widi schools,
provided diose recreational facilities are
attendant features of the school
buildings. We have-adequately
discussed the restrictions on golf
courses In the text of NWP 42. Division
engineers can regionally condition this
NWP to Impose additional restrictions
on this NWP and ensure that it
audiorlzes only activities widi minimal
adverse effects on the aquatic
environment. District engineers can
exercise discretionary audiority if die
proposed work may result in more than
minimal adverse effects or place case-
specific special conditions on an NWP
authorization to ensure that the
Several commenters supported the
proposed 1 acre limit f6r this NWP. One
commenter suggested that the NWP
should authorize the loss of no more
than 1A acre of waters of the United
States or 20 linear feet of stream.
Another commenter suggested that the
NWP should have an acreage limit of 1
acre or 20 percent of die total wetland
area on the site, with a prohibition
against filling fens, seeps, springs, sand
ponds, or bogs. One commenter
suggested diat diis permit should not
authorize activities widiin 200 feet of
streams or rivers diat contain habitat for
salmon. One commenter requested that
this permit authorize only up to Vb of an
acre of impacts for linear impact
recreational facilities such as hiking,
and biking trails. One commenter
recommended that stream bed impacts
should not be authorized by diis permit
since a passive recreational facility
"does not substantially change
preconstruction grades or deviate from
natural landscape contours."
We believe that a 1 acre limit for
recreational facilities is appropriate.
This limit, with the notification
requirements, will ensure that only
activities with minimal adverse effects
on the aquatic environment are
authorized by this'NWP. Widi regard to
limiting the use of the proposed NWP in
certain aquatic habitat types, we believe
that these issues are more appropriately
addressed at die regional level where
division engineers can impose regional
conditions to restrict the use of this
NWP in high value waters, or prohibit
its use in. certain waterbodies. To make
diis NWP consistent with most of the
other proposed NWPs, we are proposing
to change the applicable waters for this
NWP to "non-tidal waters, excluding
non-tidal wedands adjacent to tidal
waters." We disagree that die NWP
should not include impacts to stream
beds. The recreational facility may
require crossings over streams or bank
stabilization activities.
One commenter suggested
significandy reducing die proposed PCN
diresholds of Vs acre and 500 linear feet
of stream bed. A couple of commenters
suggested diat a PCN should be required
for all activities audiorized by diis
NWP, because passive recreational
facilities are usually built in areas diat
are recognized as environmentally
sensitive. One commenter requested
that Federal agencies should be
provided die audiority to reject an
activity for consideration under diis
permit.
To make die PCN diresholds of the
iistent widi die PCN
acre. The PCN requirement for activities
causing the loss of greater than 500
linear feet of perennial and intermittent
stream bed will be retained. These PCN
requirements will help ensure that the
activities authorized by this NWP result
in minimal adverse effects on the
aquatic environment. Since this NWP
has a 1 acre limit, there will be no
agency coordination for PCNs. In
addition, we do not believe that agency
coordination is necessary, since this
NWP authorizes only diose recreational
facilities diat are integrated into the
natural landscape and consist-primarily
of open space.
A r rrnmenter suggested that trails
resulting in the loss of less than one acre
of non-tidal waters of the United States
should be exempt from die requirements
of General Condition 9, especially die
requirement for a water quality
management plan.
The District Engineer will determine
if the proposed recreational facility
requires a water quality management
plan to comply with General Condition
9. Small trails may not require such a
plan. However, where there are water
quality concerns due to die construction
and use of die facility, vegetated buffers
may be required. Stormwater
management facilities may also be
required.
One commenter said diat features
such as roads, buildings, and golf
courses result in significant indirect and
cumulative impacts in watersheds by
inducing growth in surrounding areas
and increasing runoff and hydrplogic
modifications. This commenter further
suggested diat regionally significant
resources should be excluded from diis
NWP or impacts to such resources••
limited. Many-commenters focused on
die requirement that diis permit should
preserve natural systems and that the
audiorized facilities must be integrated
into die natural landscape. One
commenter stated that this permit is riot
consistent widi sound watershed
management. One commenter stated
diat the NWP encourages the removal of
trees and other vegetation adjacent to
waters of the United States, which
would increase stream bank erosion,
and diat die Corps should establish
explicit general conditions which
prohibit activities diat result Ln removal
of stream bank vegetation within
riparian areas.
The potential for activities audiorized
by diis NWP to induce growth in
surrounding areas is outside of die
Corps scope of analysis, unless the
induced growth involves activities
regulated by die Corps. These low-
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Federal Register/Vol. 64. No. 1397 Wednesday. July 21.
1999/Notices
to increasing populations. The
i recreational facilities authorized by the
proposed NWP are low-impact, and will
not cause significant hydrological
modifications because the facilities
authorized by this NWP consist mostly
of open space, with a small proportion
of impervious surface.,The requirements
of General Conditions 9 and 21 will also
ensure that the authorized activities do
not cause substantial hydrological '
modifications. The recreational facilities
authorized by this NWP will help
preserve open space if they are
constructed,in the vicinity of urbanizing
areas. The construction of low-impact
recreational facilities is consistent with
•sound watershed management practices.
•The NWP does not encourage the
removal of riparian vegetation. This
NWP, like the other new NWPs, require'-
the establishment and maintenance of
vegetated buffers adjacent to waters of"
the United States to the maximum
extent practicable (see General
Condition 9). . -
Many commenters requested that
mitigation should be required for
activities authorized by this NWPi One
commenter opposed the use of in lieu
fee or mitigation banking programs to
serve as mitigation for losses of waters
of the United States authorized by this
permit. Another commenter
recommended that mitigation should be
required for losses of less than Vy acre,
1 either through mitigation banks or in ' '
lieu fee programs. One commenter
stated that preservation of adjacent
green space is riot acceptable as . •
mitigation. This commenter further •> - •'
stated that the NWP indicates that buffer.
zones may .be required, but there is hot- :
an explicit requirement for vegetated •."
buffers and the benefit of such buffers ': '
is questionable: One commenter said ~
. that the remaining wetlands on the site-
should be protected from further ..'
• development through deed restrictions.. "
Another commenter requested that the .'"
Corps require monitoring:and ' '• ''•""' *
evaluation standardsfor iiOiHgaUon *
plans... * . • -V;'';^ '"""';•
District engineers may require-^,
compensatory mitigation for activities- ,
authorized by this NWP to ensure that
the net adverse effects to the aquatic '
environment are minimal! Mitigation
banks and in lieu fee programs can be,
appropriate methods to provide '
compensatory mitigation for activities'-
authorized by this NWP. The
preservation of wetlands or vegetated
buffers on the site can satisfy :'
compensatory mitigation requirements,
especially if there are high value waters
on the project site that should be "
protected. The establishment and/-
maintenance of vegetated buffers-. :' "
.adjacent to waters "of the L/nifed States
can be in irMportant parrot the'
compensatory mitigation required by
district engineers. We cannot require the
permittee to preserve the remaining
waters on the site, unless the
preservation satisfies a compensatory
mitigation requirement. Otherwise, such
a preservation requirement could be
considered a taking of private property.
Through special conditions, district
engineers can require compensatory
mitigation, including monitoring plans
and evaluation standards.
Several commenters were concerned
. with the use of this NWP with other
NWPs to authorize activities with larger
impacts to the aquatic environment.
We are proposing to modify General.
Condition 15 to address the use of more
than one .N'WP to authorize a single and
cpmplete project. In accordance with
the proposed modification of General
Condition 15, this NWP can be used
with other NWPs to authorize a single
and complete project, as long as the
activity does not cause the loss of waters
of the United States in excess of the
highest specified acreage limit of the
NWPs used to authorize that project
Although this NWP is intended to
authorize all activities associated with a
single and complete recreational
facility, there may be some related
activities; such as bank stabilization in
tidal waters, that cannot be authorized
by NWP 42 but can be authorized by
other NWPs. . . -
This NWP is subject to proposed
General Conditions 25, 26, and 27,
which will reduce, its applicability.
General Condition"25-prohibits the use
.of this NWP to authorize discharges into
designated critical resource waters and
wetlands adjacent to those waters.,In '•'
accordancewiurGeneral Condition 26/
recreational activities resulting in the
Ipss of l-.acre or less of impaired waters.
including adjacent wetlands, cannot be
authorized by NWP 42 unless •
prospective permittee demonstrates to,
the District Engineer that the activity
will not result in further impairment of
. the waterbody. General Condition 27
prohibits the use of NWP 42 to
authorize permanent;,above-grade fills
in waters of the United States within the
100-year floodplain.
In response to a PCN. district
engineers can require special conditions
on a case-by-case basis to ensure that
the adverse effects on die aquatic-
environment are minimal or exercise
discretionary authority to require an
individual permit for the work. The
issuance of this NWP, as with any NWP,
provides for the use of discretionary
authority when valuable or unique -
aquatic areas may be affected by these
activities. Proposed NWP D
designated as NWP 42, with
proposed modifications discu
above.
43. Stormwater Management Fa«.
1 QQ= W3,S Pr°P°sed in the
1, 1998. Federal Register as NWP
authorize the discharges of dredgec
fill material into non-Section 10 waf
of the United States, including
wetlands, for the construction and
So"/110,6 °f stormwa'ermanageme.
(SWM) facilities.
A large number of comments were
MumV6d in resP°nse to ^6 proposed
MWD m!"yuCOmmenters supporting the
NWP and other commenters opposing
the issuance of this NWP. those
commenters supporting the NWP stated
that it would greatly enhance low-value
wetland areas and attenuate the effects
of flood waters. Some commenters
requested the withdrawal of this NWP.
Commenters opposing the issuance of
.this NWP stated that its use will result
in more than minimal adverse effects on
. the aquatic environment. A number of -
-commenters stated that the NWP would
be difficult for the Corps to implement.
One commenter said that there is no
need for this NWP, because SWM
facilities can be authorized by NWP 39
as a part of the residential, commercial.
and institutional development. Several
commenters were concerned about the
possible use of this NWP with other
NWPs, if SWM facilities are required as
part of the" development. One
commenter stated that the NWP will
reduce incentives to, locate SWM
facilities in uplands. Many of those
opposing (his NWP believe that the
permit .only benefits developers who
want to develop the entire upland
parcel and locate the SWM facility in
wetlands and that mitigation sequencing
•(i.e., avoidance, minimization, and
compensatory mitigation) would not
take place. •
'•The proposed NWP and the NWP
general conditions contain provisions to
help ensure that the NWP does not
authorize activities in waters of the
United States with more than minimal
adverse effects on the aquatic
environment, individually or
cumulatively. The notification
requirements will allow district
engineers to review certain stormwater
management activities on a case-by-case
basis and-exercise discretionary
authority in those cases where the
adverse effects on the aquatic
environment are more than minimal.
Division and district engineers can add . .'..
regional or case-specific conditions to
this NWP to ensure that the NWP
authorizes only activities with minimal
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Federal Register/ Vol. 64. No. 1397Wednesday. July 21.
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effects on the aquatic
environment. An important provision of
fhe proposed NWP is that it does not
Authorize the construction of new SWM
facilities in perennial streams, which
will protect habitat for fish and other
.iquatic organisms.
Although an SWM facility can be
authorized by N'WP 39 as an attendant
feature of a single and complete
development project, there are
circumstances that warrant a separate
NWP for SVVM facilities. For example.
some SVVM facilities may be constructed
by a local government as part of a
watershed plan, not for a particular
development. SVVM facilities may also
be required for transportation projects or
upland development activities. This
NWP will not reduce incentives to
locate SWM facilities in uplands.
because the permittee is still required to .
comply with General Condition 19 and
provide with the notification, a written
statement to the District Engineer
explaining why the SWM facility must
be constructed in waters of the United
States and why additional minimization
cannot be achieved (see paragraph (d) of
the proposed NWP). General condition
19 requires that the permittee avoid and
minimize work in waters of the United
States on-site to the maximum extent
practicable.
A number of commenters stated that
SWM facilities should not be
constructed in waters of the United
States. One commenter said that SWM
facilities should not be constructed in
waters of the United States adjacent to
perennial streams. Many commenters
indicated that stormwater should be
treated in uplands before it is
discharged into waters of the United
States. One commenter stated that SWM
facilities can only increase wetland
functions and values when they are
constructed in non-wetland areas. A
commenter recommended modifying
the NWP to allow the use of wetland
'-".stems for passive treatment of
3rmwater runoff. Many state agencies
said that they do not allow the treatment
of stormwater in wetlands. One
commenter stated that the use of the
NWP in waters of the United States
should be limited only to receiving
stormwater runoff, which will not
permanently change the waters of the
United States, and proposed a '/3-acre
limit for structures, such as outfalls.
Another commenter stated that the NWP
should not authorize SWM facilities in
waters of the United States, unless the
project results in enlargement and
enhancement of existing wetlands. One
commenter stated that an NWP
authorizing SWM facilities in wetlands
wetlands and non-point source
pollution control programs and
requested clarification,regarding what
constitutes "in certain[circumstances."
as cited in the preamble discussion
concerning the placement of SWM
facilities in waters of the United States
in the July 1. 1998, Federal Register
notice. This commenter also objected to
the proposed NWP beckuse it authorizes
SWM facilities in streams and said that
these activities will result in the
destruction of stream morphology and
destabilize the stream bed, reducing
water and habitat quality. One
commenter stated that jJtormwater
management .ponds constructed in
wetlands actually encourage a slower
decomposition of toxins, and locating
an SWM facility in wetlands creates
greater potential for toxic pollution if
the pond containment structure or fill
fails or the pond is overfilled. A '
commenter recommended prohibiting
the construction of stormwater
detention facilities in waters of the
United States within ISO feet of the
'ordinary high water mark.
The construction of SWM facilities in
waters of the United States is often
necessary, and may provide more
protection to the aquatic environment.
SWM facilities located, in waters of the
United States are often more effective
than SWM facilities constructed in
uplands, because storm runoff flows to
streams and wetlands, making these
areas better able to trap sediments and
pollutants than upland areas. The local
aquatic environment benefits from more
efficient SWM facilities. Low value
wetlands and low value ephemeral and
intermittent streams may be the best
places to locate SWM facilities, to
reduce adverse effects to^higher value
waters by attenuating storm flows and
preventing pollutants frojn further
degrading those areas: The'proposed
NWP authorizes the construction of
SWM facilities in waters >of the United
States, particularly low value waters,
provided that adverse effects on the
aquatic environment are minimal.
Division engineers can regionally
condition this NWP to prohibit its use
in high value waters. For those activities
that require notification, discretionary
authority will be exercised by district
engineers on a case-by-case basis where
the adverse effects on the aquatic
environment are more than minimal.
We do not agree that the NWP should
be limited only to those projects that
enlarge or enhance existing wetlands. In
addition, we do not agree, fhat the
construction of stormwater management
facilities should be prohibited in wati
the ordinary high water mark because
this requirement would prevent district
engineers from using this NVVP to
authorize many effective SWM facilities
with minimal adverse effects on the
aquatic environment.
Through the notification process
district enginee/s will determine which
i>WM facilities can be authorized bv this
NVVP. Locating SWM facilities in '
ephemeral and intermittent streams will
help reduce degradation of perennial •
stream morphology by reducing the
velocity of surface water flows during
storm events. Adequately designed
stormwater detention and.retention
ponds, particularly those ponds
constructed in loc-- ons where they
most effectively capture runoff (i.e.. in
ephemeral and intermittent stream
beds), will help prevent stormwater
flows from entering perennial streams
with velocities high enough to erode the
stream banks and downcut the stream
bed. These ponds will also trap
sediments,, which will help maintain the
substrate of the stream bed and reduce
water quality degradation. Permittees
are required to maintain authorized
SWM facilities to prevent the entry of
pollutants in the waterway if the pond
fills with sediment or the pond
containment structure deteriorates.
Paragraph (c) (1) of the proposed NWP '
requires prospective permittees to
submit a maintenance plan, if required
with the PCN. The maintenance plan
will ensure that the SWM facility will
retain-its effectiveness at trapping
sediments and pollutants and
attenuating flood waters.
Many commenters expressed concern
for adverse effects to wetlands that.may
result from changing from one wetland
type to another or from adverse effects
caused by secondary impacts due to
flooding, excavation, or drainage. One
commenter stated that this NWP allows
the replacement of a natural SWM
facility with a concrete facility, thereby
increasing the possibility of downstream
flooding. A commenter advocated the
preservation of natural landscapes for
flood control purposes by promoting the
use of non-structural alternatives for
SWM. Some commenters said that this
NWP should not authorize stream
relocation or the construction of ponds
in wetlands and that the Corps should
not encourage other changes to natural
drainage systems or diversions of
watercourses.
The proposed NWP authorizes the
construction of SWM facilities, which
may result in wetland conversion and
the flooding, excavation, or draining of
wedands. Some relocation of
inter
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39327
facility. For those activities that require
notification, district engineers will
review the proposed work to determine
if the proposed work will result, in more
than minimal adverse effects on die •
. aquatic environment-. Division engineers
can regionally condition diis NWP
lowejr the notification thresholds or
^restricLthe.use of die NWP to ensure
that it'authorizes only those SWM
• activities with minimal adverse effects
on the aquatic environment. Although
we encourage die'use p.f-non-structural
methods for SWM, structural practices '
_ace often the only practicable methods,
~ and shouid be authorized'by NWP if' .
they result only in minimal adverse .
effects on th.e aquatic environment
Many of die commenters supporting
die .proposed NWP revested that the
Corps expand the scope-of the NWP to
include perennial streams and Section
10 waters, including tidal waters. One
•commenter requested diat die NWP
authorize sediment basins in perennial
streams if sedimentation is a problem in
the area. One commenter stated diat
outfall structures may need to be
constructed in Section 10" waters,
especially rivers. Anodier commenter
requested that die Corps clarify whether
' die NWP audiorizes discharges into
wedands adjacent to perennial streams.
One commenter"31316010131 design..
criteria should be included in the NWP.
In the July 1, 1998, Federal Register
notice, we proposed to limit dits.NWP
to non-Section. 10 waters, including
wetlands. To simplify die scope of
applicable waters for the proposed
NWPs, we .are proposing to limit this:':
• NWP. to-'activities in non-tidal wetlands,,.
. excluding non-tidal wetlands .adjacent ;
to .tidafwaters. However,; tnis'-N. WP,',iS:'
• still-limice'd to Section 4Q.4 waters and
dbes.not audiqrize SWM activities in
non-tidal Section 10 waters.;The, .,
construction'Qfnew.SWM-facflities.in; .
perennial streams- is., not authorized fey -
diis NWP. We believe'diat'expahdirig
the scope of applicable'waters for this
NWP to tidal waters andperennial .'."-
streams would be^contriary to the ~ '
minimal adverse effects requirement of
.die NWPs, because -such an expansion '
of scope would substantially increase
1 die potential for more diari minimal
. adverse effects on die aquatic
envirbnmehtr individually or
cumulatively. Project'proponents who
need to construct SWM facilities in^
perennial streams, tidal waters; or '-
Section 10 waters can request,
authorization dirough.Uie individual
.permit process or utilize regional
general permits, if available. This NWP
. audiorizes-discharges into wedands
adjacent to perennial streams, but does
not authorize discharges into the
perennial:str|arh'bed. Outfa-ll structures
associated wtth-an SWM facility that
must be constructed in Section 10
waters may be authorized by NWP 7.
provided the single and complete
project complies with General
Condition 15. We do not agree that
design criteria should be included in die
NWP. Specific design criteria vary
across the country and are more
appropriately evaluated by district .
engineers on a case-by-case basis. .- -
Regional conditions can prohibit certain-
stormwater management activities from .
audiorization by this NWP..
Several commenters addressed "»
jurisdictional issues related to diis
NW,P. One commenter said diat no
permit is required1 for diese activities.
Several commenters stated that all
references to excavation and other
activities diat do not result in a
discharge of material into waters of die
United States in accordance with the •--..'
Tulloch Rule decision should be. deleted
from die NWP.. A few commenters
emphasized the need to clearly identify
die Corps jurisdiction as it relates to
stormwater retention and, detention
facilities. Other commenters questioned
die need for a permit to maintain SWM
facilities which were constructed
entirely in uplands.
The construction and maintenance of
SWM facilities require a Section 404
permit .if die activity results in a
.discharge of dredged or fill material into
waters of the United States. SWM.. -
facilities require a Section 10 permit if
they involve any woflcin navigable
waters pf.the United .States. Excavation-
actiyities>fn'jyaters;offehe Unitled. States" ^
require ;aSectiQns404permit;,ifthoset^':.;
excavation aptjvhies.result iftmpre than"
.incidental fallback of excavateidt ' > ".;
material. District engineers will
determine, on a case-by-case basis. If a
specific SWM facility contains waters of
the United States. If the SWM facility
was constructed entirely in uplands,
and does not expandothe reach of waters
of the United States, then that SWM
facility is not a water of the United
States (see 33 CFR ParWZSvS). ," . .
Maintenance of SWM facilities
constructed entirely in uplands does not
require a Section 404 permit, provided
the construction of that SWM facility • -' .-
did not expand die reach of waters of
die United States.' -.,
Proposed NWP C had a 2.acre limit
for the construction of new SWM '
facilities, but no acreage limit for .
maintenance activities. In response to,
the July Ij 1998, Federal Register
notice, commenters recommended
acreage limits for the construction of -
new SWM facilities, which ranged from
1 to 5 acres. Several commenters ...-
supported no acreage limit for the
maintenance of existing SWM facilities.
Commenters recommended acreage
limits of'/3 acre and 1 acre for.
maintenance activities. One commenter
stated that the proposed 2 acre limit.for
- construction was too high.' One .
commenter asked the Corps to clarify .
whether the 2 acre limit applies to each
individual facility, or whether it applies
to the watershed. A number of -
commenters recommended limits for
impacts to stream beds, ranging from no
impacts to stream beds to a 300 linear
footjimit. One commenter supported
die PCN direshold for stream bed ' . •
impacts, radier than a linear foot
•-limitation. A couple of commenters '. :
stated diat the 2 acre limit is too low
and the acreage limit should be based -
site-specific criteria, such as die quality
of affected waters. Another commenter
recommended basing die acreage limit
on regional conditions, witiia national '
PCN direshold of V3 acre. One
commenter suggested diat temporary, ••
impacts could result in adverse effects,
depending on the duration of flooding,
and diafimpacts due to flooding should
b"e t'onsidered in the acreage limit of die
NWP. - ' '.
Based on our review of diese
comments, we are proposing to retain
die 2 acre limit for die construction of
new SWK|,facilities, widi no limit on
maintenance activities provided die
maintenance activity is conducted in
accordance with an approved
maintenance plan. The 2. acre limit
applies to each single and complete .
project, nofcthe watershed. We believe.
: that,die-proposed NWP shouldnot have-
'alitnit for actiYities;.resulting.iii'the toss "„
of'intermittent stream bedi'thePCN'.^ .;.;
threshold of .5001 linear-feet'Js adequate
to allow district engineers to determine
if the proposed work will result in more
dian minimal adverse effects on die
aquatic environment For activities
resulting in the loss of ephemeral stream
bed, there is no PCN direshold. Division.
engineers can regionally condition this
NWP to establish limits for stream bed •
impacts or lower PCN, diresholds. • ..-
Division engineers can also regionally
condition diis NWP to add PCN , ;
thresholds for activities resulting in the ;
loss of ephemeral stream bed. . - •. , ..
A simple 2 acre limit is much easier - ,-
to implement than an acreage limit t
based on die quality, of affected waters:
A simple acreage limit is less confusing -.
to die regulated public, because difere
are1 no standard, widely accepted .
mediods available to establish-acreage .
limLCS for stormwater management. '..
facilities based on die quality of affected
waters. In areas.where the 2 acre limit
is too low, the Corps district can .,-
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Federal Register, Vol.
64, No. 139/Wednesday. July 21. 1999/Notices
develop regional general permits to
authorize these activicies. District
engineers will determine when adverse
effects due to flood ing" result in
permanent, not temporary, losses of
waters qf the United'States and should
be counted toward the 2 acre limit for
this NWP,
Numerous comments were received
regarding the PCN thresholds for the
proposed NVVP. Some commenters
believe that PCNs should not be
required for any activity authorized by
this NWP. Other commenters
recommended requiring PCNs for all
activities authorized by this NWP
because SWM facilities are public
facilities built with public funds.
Suggested PCN thresholds included 'A,
Vs. and Vz acre.'One commenter
recpmmended requiring agency
coordination for all activities authorized
by this NWP to provide an opportunity
to assist In the planning of.the facility.
Recommended PCN thresholds for
stream bed Impacts ranged from 150 to
1.000 linear feet.
The notification process is necessary
to ensure that the proposed NWP
authorizes only those activities that
result In minimal adverse effects on the
aquatic environment, individually or
cumulatively. It Is unnecessary to.
require PCNs for all activities
authorized by this NWP. unless the
division engineer has specific concerns
for the aquatic environment in a
particular geographic area arid
regionally conditions the NWP to' lower
the notification thresholds. Stbrmwater
management activities resulting in the
loss of less than 1A acre of noh-tidal
waters of the United States, the loss of
less than 500 linear feet of intermittent
stream bed, or the loss of ephemeral
stream bed are unlikely to result in more
than minimal adverse effects on the
aquatic environment. To be consistent
in the PCN thresholds1 for the other
proposed NWPs, we have lowered the
" PCN threshold from 1A acre to "1A acre>
Agency notification will be conducted
for activities chat result in the loss of
greater than 1 acre of waters of the
United States.
We received many comments
regarding maintenance requirements
and maintenance limits for the proposed
NWP. Some commenters stated that a
permit should riot be required for
maintenance as long as there are no
• Impacts beyond the originally approved
facility. Other commenters said that this
NWP Is unnecessary because the
maintenance can be authorized by NWP
3. Some commenters stated that
maintenance is poorly defined and
can be just as destructive of wetlands as
the initial construction of the facility.
Several commenters requested a limit
on the maintenance of SWM facilities,
while some commenters recommended
no limit to ensure that the design
capacity is maintained. One commenter
stated that a second review for
maintenance of the facility Is .
unnecessary because wetland impacts at
the time of the .original construction,
have already been considered.
Some commenters were concerned
with the requirement for submitting a1
maintenance plan as part of the
notification package. A number of
commenters asked how a prospective
permittee would comply,-with this
requirement for the maintenance of an
SWM facility that does not have a
maintenance plan, Other commenters
asked who would approve the
maintenance plan if State and local
entities did not require such a plan.
Many commenters requested guidance
as to what information would be
required for the maintenance plan.
We are proposing to adopt a tiered 0
approach when assessing the need for, •
and the amount of, maintenance at the
facility. First, if a State or locally
approved plan currently exists, that
plan must be submitted as part of the
notification package. If a plan does not '
exist, drawings of the'original design
capacities and design configurations '
should be submitted. Finally, if no plan'
and/or drawings exist, the best
professional judgment of the Corps,
with input from the manager of the
facility, will be used to determine if the
maintenance activity is authorized by
this NWP. As for the content of the
maintenance plan, if existing State or
local requirements are in place
regarding the development of such a
plan, their standards will normally be
accepted. If there are no such
requirements, the plan should generally
discuss the frequency and amount of
maintenance which is required to
" ensure the facility functions as
designed. If no plan currently exits, a
new plan should be submitted for any
requests for maintenance under this
NWP. '
A number of commenters requested
that the Corps add a condition to this
NWP requiring a statement from the
applicant that explains how losses of
waters of the United States were.
avoided and minimized on-site and why
additional minimization cannot be
achieved. Some commenters stated that
compensatory mitigation should be
required for all SWM facilities and some
suggested that the mitigation proposal
mitigation should not be allowed in
designated facility maintenance areas.
Several commenters urged the Corps to
reiterate that no compensatory
mitigation is required for losses
resulting only from maintenance
excavation. Other commenters stated
that compensatory mitigation should
not be required for SWM facilities in
areas that may provide more
environmentally sensitive planning and
benefits to the. aquatic environment than- •
•placing those facilities in uplands..
Other commenters asked whether"
mitigation credits^can be gained through
.the use of bioengiheering techniques-
and aquatic benches.
We have added a provision to the ,
proposed NWP (paragraph (d)),
requiring the prospective permittee to
submit a-written statement explaining
how avoidance and minimization, to the
maximum extent practicable, v/as
achieved on the project site. Paragraph
(c) (3) requires the prospective permittee
to submit, with the notification, a •
compensatory mitigation proposal to
offset losses of waters of the United
States resulting from activities
authorized by this NWP. Maintenance
activities typically do not result in
-losses of waters of the United States if
d}ey are conducted in designated
maintenance areas. Therefore,
compensatory mitigation for
maintenance activities within a
currently serviceable SWM facility will
not be required in most circumstances.
Compensatory mitigation areas within
' an SWM facility should be designated as
non-maintenance, areas. If maintenance
is required in a designated non-
maintenance area used for
compensatory mitigation, then, the
permittee may be required to provide
compensatory mitigation for that
maintenanee activity. District engineers
will determine if compensatory
mitigation is necessary to ensure that
the authorized work results only in
minimal adverse effects on the aquatic
environment. If the SWM facility is not
currently serviceable and requires
reconstruction, compensatory mitigation
may be required if the District Engineer
determines that it tenecessary to ensure
that the adverse effects on the aquatic
environment are minimal.
Compensatory mitigation can be
located within an SWM 'facility,
provided it is not located in designated
maintenance areas. It is at the discretion
of the District Engineer to determine if
it is appropriate to include
compensatory mitigation (i.e., wetland
restoration, creation, or enhancement)
within a particular SWM facility.
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,'ol. 64, >.'o. 139 /Afednesday. July 21. 1999/Notices
39329
'he sediment in a specific area of the
SWM facility. Where the SWM facility
provides substantial environmental
benefits and/or improves the aquatic
environment, compensatory mitigation
may not be required. Any future
maintenance of the SWM facility
conducted in designated maintenance
areas identified in the maintenance plan
w.ill.not require additional
compensatory mitigation* It is at the
discretion of district engineers whether
to allow mitigation credits to become
established at a SWM facility
constructed with bioengineering'
techniques and aquatic benches.
Howe,ver, since SWM facilities must be
regularly maintained" to retain their
effectiveness, they should not be used to
establish mitigation credits for
permanent losses of waters of the
United States.
• Many commenters recommended
conditions to he-added to the proposed
NWP. One commenter suggested
prohibiting discharges into fish habitat
and requiring riparian buffers. Another.
commenter recommended-prohibiting
use of the NWP within 200 feet of
streams or rivers that contain habitat for
salmon. One commenter stated that
intermittent streams provide valuable
salmon habitat and should receive the
same protection as perennial streams.
One commenter requested that the NWP
contain a condition prohibiting-
construction and maintenance during
the spring and summer nesting periods
of birds protected under the Migratory'.
Bird Treaty Act and prohibiting work in
streams during anadromous fish
migration periods. A commenter
requested a condition to require
maintenance of base flows of streams
during low flow periods to protect
aquatic species. One commenter
recommended adding a condition
requiring the project proponent to
demonstrate-that environmental
enhancement throughout the life of the
project will result from 'the SWM
project. •' _. L
Conditions for'specific fisheries and
migratory bird concerns archest:
addressed through the reglfinal and
case-specific special conditions'. This .
NWP can be regionally conditioned to
prohibit the construction1 of SWM
facilities in intermittent streams that .
support .important fisheries. General
Condition 21 requires the permittee to
maintain, to the maximum extent
practicable, preconstruction
downstream flow rates, including
stream base flows. It is unnecessary to
require the permittee to demonstrate
that the SWM facility will enhance the
aquatic environment throughout the life
of the project. The purpose of SWM is
.- .,
to prevent or Je.duce,furthe,r degradation
of the aquatic environment, especially
water quality. District engineers will
review PCNs for certain SWM activities
to determine if the proposed work will
result in minimal adverse effects on the
aquatic environment. If the adverse
effects are more than minimal,
discretionary authority will be exercised
and an individual permit will be
required. •• • ' ,
-. One commenter stated .that the NWP
should specifically authorize sediment
control structures. Another commenter '
requested clarification as to whether or .
not this NWP authorizes in-stream"
sediment retention and detention
basins. One commenter suggested
prohibiting construction of concrete or
rip rap-lined channels. A commenter
asked for a definition for water control .
structures and emergency spillw,ays''and
to delete the word "emergency" in the
introductory paragraph of the NWP.. One
commenter recommended requiring best
management practices to prevent
downstream impacts of stormwater
ponds, including-retention facilities,
such as holding and treating "first
flush" from impervious surfaces.
The proposed NWP does not
authorize sediment control structures
(e.g., silt fences and check dams) unless
they are a part of an SWM facility. The
intent of the opening paragraph of this
NWP is to provide examples of
authorized activities, not an inclusive
list. For activities that require
notification, district engineers will
determine which SWM facilities are
authorized under this NWP. Water
control structures control the flow of
water and may impound a certain
volume of water. It is unnecessary to
delete the word "emergency" as a
modifier of the word "spillways',"
because the purpose of emergency
spillways is to provide an outlet for
larger volumes of water and prevent an
emergency situation from developing
due to a large amount of water placing
pressure on the dam, which may cause
the dam to fail. Best management
practices to prevent downstream °
adverse water quality effects of SWM
ponds are best addressed through the
401 water qifality certif leaden. . ---*
A few commenters requested that the
Corps expand the NWP to authorize the -
construction of flood control facilities.
One commenter requested that the NWP
authorize the construction of drainage
conveyances such as culverts, canals,
and ditches, as well as dam and/or weir
construction. One commenter stated
that the Corps needs to distinguish
between SWM facilities authorized by
this NWP and the flood control facilities
authorized by NWP 31.
SWM facilities are constructed to
control stormwater quantity ,ind quality.
SWM facilities provide some flood
control for certain storm events. NWP
43 can authorize the construction of
certain SWM facilities that also control
flooding during small storm events, but
larger flood'control facilities
. constructed in waters of the United
States must be authorized by other
NWPs, regional general permits, or
individual permits. Drainage facilities
are not authorized by this NWP,. unless
they are part of an SWM facility. NWP
31 authorizes the maintenance of flood
control facilities, not the construction of
new flood control facilities.
This NWP is subject to proposed
General Conditions 25, 26, and 27,
which will-substantially reduce its
applicability. General Condition 25 . '
prohibits the use of this NWP to
authorize discharges into designated
critical resource waters and wetlands
adjacent to those waters. General
Condition 26 prohibits the use of this
NWP lo authorize discharges resulting
in the loss of greater than 1 .acre of
impaired^waters, including adjacent
wetlands. NWP 43 activities resulting in
the loss of 1 acre or less of impaired
waters, including adjacent wetlar?ds. are
prohibited unless prospective permittee
demonstrates to the District Engineer
that the activity will not result in further
impairment of the waterbody.
Notification to the District Engineer is
required for all discharges into impaired
waters and their adjacent wetlands.
General Condition 27 prohibits the use
of NWP 43 to authorize permanent,
above-grade fills in waters of the United
States within the 100-year floodplain.'
In response to a PCN, district
engineers can require special conditions
on a case-by-case basis to ensure that
the adverse effects on the aquatic •
environment are minimal or exercise
discretionary authority to require an '
individual permit for the work. The *
•issuance of thfs NWP, as with any NWP,
provides for the use of discretionary
authority when valuable or unique-
aquatic areas may be affected by these
activities; This NWP, proposed as NWP
C in the July 1, 1998, Federal Register
notice, is designated as NWP 43, with
the proposed modifications.discussed
•'above.
44. Mining Activities
During the 1996 NWP reissuance
, process, we proposed an NWP for
Mining Operations. Based upon
comments and information gathered
during this process, we decided to
encourage the development of regional
general permits, rather than develop
specific limits to meet the minimal
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Federal
Register/Vol. 64, No. 1397 Wednesday, July 21. 1999/Notices
adverse effects requirement of Section
404(e). As a part of the initiative to
replace NWP 26. the aggregate and hard
rock/mineral mining industries
provided information and proposed
draft NWPs that they believed would
satisfy the minimal adverse effect
criterion. We evaluated that information
and in the July 1. 1998. Federal Register
notice, proposed NWP E for aggregate
and hard rock/mineral-mining activities.
As a result of the comments we recer^ed
in response to the July 1. 1998. Federal .
Register notice, this NWP has been
substantially modified. Many
commenters stated that the proposed
NWP E was too complex, difficult to
understand, and too confusing. A
number of commenters expressed •
uncertainty about the applicable waters
for.the NWP. the limits of work, and
wh'tch activities coulsd be co'nducted
under the NWP.
General Comments: Many ,
commenters expressed opposition to the
proposed NWP. Numerous commenters
objected to the proposed NWP because
they believe that it authorizes activities
with more than minimal adverse effects
on the aquatic environment, especially
water quality, aquatic habitat, fish and
shellfish populations, and hydrology, as
well as adjacent landowners. A large
number of commenters stated that
aggregate.and hard rock/mineral mining
activities should be subject to the
individual permit process and public
interest review. Other commenters said
that the NWP should not be issued
because It authorizes activities that are
not similar in nature. Two commenters
recommended that regional general
permits should be developed in each
state instead of an NWP. Several
commenters objected to the proposed
NWP because they believe it is too
complex. A commenter objected to the
proposed NWP because the commenter
believes that the preamble falls to
explain why a mining NWP Is needed.
A number of commenters recommended
that the Corps issue a separate NWP for
aggregate mining activities. One
commenter suggested that the Corps •
Issue a separate-NWP for crushed stone
operations.
We believe that certain aggregate and '
hard rock/mineral mining activities can
be authorized by NWP if that NWP is
properly conditioned to protect the
aquatic environment The scope of this
NWP has been reduced from the
proposed NWP E published in the July
1, 1998, Federal Register. We have also
substantially restructured die proposed
NWP to make it easier to understand.
The activities authorized by this NWP
This NWP may be suspbnded or revoked
in certain areas, particularly those areas
inhabited by economically important
fish, such as salmonids. Division
engineers can regionally condition this
NWP to protect locally jimportant
aquatic resources. It is unnecessary and
impractical to withdra\y this NWP and
direct our districts to develop regional
general permits. A large number of
regional general permits for mining '•
activities would create confusion for die
regulated public, especially for those •
companies that have mining operations
across the country. This NWP is
necessary because aggregate mining and.
hard rock/mineral mining have been
authorized by NWP 26 !in the past. We
do not believe it is necessary to develop
• separate NWPs for aggregate mining, and
crushed stone mining activities.
Scope of waters: In die July 1, 1998,
Federal Register notice, we structured
the proposed NWP E based' on the types
of waters impacted by either aggregate
or hard rock/mineral mining activities.
There were several categories of waters
in the proposed NWP. Those categories
of waters included: lower perennial
riverine systems, intermittent and" .
ephemeral streams, intermittent and
small perennial streanv relocations,
isolated wetlands, wetlands above the
ordinary-high water mark in non-
Section 10 waters, and 'dry washes and
arroyos. Many commenters supported
the expanded scope of waters, compared
to the applicable waters for NWP 26.
1 Two commenters objected to this'NWP
because it was applicable to all non-
tidal waters, instead of only headwaters
and isolated waters. One commenter
stated that the July 1, 1998, Federal
Register notice did not clearly explain
why sand and gravel mining, crushed
and broken stone mining, and hard
rock/mineral mining were authorized in
different types of waters. One
commenter recommended that this
NWP authorize mining activities on|y in
large river systems to protect smalLF f
=streams and creeks. One commenter
"suggested that all of the types of
loplicable waters for NWP E should be
oased on a standard classification
system, such as the Cowardin
classification system, so that there will
be more consistent implementation of
the NWP. One commenter stated that
this NWP should not authorize work in
streams, especially those streams that
support fish spawning areas.
As a result of our review of the
comments received in response to the
July 1. 1998. Federal Register notice, we
have reduced the applicable waters for
die proposed NWP by Excluding certain
authorized activities will result in
minimal adverse effects on the aquatic
environment and simplify the NWP to
~.ake it easier to understand. We have
limited the types of waters where
mining activities can occur under this
NWP to: lower perennial streams (i.e.,
lower perennial riverine subsystems as
defined by the Cowardin classification
system for wetlands and deep water
habitats), isolated-waters, streams where
the average annual flow is 1 cubic foot""
per second orless, and non-tidal. .
wetlands adjacent, to headwater streams.
Aggregate mining is not authorized in
waters of the United States within 100
feet of the ordinary high water mark of
streams where the average annual flow
is greater than 1 cubic foot per second.
This NWP does not autiiorize hard rock/
mineral mining activities in streams, or
in waters of die United States widiin
100 feet of the ordinary high water mark
of headwater streams. Aggregate and
hard rock/mineral mining are not
authorized in non-tidal wedands
adjacent to streams where die average
annual flow is greater than 5 cubic feet
per second.
There are different applicable waters
for different types of mining activities
because not all types of materials are
found in die same waters. For example,
the substrate of lower perennial riverine
subsystems, by definition, contains
mostly mud and sand. To obtain larger
aggregates, die mining operation-must
go upstream to upper perennial streams,,
as well as intermittent and ephemeral
streams. We do not believe that it is
practical or necessary to restrict the
proposed NWP only to large riverine
systems. We have reduced die
applicability of diis NWP in smaller
streams to ensure that the adverse
effects of these mining activities^will be
minimal. Notification is required for all.
activities authorized by this NWP. If a
district engineer reviews a PCN and
determines that die proposed work will
result in more than minimal adverse
effects on«the aquatic environment, dien
discretionary authority will be exercised
and an individual permit will be
required. We are not aware of a
classification system diat will allow
district engineers to better control
adverse effects on the aquatic
environment and make the NWP easier
to implement For example, the
Cowardin classification system is based
on a scale that is too large for the
purposes of this NWP. The scale of the
upper perennial riverine subsystem is
too broad to provide district engineers
with the type of contrdl that Is necessary
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39331
scnie allows us to better control impacts
to the aquatic environment.
We have reduced die applicability of
the proposed NW'P in streams, to better
protect those streams that support fish
spawning areas. The proposed NWP E
authorized discharges into intermittent
and ephemeral streams, and authorized
the relocation or diversion of
intermittent-and small perennial
streams. In the proposed NWP 44, .-
aggregate mining activities can occur in
lower .perennial streams or streams . •
where the average annual flow is 1
ctjbic foot per second or less. •
Intermittent streams with average
annual flows of greater than 1 cubic foot
per second cannot be mined for .
aggregates under this NWP. Hard rock/
mineral mining is not authorized in
streams. • .
One commenter stated that the NWP
should authorize hard rock mining
activities in odier waters of the United
States, in addition to dry washes and
arroyos. Three commenters requested
that defmitions-of the terms "dry
washes" and "arroyos" should be
included in the NWPs. One commenter
said that ephemeral streams, dry
washes, and arroyos should not be
included in the NWP because of the
recent United States v. James J. Wilson,
133 F. 3d 251 (4th Ctr. 1997) decision.
We dp not agree that hard rock/
mineral mining activities should be
authorized in streams because the
potential for more than minimal adverse
effects on the aquatic environment is too
great. To further protect streams from
die adverse effects of hard rock/mineral
mining activities, we are proposing to
add a condition to diis NWP requiring
that beneficiation and mineral
processing cannot oceur within 200 feet
of the ordinary high water mark of any
open waterbody. Since we have
removed the terms "dry washes" and
"arroyos" from die NWP, we do not
need to include definitions of these
terms. It is important to note that the .
United'States y. James J. Wilson
decision applies only-to the states in the
4th Circuit (i.e., Maryland, West
Virginia, Virginia, North Carolina, and
Soudi Carolina). Other areas of the
country are not subject to this decision.
Authorized Activities: One
commenter stated that several
paragraphs of NWP E appear to
duplicate each odier and should be
combined to simplify the NWP. Another
commenter said that die types of mining
audiorized by this NWP generally result
in similar impacts and do not need to
be distinguished between each other in
the NWP, A large number of
commenters stated that the term
appropriate when describing .the
authorized activities and the acreage
limits for those activities. One
commenter recommended that the NWP
clearly define what types of activities
are considered to be mining activities,
because many mining sites are managed
for multiple land uses. This commenter
stated that die NWP should not allow
•use of diis NWP for die mining activity
and another NWP for another activity on '
that parcel of land. One commenter
recommended diat the NWP include a
condition addressing mechanized
landclearing when that activity results
in a deepening of waters of the United
States instead of replacing diose areas
with dry land. One commenter stated
diat diis NWP should be limited to
"authorizing access corridors for mining
drag lines and prospecting activities, not
die actual mining activity. • ':'
We have removed the duplication
widiin the proposed NWP to make it
simpler and easier to understand. In diis
NWP, we use die term "discharges of
dredged or fill material" instead of
"filling" because it is die standard
terminology for the Section 404
program. "Filling" is not die only
activity diat can result in a discharge
into waters of the United States. In
certain circumstances, excavating,
draining, or flooding waters of the
United States can be considered as
discharges regulated under Section 404
of die Clean Water Act. On a case-by-
case basis, district engineers will
determine what constituted "mining"
for the purposes of diis NWP. If a tract
of land is managed for multiple uses,
district engineers must determine if
each land use constitutes a separate
single and complete project (i.e., each
activity has independent utility from die
other activities on the parcel). If an
activity on the land tract has
independent utility and constitutes a
separate single and complete project, .-
another NWP can be used to authorize '
that activity, if it meets the, terms and
conditions of Chat NWP. Mechanized
landclearing that changes, the use of a
water of die United States mustbe
calculated in the acreage loss for the
mining activity, but we do not believe
diat it is necessary to add a condition to
diis NWP to address this specific • •
situation. Limiting this NWP. to the .
construction of access corridors for
mining draglines and prospecting
activities radier than the mining activity
is illogical, because Section 404
audiorization is still likely to be
required for the mining activity itself. If
an individual permit Is required for the
mining activity, that permit would
corridor, if it is constructed in wntcrs of
the United States.
One commenter suggested that
aggregate mining activities authorized
by this NWP should include die mining
of fill dirt, shell, and clay, including
Fuller's earth and kaolin. Another
commenter recommended diat NWP E
should be modified to audiorize die
mining of fill material for 1-evee and
embankment construction,
reconstruction, and repair.
We do not agree that clay mining •
should be. included in the NWP, because ,
it is.a fflining activity that is.beat
addressed at a district level through
regional general permits.'The excavation
of fill d-irt from waters of the United
.States, particularly wetlands, is likely to
result in more than minimal adverse
effec-s on die aquatic environment,
because fill dirt for construction,
including the construction and repair of
levees, can be easily obtained from
upland areas, and audiorizing'the
extraction of soil from wedands'to
construct levees and embankments "by
an NWP is unwarranted. If fill material
cannot be obtained from upland areas,
then die removal of soil from waters of
die United States to provide fill material
can be'authorized by another NWP,
such as NWP. 18, a regional general •
permit, or an individual permit. • .
The mining of shell is also "
inappropriate for authorization by this
NWP, because the potential impacts of
this type of mining activity may be more
than minimal, especially in estuarine
waters where areas of fossil shell
provide valuable habitat for fish.
Proponents of shell mining can obtain
audiorization through die individual
permit process or other available general
permits.
Two commenters objected to die
exclusion of hard rock/mineral mining
from intermittent and ephemeral
streams. Two commenters objected to
prohibiting hard rock/mineral mining
activities in lower pereanial riverine .
systems. Anodier commenter requested
clarification as to which' -types of hard ^
rock/mineral mining activities are .
audiorized by diis NWP and the .'
categories of waters in which those
activities can take place. One
' commenter suggested that the NWP
prohibit beneficiation and mineral
processing in Waters of die United
States, to minimize' potential spills and
releases of toxic substances.
Hard rock/mineral, mining activities
have greater potential for more than
minimal adverse effects on the aquatic
environment than aggregate mining
activities. There are considerable
differences in the impacts associated
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Federal Register/Vol. 64. No. 1397Wednesday, July 21, 1999/Notices
materials. Hard rock/mineral mining
acrivictes require processing that may
result in discharges of chemical
compounds In the water column, which
can substantially alter water quality.
Hard rock/mineral mining activities
often require a Section 402 National
Pollution Discharge Elimination System
permit for effluent discharges associated
with ore processing techniques. Hard
rock/mineral mining is authorized only
tn isolated waters and non-tidal
wetlands adjacent to headwater streams
tf.e,, streams where the average annual
flow is less than 5 cubic feet per
second). No hard rock/mineral mining is
authorized in waters of the United
States within 100 feet of ordinary high
water mark of streams. The proposed
• NVVP does not authorize hard rock/
mineral mining, including place'mining,
in any streams, including lower "
perennial riverine systems. To protect
streams-and other open waters, we are
proposing to condition this NWP to •
prohibit beneficiation and mineral
processing within 200 feet of the
ordinary high water mark of any open
waterbody. • ;•
One commenter stated that the NWP
should not authorize'discharges of fill '
material into waters of the United States
for support features such as haul roads,
crushers or other ore processors, and
berms. Two commenters requested
clarification concerning which
stormwater management facilities can
be authorized as mining support
activities and which stormwater
management facilities can be authorized
under the new NWP for stormwater
management facilities.
Support facilities are essential
components of a mining operation and
should be authorized as part of the
. single and complete mining project.
Support facilities authorized by this
NVVP include berms. access and haul
roads, rail lines, dikes, road crossings,
settling ponds and settling basins,
ditches, stormwater and-surface water *
management facilities, head cut
prevention, sediment and erosion
controls, and mechanized landclearing.
District engineers will review
preconstruction notifications for mining
activities authorized by this NWP to
determine if the mining activity, and
any associated support activities'in
watefs of the United States, will'result
In more than minimal'adverse effects on,
the aquatic environment. Stormwater
management facilities that are required
for a mining activity can be authorized
by this NWP as a support activity.
District engineers-will- determine on a
case-by-case basis which types of
stormwater management facilities ma
proposed modification of General
Condition 15. this NWR usually would
not be combined with NWP 43 for
stormwater management facilities, since
the maximum acreage loss cannot
exceed the acreage limit of the NWP
with the highest specified acreage limit.
Since NWP 44 has a limit of 1 acre for
support activities.-including stormwater
management facilities, NWP 43 cannot
be used with NWP 44 to authorize a
stormwater management facility that
results- in the loss of greater than 1 acre
of waters of the United States.
Several commenters objected to the
provision in this NWP'that requires
measures to prevent adverse effects to
groundwatgr resources,, stating that
protection of groundwater is the
responsibility of the states. We agree
with this.comment, and have -removed
this provision from the proposed NWP.
A large number of commenters stated
that stream relocatioi| and.diversion
activities for aggregate mining activities
should be authorized in ephemeral and
intermittent streams and small
perennial streams. One commenter
requested that the Corps clarify whether
the phrase "small perennial, stream
relocations" refers to the size of the
stream to be relocated or the amount of
stream to be relocated. One commenter
stated that channel relocation should
not include decreasing the length of the
stream channel. Another commenter
requested that' the' Corps explain why ..
other mining activities cannot be
conducted in intermittent and small
perennial streams, other than relocation
and diversion. One commenter
suggested that the Corps specify
whether or not the discharge of dredged
or fill material into ephemeral or
intermittent streams is authorized by the
stream relocation/diversion provisions •
of the NWP. One commenter
recommended prohibiting stream
relocation and diversion activities, as
well as the construction of berms, from
this NWP. ' -i ' . •
Due to the potential for more than
minimal adverse effects on the aquatic
environment, especially fish habitat, we
" have removed stream relocation and.
diversion as a specific activity
authorized by this NWP. ;Fpr the
proposed NWP, in-stream aggregate
mining activities are limited to lower
perennial streams (i.e,, lower perennial
riverine subsystems described In the
Cowardin classification system) and
streams where the average annual flow
is 1 cubic foot per second or less. This
NWP does not authorize hard rock/
mineral mining activities in streams,
including stream diversion or
relocation'. In stream segments wl
per second or less, the stream channel
may be excavated by the aggregate
mining activity.
Acreage Limits: In the July 1, 1998,
Federal Register notice, we requested
comments on the proposed acreage limit
for this NWP. We proposed 2 acre and
3 acre limits for the NWP. Two
commenters supported the 3 acre limit.
Many commenters recommended the 2
acre limit. Several commenters stated •*
that a 3 acre limit is too high. Two
commenters suggested a limit of 'A acre.
Many commenters said that the 3 acre
limit is too low. One commenter
suggested an acreage limit of 5 acres,
stating that mine operators are
proficient at site reclamation and
wetland construction. Several
commenters recommended a' 10 acre
limit for this NWP. A large number of
commenters advocated the use of a
. sliding scale to determine the acreage
.limit for this NWP. Many commenters
recommended the use of a sliding scale
similar to the one proposed for NWP B
for master planned development
activities.
To ensure that this NWP authorizes
only those mining activities that result
in minimal adverse effects on the
aquatic environment, we are proposing
a 2 acre limit for a single and complete
mining project. We do not believe that, '
it woyid be practical to utilize a sliding
scale to determine the acreage limit for
this NWP, because a primary purpose of
a sliding scale is to encourage the
prospective permittee to further avoid
and minimize losses of waters of the
United States. For aggregate and hard
rock/mineral mining activities, on-site
avoidance and minimization is more
difficult to accomplish because the
miners need_to extract materials from
specific areas (i.e., where sufficient
aggregates have accumulated or where
the densest deposits of ore are located)
and in quantities sufficient to make the
mining activity economically feasible.'
One commenter stated that 'different
acreage limits for different types of
waters is too confusing and suggested a
single acreage limit for the NWP. One
commenter recommended that impacts
to lower perennial riverine systems,
isolated wetlands, and dry washes and
arroyos should be limited to 1 acre.
Another commenter suggested an
average 1 acre limit for each type of
water listed in the NWP. One
commenter asked why the acreage limits
for losses of open waters and wetlands
was 2 acres but the loss of intermittent
and ephemeral stream bed was limited
to 1 acre. Several commenters supported
a higher acreage limit for activities in
ephemeral strear
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39333
activities is too low for the permit to be
useful.
: We are proposing a single acreage
1 limit for this NWP (i.e.. 2 acres for a
: single and complete project, including a
maximum of 1 acre for support
[ activities). We have also simplified the
applicable waters for the proposed •
: NWP. The acreage limit applies to all of
the activities authorized by this NWP.
i for a single and complete'project! We
] believe that the 1 acre limit for support
; activities is adequate.' If the project
i proponent requires additional impacts
for support activities, the mining .
activity may be authorized by another •
;' r NWP, a regionalgeneral permit, or. an
i individualpermit.
;' 'A commenter stated that the NWP
' should h,ave similar-acreage limits to, the •
other new NWPs, because there is no
justification for more restrictive limits.
A. number of commenters suggested
imposing linear limits on stream »
: impacts.. One commenter recommended
1 a 250 linear foot limit whereas another
; commenter recommended a 500 linear
foot limit. A few commenters supported
the lack of a linear limit for stream
impacts.
We believe that an acreage limit is
' more appropriate for mining activities
because the proposed NWP
substantially limits the amount of.ln-
stream mining that can be authorized by
- this NWP: For aggregate mining
activities in streams where the average
annual flow is 1 cubic foot per second
or less, the adjacent land will usually be
mined with the stream bed. This is
another reason to use an acreage limit
instead of a linear foot limit. In
addition, the use of acres instead of
linear feet to determine the limit for this
. NWP allows consistent application of
; the NWP limits across the different
i categories of applicable waters.
'. Aggregate mining activities in lower
perennial streams are adequately
assessed on a acreage basis since lower
perennial streams tend to have large
channels. •
One commentenstated that acre'age
limit calculations should be based
solely on the direct effects of the -
dredging or filling activities, "not
indirect effects. One commenter said
that a relocated stream channel which
duplicates' the functions and values of.
the original stream channel should not
be considered a loss and should hot be
countecUdwards the acreage limit of the
•NWP.
The acreage loss of waters of the
United States that results from filling,
excavating, draining, or flooding is used
to determine whether the proposed
work exceeds the terms and limits of the
NWP (see die definition of "loss of *
waters of trie U'nited.States"**in t.fve
"Definitions" section of the NWPs).
This is the standard definition used in
the NWP program. Although stream
relocation and diversion activities no
longer constitute a specific part of the
proposed NWP, these activities may
occur in aggregate mining operations in
streams'where the average annual flow
is I cubic foot per second or less,
because the adjacent land will usually
be mined with the stream bed. The
stream channel may be reestablished in
a different location after the mining
activity is completed. Stream relocation
and diversion activities that fill and
excavate the stream bed cause the loss
of waters of the United States. It may
take years before the relocated or
diverted stream channel achieves
similar aquatic functions to the original
stream channel. Any stream relocation
and diversion activities are included in
the acreage loss measurement for this
NWP.
Notification Thresholds: In the
proposed NWP, preconstruction
notification (PCN) was required for all
authorized activities. One commenter
concurred with this notification
' threshold. Several commenters
recommended imposing notification
thresholds similar to the other proposed
6 NWPs. Two commenters suggested that
PCNs should be"required for activities
impacting 150 linear feet or more of
stream bed or Vs acre or gr-eater of
wetlands. One commenter proposed tiiat
PCNs should be required only for
activities impacting 1 acre or more of
waters of the United States. A number
of commenters suggested that the PGN
threshold for activities in dry washes
and arroyos should be_higher than for
activities in otfier types of waters. One
of these commenters recommended a 5
acre PCN threshold for activities in
ephemeral streams, with agency
coordination for the loss of 10 acres or
greater of ephemeral stream bed. One
commenter suggested agency
notification for mining activities
impacting greater .than Vs acre. Anodier
commenter suggested extending the
agency coorbTfnation period to 30 days •
to allow those agencies to conduct a
more thorough review of potential water
quality impacts.
We are proposing to retain the
original PCN threshold for tiiis NWP,
'which requires preconstruction
notification for all activities authorized
by.diis NWP. District engineers will'
review proposed mining activities,
including measures to minimize or
avoid adverse effects to waters of the
United States and reclamation plans.
This PCN requirement Is necessary to
ensure that the NWP authorizes only
those activities with minimal adverse
effects on the aquatic environment,
individually or cumulatively. Agency
coordination will be conducted for
mining activities resulting in the loss of
greater than 1 acre of waters of the
United States. Compliance with General
_ Condition 9, including the proposed
requirement for a water quality
management plan, will help ensare unat
the authorized work will not result in
more than minimal adverse effects on
local water quality.
Notification Requirements: In the
proposed NWP E, the notification was =
' required t-p include a description of all- ;
.waters of the'Unite'd States impacted by
the project, a discussion of measures'
taken to minimize or prevent adverse *
effects to waters :he United States, a
description of mt.,sures taken to comply
with the conditions of the NWP, and a
reclamation plan.
One commenter supported the
requirement that the applicant must
submit a reclamation plan with the
PCN. A couple of commenters
recommended that the applicant should
submit a statement from the agency
approving the reclamation plan. One
commenter requested diat die Corps
define the term "reclamation plan" and
several commenters asked die Corps to
specify what.should be .include'4 Irrthe .
plan. One commenter asked if the
requirement for a reclamation plan
refers to the complete plan for the entire
mining site that may be required by law
or a plan for restoring affected waters of
the United States and providing
compensatory mitigation for the losses
authorized by the NWP. Several
commenters stated that the requirement
for a reclamation plan should be
eliminated. A number of commenters
said that the reclamation plan
requirement is redundant with odier
Federal and state laws and should not
be included in the NWP.
The requirement for submission of a
reclamation plan with the PCN is not
• intended to supersede other Federal or-
State requirements. The District
Engineer will not require reclamation
perse, but will review -the-reclamation
plan to determine if compensatory
mitigation is required to offset losses of .
waters of the United States and ensure
that the individual or cumulative
adverse effects of the mining activity on
the aquatic environment are minimal.
The prospective permittee may submit a
statement from the Federal or State
agency that approves the reclamation
plan, with a brief description of
reclamation plan, especially the type
and quantity of aquatic habitats such as
wetlands and streams that •will be
restored, enhanced, created, and/or
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Federal Register/Vol. 64. No. 139/Wednesday, July 21, 1999/Notices
preserved for the mined land
reclamation. If there are no Federal or
State requirements for a reclamation
plan for a particular mining activity, the
applicant should state that fact in the
PCN. The District Engineer may require
compensatory mitigation for that
project, to ensure (hat the adverse
effects on the aquatic environment are
minimal. If die reclamation plan
required by Federal or S?ate law
adequately addresses compensation for
losses of waters of the United States,
then the District Engineer will not s
require additional compensatory '
mitigation, unless there are additional
concerns for the aquatic environment. •
A large number of commenters stsred
diat the reclamation plan requirement,
needs'to be changed because some
mining activities, such as in-stream
dredging, do not require reclamation. In
addition, these commenters were unsure
if this requirement applies to mining
activities outside of die Corps
jurisdiction. For land-based aggregate '
mining, reclamation may be required at
die end of the mining activity, but the
mining activity may occur for many
years. These commenters expressed
concern diat when a prospective
permittee applies for audiorization
under NWP E, reclamation Tor
previously audiorized mining activities
may not be completed. One commenter.
said that die NWP should contain more
specific reclamation requirements. This
commenter believes diat the mining
company should be required to submit-
a reclamation plan for each phase of a •
large ^mining operation, as each phase
proceeds. This commenter also
recommended diat die mining site
should be restored within a year after
operations cease, if possible. One
commenter stated diat die Corps ability
to deny NWP authorization based on
failure to complete reclamation for
previously authorized activities exceeds
die Corps authority because it is not
• reasonably related to water quality or
die discharge of dcedged or fill material.
One commenter said that a mining
activity diat may b'e eligible for
audiorization by NWP may not have,
done any reclamation, but is still In
compliance wldi Its reclamation plan.
This commenter said Uiat It is
unreasonable to require the submission
of a separate reclamation plan because -
of die regulatory oversight by other
agencies.
For diose mining activities diat do not
require reclamation, the applicant
should include a statement in die PCN
dial neidier State nor Federal
regulations require reclamation for die
proposed mining activity. If there are
the Corps jurisdiction (e.g., mining of
upland areas), it is unnecessary for the
prospective permittee co submit a
reclamation plan for those activities.
Long-term single and complete mining
projects may be authorized by diis
NWP. provided terms and conditions of
die NWP are met. The applicant can
submit a conceptual reclamation plan
widi die PCN or a statement describing
die reclamatibn plan-and intended
schedule, if die reclamation will not
take place until after die long-term
mining activity. The Corps can deny
NWP audiorizatipn if die prospective •'
. permittee has not complied with the
terms and conditions of previous Corps
permits, such as requirements to restore
affected waters of the United-States.
Conditions of the NWP: One
commenter stated that die measures to
minimize strea.m impacts are too vague
and inadequate^ to protect stream
stability and integrity. A commenter
objected to diis NWP, stating diat die
audiorized work results in significant
changes in stream morphology and the
NWP should require specific measures
to prevent diose significant changes.
Another eommenter recommended
modifying die prohibition against
excavating fish spawning areas or •
shellfish beds to require avoidanceof
activities causing degradation of these '
habitats through excavation, filling,
sedimentation caused by upstream
work, or odier harmful activities. One
commenter recommended adding tite
phrase "where;practicable"'in die,
requirement for necessary measures to
prevent increases in stream gradient for
mining activities in dry washes and
arroyos. Another commenter stated diat
die conditions of diis NWP are
unenforceable, because field verification
of spawning areas must be done by
agency personnel widi expertise in diat
area. One commenter stated that the use
of NWP E would result in non-
compliance widi Section 402 of die
Clean Water Act.
. The conditions of die proposed NWP
diat require measures to minimize
stream impacts will help ensure diat die
aggregate mining activities audiorized
by this. NWP will result in minimal
adverse effects on dig aquatic
environment The size of streams in
which diis NWP can be used has been
substantially reduced, which will also
protect die stability and integrity of
streams. For example, paragraph (e) of
die proposed NWP requires die
permittee to Implement measures to"
prevent increases in stream gradient and
water velocities to prevent adverse
effects to channel morphology. This
requirement allows die aggregate miner
stream bed to extract the sand, gravel,
and crushed and broken stone.
Aggregate mining is authorize'd only in
lower perennial streams or those stream
segments where die average annual flow
is 1 cubic foot per second or less. In
lower perennial streams, larger amounts
of sand can be removed without
substantially altering stream gradient
and water velocities because these
streams tend to occur on lari'd with
gentler slopes. Paragraph (e) requires the
permittee to conduct the mining activity
so that die audiorized work does not
have more dian minimal adverse effects
on channel morphology downstream of
die site of die in-stream mining activity.
Paragraph (d) of the proposed NWP
' states diat die audiorized activity must
not substantially alter die sediment--.
characteristics of concentrated shellfish
beds or fish spawning areas, either
.through discharges of dredged or fill
material or sediment.diat was
suspended in die water column by work
upstream of die shellfish bed or fish
spawning area. We are proposing to
modify General Condition 20, Spawning
Areas, to require diat activities <
authorized by NWP cannot physically
destroy important spawning areas by
smothering diose areas widi suspended
sediment generated upstream. In other
words, an in-stream mining activity .
audiorized by diis NWP must be -
conducted so diat it does not generate
a cloud of suspended sediment-diafwill
move'downstream and smother
important sp'awning areas.
District engineers will rely on local
knowledge, including any available
documented locations of important
spawning habitat and concentrated
shellfish beds to ensure compliance
widi paragraph (d) and General
Conditions 17 and 20. Federal and State
natural resource agencies may have
maps 8f these areas that district
engineers can use during dieir review of
PCNs for diese activities. Division
engineers can also regionally condition
this NWP to restrict or prohibit its use
''in designated waterbodies that contain
important fish spawning areas or
shellfish beds. Authorization of mining
activities by diis NWP dpes not
preclude die permittee from complying
widi die requirements of Section 402 of
die Clean Water Act
Use of this NWP with other NWPs:
.Many commenters supported die use of
diis NWP with odier NWPs because of
die acreage limits'of NWP 44. One
commenter recommended diat die use
of NWP E widi odier NWPs should be
allowed wldiout Imposing an acreage
limit
NWP 44 can be used widi odier
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.Notices
39335
N'WPs authorize a single and complete
project and comply with the proposed
modification of General Condition 15,
Use of Multiple Nationwide Permits.
Mitigation Requirements: Some
commenters said that the compensatory
mitigation requirements.for this NWP
were unclear in the July 1, 1998, "
Federal Register notice. A number of
co-mmenters suggested the NWP should
require restoration when the'mihing .
activity is compiete. A couple of • '• •
commenters said that on-site mitigation
should be preferred since .the mining
industry has demonstrated its ability to
perform successful .mitigation. A few • •
commenters stated th-dt requiring
compensatory mitigation foe these
activities replicates*State law and
exceeds the mitigation requirements for ..
other activities. A couple of commenters,
stated that the NWP should include'a
requirement that the permittee avoid or
minimize impacts. A commenter
•suggested that mitigation plans should
include monitoring and evaluation
standards to assist agencies in
evaluating the effectiveness of the
mitigation. Three commenters stated
that lands which were not previously
waters of the United States and which
develop wetland characteristics as a
result of mining reclamation should be
eligible for compensatory mitigation
credit.
The July 1, 1998, Federal Register
notice'contained a general statement
that compensatory mitigation would
normally be required for NWP activities
that require notification to the District
'Engineer. For this NWP, compensatory
mitigation may be provided through the
reclamation of the mined site, if
reclamation is required by other Federal
or State laws. If reclamation is not
required, the District Engineer can
require compensatory mitigation to
offset losses of waters of the United .
States resulting from the authorized ..
work and ensure that the adverse effects
on the a'quatic environment'are
minimal. Compensatory mitigation can
be provided through the establishment'
and maintenance of vegetated buffers
adjacent to streams and other open
waters, especially in the 100-foot wide
zone where no aggregate or hard rock/
mineral mining activities can occur (see
paragraph (k) and the last paragraph of
proposed NWP 44). • . . -
We are proposing to add a condition
to this NWP requiring the permittee to
avoid and minimize discharges into
waters of the United States to the
maximum extent practicable and to
include a statement detailing
compliance with this condition with the
PCN (see paragraph (c)). Compensatory
mitigation requirements, including '
monitoring and evaluation standards.
are at the discretion of district
engineers. Mine operators that create
wetlands in uplands as part of a
reclamation plan can use those created
wetlands as compensatory mitigation for
other activities that result in the loss of
wetlands, if those created wetlands are
self-sustaining and the land will not be
reVerted to uplands in.the future.
However, it is 'at the discretion of the
District Engineer to determine, on a_
ca'se-by-ca'se basis; if those areas can be
used as compensatory,mitigation;
A couple of eommenters said that
mitigation requirements for activities in
ephemeral streams should be l.ess .
because diese- areas provide minimal
. aquatic resources. Another'commenter
stated that-compensatory mitigation
requirements should specify in-kind
stream replacement. One commenter'
said that compensatory mitigation in .
excess of a 1:1 ratio is unfair. Another
commenter stated that mitigation
requirements should be the same as for
proposed NWPs A and B.. One
commenter expressed concern that
mining activities will result in-. .« »'
substantial cumulative impacts, and- '
recommended that the Corps encourage
mining companies to create on-site
mitigation banks to compensate for
losses of waters nf the United States
before they occur as a result of the
mining activity. A couple of
commenters believe that mine
"reclamation results in waters with
higher value than the impacted waters
and that it is counterproductive to place ,
restrictive conditions on this NWP. Two
commenters suggested that the creation
of vegetated littoral shelves should
count towards satisfying mitigation
requirements.
Specific compensatory mitigation
requirements-will be determined on a
case-by-case basis by district engineers. •
We do not believe that'll is practical to-
require mining companies to create on-
site mitigation banks to compensate for
losses of WatersTof-the United States
before the mining activity is conducted.
Mined land reclamation, if required, can
address compensation for losses of
waters of the United States, if the
'District Engineer determines dial die
reclamation adequately offsets losses of
' waters of the United States.
Clarification of Jurisdiction: In the
July 1, 1998, Federal Register notice, we
requested comments on a position
intended to clarify a long-standing
jurisdictional debate as to what areas
should be considered waters of the
United States as a result of mining,
processing, and reclamation activities.
In the July 1. 1998, Federal Register
notice, we proposed the following
position:
"Water-filled depressions and pits, ponds.
etc., created in any area not a "water of the
United States," as a result of mining.
processing, and reclamation activities, shall
not be considered "waters of the. United
States" until one pf the following occurs:
(1) All-construction, mining, or excavation
activities, processing activities and '
reclamation activities have ceased and the.
affected site has been fully reclaimed
pursuant to an approved plan of reclamation:
or
(2) All construction, mining, or excavation
activities, p'rocessing activities and
'reclamation activities-have'ceased for a
period of fifteen (15) consecutive years or the
property is no longer zoned for mineral .
. extraction, tho same or successive operators
are not actively mining on contiguous
properties^ or reclamation bonding, if
required, is no longer in place; and the
resulting body of wa'ter and adjacent
wetlands meet the definitlort of "waters of
the United States" (33 CFR 328.3 (a))." '
We received many comments
concerning the prop9sed position. Many
commenters supported the proposed
position, including the 15-year term.
One commenter recommended
incorporating tha:t text into NWP'-E.
Another commenter supported the
proposed position, but suggested that
the text include a provision stating that
water-filled depressions will not be
considered waters of the United States
as long as the area is actively mined,
including reclamation activities.
We do not believe it is necessary to
incorporate the text of this position into
the text of NWP 44. The position clearly
requires that the mining activity must
have stopped, and the reclamation
completed, before the area can be
considered a water of the United States.
Several commenters opposed this
clarification, because borrow pits can be
idle for,many years before they are used
again for mining activities. One
commenter objected to the proposed
position, stating that it,is a .- '
constitutional taking of property, °
especially since the Corps has taken the,,
position that water-filled depressions on '
landfill caps are not waters of the
United States. One commenter believes
that the proposed position is too
restrictive. Another commenter objected
to the proposed position, stating that
these'water-filled depressions become
.valuable habitats and help compensate
for mining damages. A commenter
opposed this position because it
contradicts the national goal of net
wedand gains advocated in the Clean
Water Action Plan. One commenter
stated that the Corps should assert
jurisdiction over areas subject to
voluntary abandoned mine land
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Federal Register/Vol. 64. No. 139/Wednesday. July 21. 1999/Notices
reclamation only when they are
accepted by the Corps as compensatory
mitigation for unavoidable impacts and
losses caused by mining activities.
The purpose of imposing a specific
time period in the text of this position
is to ensure that it is consistently
applied throughout the-country.and
provide certainty- for the regulated
public. This position is not contrary to
the Clean Water Action Plan', k is ' .«
Intended to comply with the
Administration's wetlands plan by
providing fairness to the regulated
public. By stating a specific time period,
mining companies can-anticipate when
the water-filled depressions they have
created can be considered waters of the •
United States, If die area meets the
definition of "waters of the United
States" at 33 CFR Part 328. The
development of water-filled depressions •
on landfill caps and the creation of
water-filled depressions as a result of
mining activities are completely
different situations, and have
substantially different public interest
and health implications. Water-filled
depressions on landfill caps are not
waters of the United States, as stated
elsewhere In this Federal Register
notice. The repair of die landfill cap is
necessary to reduce air and giroundwater
pollution. In contrast, water-filled
depressions created by mining activities
can develop into waters of the United
t Sta'tes. and provide valuable functions,
such as waterfowl habitat. Activities
that create aquatic habitats from upland
areas are not limited to compensatory
mitigation activities.
Two commenters said that the water-
filled depressions should be considered
waters of the United States 2 years after
the mining operation ceases. A number
of commenters recommended a 5 year
• period before those areas are considered
waters of the United States. Two of
these commenters said diat S 5 year
period is consistent with the current
regulatory Interpretations of "normal
circumstances." One commenter .
expressed concern diat die 15 year
period la too long, and would set an
Inappropriate precedent for the rest of
the regulatory program. One commenter
suggested that there should be no time
limit.
For the purpose of consistency in the
regulatory program, we are proposing to
change the time period from 15 years to-
5 years. The 5-year time period was
chosen because a 5-year period is used
by the Natural Resources Conservation
Service to determine if an area has been
aba- "d for the purposes of making
wetland characteristics have developed,
then that site is no longer considered
prior converted cropland. Therefore, for
both agricultural and mining activities,
if the area has not been used for any of
those purposes for 5 years or longer, it
can be considered abandoned, .and If the
area has developed characteristics of
waters of the United States, including
wetlands, during that period of •
abandonment, the area will be subject to
Section 404. • . - - .
One commenter was uncertain •
whedier die proposed position is
intended to be prospective, retroactive,
or both. A commenter suggested
modifying die definition of "waters of
die United States" to include water-
filled depressions created.as a result of
any extraction activities. A commenter
stated that the"zoning of the land, the
mine operator, and reclamation bonding
are irrelevant to the status of the-mining
pits as waters of die United States. One
commenter requested diat paragraph (1)
contain the phrase "* *; * reclamation
bond release has been obtained, if such ,
bond exists * * *" after die phrase
"* * * site has been fully reclaimed
* * *." This commenter also
recommended adding a definition of die
word "cease" to.the texjt, because thejre
may be different interpretations as to
when die 15-year period started. This
commenter also stated that not all ,
property is zoned for mining and this
requirement may cause confusion if
zoning is necessary to determine if an
area is a water of the United States.
Anodier commenter stated diat
paragraph (2) Is difficult to understand
and should be rewritten to make it
clearer. One commenter recommended
diat die 15-year time period should
apply to mining sites requiring
reclamation as well as those mining
sites diat do not require reclamation.
This proposed position will take
effect on the effective date of.this NWP.
If ajurlsdlctional determination Is
conducted on an area that was
previously mined, uien'this position-
will be used to help determine if die
area can be considered a water of die
United States or is part of an on-going
mining operation and hot a water of the
United States. This position is
applicable only to mining activities, not
odier types of extraction activities. The
preamble to 33 CFRPart 328.3 in die
November 13,1986) Federal Register
notice (51 FR 41206-41260) adequately
addresses water-filled depressions
created by other extraction activities.
We do not believe it is necessary to add
language addressing die release of the
"cease" is not needed, because it Is the
same definition in common usage. The
5-year period will start when all
construction, mining, extraction,
processing, and reclamation activities—
have stopped. The zoning of the land is
only one criterion that may be used to
determine if a ^ite will continue to be .
mined. The zoning classification, is not
necessary to determine if an area is a»
water of die United States. If a tract of
land was previously zoned for mining,
'and diat zoning classification was •' ' a
' changed to residential, dien the District
Engineer would us%t|jat information to
determine that the-m^ning activity has'
ceased. This position applies to all
mining sites, whedier or not reclamation
is required.
One commenter stated that voluntary
abandoned mined land reclamation and
remining can facilitate abandoned
minea land reclamation and result in
water quality Improvements in the
watershed. This commenter believes
diat if the Corps considers artificial
waters constructed for voluntary
abandoned mined land reclamation and
xemining to be waters of die United
'S-tates, it would deter voluntary
reclamation and/or remining because of
permit burdens and .mitigation costs. .
Two commenters suggested that the
Corps assert-jurisdiction over water-
filled depressions only'when.they have •
been accepted as compensatory
•mitigation. One commenter
recommended that NWP 21 contain this
position statement.
We do not believe diat die proposed
position will discourage voluntary
abandoned mined land reclamation.
especially if such reclamation can be
used as a mitigation bank. NWP 27 can
be used to audiorize wedand
enhancement, restoration, and creation
activities in waters of die United States
in areas diat may have been previously
mined. We'do not agree dial only areas
accepted as compensatory mitigation
should'be considered waters of die
"United States. District engineers can use
this position to determine if an area is
a water of die United States in
conjunction with mining activities.
authorized by NWP 21.
Based on the comments discussed
above, we are proposing to modify the.
position to make it easier to read, as
follows:
"Water-filled depressions (e.g.., pits, ponds,
etc.) created In any area not previously
considered a "water of the United States," as
a result of mining, processing, and
reclamation activities, shall not be
considered "water a of the United States"
'
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39337
ceased and the affected site has been fully
reclaimed pursuant to an approved
reclamation plan: or
(2) The resulting body of water and
adjacent wetlands meet the definition of
"waters of the United States" (see 33 CFR
Part 328.3 (a)), and any one of the following
criteria are met:
fa) all construction, mining, excavation,
processing, and reclamation activities have
ceased for a period of five (5) consecutive .
years: or
(b) the property is no longer zoned for
mineral extraction: or ' *
(c) the same or successive opefators are not
•actively mining on. contiguous properties: or
(d) reclamation bonding, if required. Is no
longer in place." '
The only substantive change in the
position is changing the time period
from -15 years to 5'years, as discussed
above.
Recommended Additional Conditions':
Several commenters suggested"
additional conditions to incorporate
into this NWP. Many of these'
suggestions are best addressed through
the regional conditioning process, so we
wi-11 only address those
o recommendations that have national
applicability in (his se'ction.
One commenter suggested that die
NWP should not be-used in watersheds
widi substantial historic aquatic
. resource losses. Another commenter
recommended that the,NWP should
contain .a condition addressing the
dispbs.il of dredged or excavated
material, wastes from washing minerals,
and resuspension of stream bed
materials diat may be contaminated.
One commenter suggested prohibiting
the NWP in areas inhabited by State-
listed endangered or threatened species,
species of special concern, or wild trout.
A commenter recommended that the
NWP contain a provision requiring zero
pollutant runoff or groundwater
contamination from die site, as well as
a bond to cover expenses incurred by
surrounding communities if the mine is
abandoned. One commenter
recommended adding a condition to die
• NWP requiring £hat die current mine
site must be successfully reclaimed
prior to receiving anodier Section 404
permit for anodier mining activity in die
same stream reach, and limiting die
losses widiin that stream reach to 2
acres.
Division and district engineers can
condition this NWP to prohibit or
restrict its use in areas where the
individual and cumulative adverse
effects of Section 404 activities on die
aquatic environment may be more than
minimal. A Section 402 permit, if
required, should address discharges of
wastes from washing materials and
runoff from processing; areas. District
diSG||tio:;nary
authority to restrict or prohibit the use
of this NWP to conduct mining
activities that will result in the :
suspension of contaminated sediments
in the water column. This issue can also
be addressed in the water quality
management plan required for activities
authorized by this NWP (see General
Condition 9). District engineers will
review PCNs for proposed mining
activities to determine which mining
activities constitute separate single and ,
complete projects'with ind'ependent
utility. • '
• Additional Issues: A number of
commenters recommended removing all
references to excavation from die NWP.
Another commenter stated that the"
proposed NWP appears to violate die
invalidation of the Tulloch rule. One'' .
commenter suggested diat the final'.'"
NWP clarify, that proposed mining
activities will be reviewed on a case-by-
case basis to determine if diere is a
discharge regulated under Section 404
of the Clean Water Act.
Excavation activities can result in
discharges of dredged or fill material
into waters of die United States. Many
of these activities were regulated under
Section 404 of die Clean Water Act prior
to the implementation of die Tulloch
rule in 1993. Therefore, we have not
removed references to excavation from •
this NWP. District engineers will review
PCNs to determine if the proposed
mining activity requires a Section 404
permit.
A number of commenters said that
this NWP should contain a provision
requiring die prospective permittee to
demonstrate that die work complies
with the National Historic Preservation
Act. Onerof these commenters objected
to die proposed NWP, stating diat
mining activities have resulted in die
destruction of numerous archeological ..
sites eligible for listing in die National
Register of Historic Places.
General Condition 12 already
addre'sses.this issue. This-general
condition requires compliance w'idi die
requirements of die National Historic
Preservation Act prior-to commencing
. die audiorized activity.
A number of commenters stated that
die NWP 26 data collected by die Corps
for mining activities is misleading
because die data has been collected for .
only a short time, die 500 linear foot
limit for filling or excavating stream
beds in NWP 26 made many mining
activities ineligible for NWP 26
audiorization, and die Tulloch decision
and enforcement policy has been
inconsistendy implemented.
Although data concerning mining
activities authorized by NWP 26 has
been collected for only a short period or"
time, we believe that this data can be
used to provide estimates of die
potential losses of waters of die United
States that may be authorized by this
NWP, since the scope of applicable
waters is more restrictive dian for NWP
26 (with the exception of aggregate
mining activities in lower perennial-
streams)'. In our environmental
assessment for this NWP, we will
consider additional sources of
information to estimate future impacts.
One commenter-recorh'mended that. .
this NWP should include a-definition'of
a single and complete project. Anodier
commenter^suggested diat the term •
'.'mining" should be clarified, since
mining in Florida refers to the excavated
material leaving the mining site; under
Florida's definition die extraction of
. material for on-site grading and filling •
would not be considered mining. Pne
commenter recommended diat die °
Corps develop a separate NWP for
reclamation projects authorized under
Title IV Abandoned Mine Land Program
of die Surface Mining Control and
Reclamation Act of 1977 or equivalent
State laws. , * .
The term "single and complete
project" is already defined at 33 CFR
Part 330.2(i). The District Engineer will
determine if die proposed activity
constitutes mining for die purposes of
this NWP. This NWP authorizes
reclamation activities in waters of die
United States associated with the
mining activity.
. This NWP is subject to proposed
General Conditions 25\ 26, and 27,
which will substantially reduce its
applicability. General Condition 25
prohibits die use of diis NWP to
audiorize discharges into designated
critical resource waters and wedands
adjacent to diose waters. General
Condition 26 prohibits die use of this
NWP tfi audio'rize discharges resulting,.
in. die loss-bf greater than' 1 acre of .. '<.
impaired waters, including adjacent
wetlands. NWP 44 activities resulting in
die loss of 1 acre or less of impaired-
waters, including adjacent .wedands, are
prohibited unless prospective permittee
demonstrates to die District Engineer
diat die activity will not result in further
impairment of die water body.
Notification to die District Engineer is-
required for all discharges into impaired
waters and dieir adjacent wetlands.
General Condition 27 prohibits the use
of NWP 44 to audiorize permanent,
above-grade .fills in waters of die United
States widiin the 100-year floodplain.
The proposed NWP will be used to
audiorize aggregate and hard rock/
mineral mining activities in certain
waters of die United States, including
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Federal Register/Vol.
64. No. 139/Wednesday, July 21. 1999/Notices
wetlands. In response to a PCN. district
engineers can require special conditions
on a case-by-case basis to ensure diat
the adverse effects on the aquatic
environment are minimal or exercise
discretionary audiority to require an
individual permit for the work. The
issuance of diis .NWP. as.with any NWP.
provides for the use of discretionary
authority when valuable or unique
aquatic areas may be affected by these
activities. Proposed NWP E is
designated as NWP 44, with the
modifications discussed above.
i
IV. Comments and Responses on
Nationwide Permit Conditions' •_"
A. Consolidation of General Conditions
and Section 404-Only Conditions •
In an effort to ensure consistent
application of die conditions for the
NWPs. we proposed in the July 1, 1998,
Federal Register notice to consolidate .
die "General Conditions" and "Section
404 Only" conditions into one set of
general conditions for the NWPs. This
consolidation is practical because most
of the Section 404 Only conditions
apply to activities in Section 10 waters.
This consolidation does not increase the
scope of analysis for determining if a
particular project qualifies for
audwization under die NW.P program.
As a result of die number 'of comments
we received In favor of diis
consolidation, all of die NWP ,
conditions will be combined into one
"General Conditions" section in die
NWPs. The opening language of former
Section 404 Only conditions 1. 2, 3. 4.
5, 7, and 8 (now designated as General
Conditions 16, 17, 18, 19, 20. 22, and •
23, respectively) has been modified to
read "activity [or activities], including
structures and work in navigable waters
of die United States and discharges-of
dredged or fiU material," to reflect their
application in Section 10 waters. Due to
the changes in die NWP general
conditions discussed below, die
numbers of some general conditions
differ from die numbering scheme in die
July 1. 1998, Federal Register notice. •
B. Corrlments on Specific General
Conditions
In response to die July 1,1998,
Federal Register notice we received
many comments on specific NWP
general conditions. As a result of our
review of diose comments, we are
proposing some changes to die NWP
general conditions, as discussed below.
Any changes made to die NWP general
conditions will apply to all of die
NWC -eluding die existing NWPs.
65922), when the proposed new and
modified NWPs become1:effective.
4. Aquatic Life Movements: One
commencer requested that we eliminate
the word "substantially'' from
Condition 4. Anodier commenter
•recommended replacing die phrase '
"^substantially disrupt" widi "'more than
mjnimaliy ^disrupt."
We- recognize that most work ih •
waters of the United States will result in
some disruption of movement of those
aquatic species that are indigenous to,
or pass dirough, those waters. District
engineers will determine if an NWP •"
activity results in substantial disruption
of die movement sf aquatic Qrganisms.
The word "substantially" has been
retained in this general condition. We
are also proposing to add a sentence to
this general condition to require that if
•culverts are placed in a stream as part
of die audiorized wodc, diey must be
installed so that low stream flows-will
continue to flow dirbugh die culverts.
9. Water Quality: In the July 1, 1998,
Federal Register notice, we proposed to
modify General Condition 9 by changing
its tide from "Water Quality
Certification" to "Water Quality" and
changing die text of die general
condition to require a water quality
management plan for activities
audiorized by existing NWPs 12, 14, 17,
18, 21, 32, and 40 and die new NWPs
39, 42, 43, arid 44 .(proposed as NWPs
A, D, C, and E, respectively; NWP ,B was _
later withdrawn from the new and
modified NWPs) if such a plan fs not
required by die State or Tribal 401 water
quality certification. The purpose of die
water quality management plan is to
ensure diat die project will have
minimal adverse effects on die aquatic
environment, especially by preventing
or reducing adverse effects to
downstream water quality and aquatic
habitat. An important part of a water
quality, management-plan can be die
establishment and maintenance of
vegetated buffers adjacent to waters of"
the United States. , .'
The majority of die commenters
asserted that die Corps had no statutory
audiority to impose Section 401 and L
Section 402 requirements for water -
quality and storm water management
plans and stated diat diese requirements.
overlap or duplicate, and often conflict
widi, State water quality certification
and National Pollutant Discharge
Elimination System (NPDES) programs.
One commenter stated diat die Section
401 water quality certification must be
issued prior to initiating die work under
die NWP, which makes die Corps
imposition of diese additional
Another commenter stated that these
requirements would significantly add to
the regulatory burden of permit
applicants and increase the Corps
. -workload. Several commenters stated
that requiring a water quality
management plan w'ould increase die
_ scope of the NWP program beyond the
expertise of Corps regulatory personnel.
A goal of the Clean Water"Act, which
provides the Corps with its authority to
cegulate discharges of dredged or fill
material into waters of the United
States, is to restore and maintain die
chemical, physical, and biological
. integrity of the Nation's waters. We
believe that the requirement for a water
quality management plan to prevent or
reduce adverse effects to water quality
as a result of work auuiorized under
Section 404 of the Clean Water Act is
widiin our statutory audiority. However,
• die terms of the proposed modification
of diis general condition are not
intended to replace existing State or
Tribal Section 401 requirements, if
those programs adequately address
water quality concerns. Instead, the
requirements of die general conditions
provide the Corps the opportunity to
protect or improve- local open water
qua-lity. In states widi strong water
quality programs, district engineers will
defer to State and local requirements
and will not require water quality ,'
management plans as special conditions
of NWP authorizations. If the 401 " ,
agency does not, require adequate
measures to protect downstream water
quality, we have the audiority to require
measures, including die construction of
stormwater management facilities or the
establishment or maintenance of
vegetated buffers adjacent to waters of
die United States, that will minim'ize
adverse effects td downstream water
quality. If die adverse effects to local
water quality resulting, from the
proposed work are minimal without the
need for die implementation of a water
quality management plan.^then such a
plan is not required. This general
condition is not an absolute requirement
because die criterion is minimal
degradation, not no degradation. If a
project proponent does not want to
implement a water quality management
plan, and die plan is necessary to ensure
diat die NWP audiorizes only minimal
adverse effects on die aquatic
environment, then he or she can apply
for an individual permit
The language of die proposed
modification of diis general condidon is
intended to allow flexibility and
minimize die amount of information
necessary to determine compliance widi
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39339
determine if a pnrriculnr project
complies with.this general condition
.ind will not.require extensive analysis
or review. Detailed studies will not be
required. If a water quality management
plan is unnecessary due to the nature of
rhe work and the surrounding area, then
the plan is not required. For example,
the District Engineer may determine'that
a water quality management plan is not .
required for an activity in a watershed
that is not substantially developed. If a
water quality management plan is
required by the District Engineer, for a
particular'NWP authorization, it does •
not increase th'e-Corps sco^pe of analysis.
For example", 'if the permit area includes
'an entire subdivision, the District '. f
• Engineer wilL determine if a water
quality management plan is necessary to
address impacts to water quality
resulting from the-eonstruction and use'
of the subdivision. However, if a Corps
- permit is required only for a small-
portion of die development, such as a •
single road crossing to provide access to
an upland development, the water
quality management plan will not apply
to the entire project site. District
engineers cannot require a water quality '
management plan for a poorly designed
upland development. By limiting our
analysis to the qualitative assessment of
compliance with diis general condition,
die increase to die Corps workload will
be minor and compliance will be easily
assessed by Corps regulatory personnel.
Many commenters recognized the
importance of vegetated buffers and
agreed that they should be required:
One commenter stated that the general
condition should not require the
.establishment of vegetated buffers. •
Anodier commenter stated that this
general condition would needlessly take
private property widiout compensation.
One commenter stated that this
condition would cause unreasonable0
financial burdens on NWP applicants
and that future landowners cannot be
expected to know if areas adjacent to
waters of the United States are upland .
mitigation areas reqtrtred'for fhe NWP
. authorization or the proper width of the
- buffers. One commenter asked if
drainage districts would be allowed to
clear die buffer areas and to place .
excavated material on these areas during
future ditch maintenance activities.
We are proposing to modify the
general condition to provide district
engineers widi the, flexibility to
determine whether or not the
establishment or maintenance of a
vegetated buffer adjacent to open waters
is necessary. The requirement for a
water quality management plan does not
constitute a taking of private property.
ft is merely an NWP condition that will
help ensure ffiat-the authortzecTactivicy
causes only minimal adverse effects to
water quality. This requirement still
allows-the-landowner viable economic
use of his or her property. If the District
Engineer determines that a water quality
management plan is necessary to ensure
that die activities authorized by NWPs
result only in minimal adverse effects
on water quality, and the landowner or
developer does not want to implement
die water quality management plan,
dien he- or she'can request authorization •
through die individual permit process.
NWPs are optional permits, and anyone
who does not want to comply with'-the
terms and limits of die NWPs can
request audiorization dirough eiuner a
regional general permit, if available for
die proposed activity,.or an individual
permit. We disagree that the
requirement for a water quality.
management plan will result in
unnecessary financial burdens on die
regulated public.
Project-specific requirements for
vegetated buffers adjacent to waters of
die United States should be
incorporated into NWP audiorizations
as special conditions, based on site "
conditions. Vegetated buffer
requirements may also be regional
conditions of the NWPs. The vegetated
- buffer requirements will be included in
die NWP authorization issued to die
project proponent, either as special or
regional, conditions. The NWP
audiorization will include a description
of die width and composition of die
vegetated buffer and may contain a plan
of die project site showing die location
and extent of those buffers. These
documents will ensure dial the
permittee knows the location and extent
of those buffers. Since the establishment
and maintenance of vegetated buffers.
adjacent to waters of the United States
can be considered as a form of out-of-
kind compensatory mitigation for
authorized losses of waters of die
^United States, district engineers may .
require die protectio°n of vegetated «
buffers by conservation-easements, de&d
restrictions, or odier forms of legal
protection.
If a drainage district needs to
periodically remove sediments from a
waterway where vegetated buffers were
established as a condition of an NWP
audiorization, and those vegetated
buffers are protected by^a conservation
easement or odier legal means, die
drainage district must notify the District
Engineer of its Intent to remove the
vegetated buffer to conduct the
maintenance activity. The drainage
district may be required to reestablish of
the vegetated buffer upon completion of
the maintenance work.
One commenter recommended o
modifying the general condition to
require vegetated buffers adjacent to all
waters of the United States, not just
open waters, because of the scientific
support for buffers adjacent to wetlands
and-open water as essential for
maintaining aquatic functions. One
commenter requested a definition'of die
term "vegetated.buffer'.' and that die '
Corps specifically state die widdi
required for the buffer zone. Two
commenters suggested changing die
term "vegetated buffer" to "permanendy
vegetated buffer."'Some'commenters
recommended requiring-vegetated
'buffers'to be composed, of native
species. Anodier commen'ter
recommended making this general
condition applicable'to NWPs 19, 25,
33, 34, arid 36.. Qne cSmmenter stated .
that the'concept o'f a wetland buffer is
better suited-for large open space
projects dian it would be for linear .road
projects and recommended eliminating
buffer requirements from road projects
widiin existing right-of-ways. A
commenter requested a definition of die
term "to the maximum extent
practicable" for the vegetated buffer
requirement This commenter also
stated-that the vegetated buffer
requirement is inconsistent with
channel relocation authorized by NWP
40 and die removal of undesirable
species in NWP 27,
The-purpose of die vegetated buffer
requirement in this general condition is
to prevent more dian minimal
degradation of die water .quality of
streams and other open waters. For diat
reason, we have not included a.
requirement for vegetated buffers
adjacent to wedands. This does not
prevent district engineers from requiring
die establishment and maintenance of
vegetated buffers adjacent to wetlands
as conditions of NWP authorizations.
The width and species composition of
the required vegetated-buffer is at die
discretion of the District Engineer. In a
previous section of this Federal Register
notice; we recommend minimum
width's for vegetated buffers, as well as
die plant sizes and species that should
be used. These recommendations are
merely guidance; it is die District
Engineer's decision as to what
constitutes an adequate vegetated buffer
for the purposes of a specific NWP
audiorization. Vegetated buffers should •;'
be as wide as possible. The phrase "to
the maximum extent practicable"
provides district engineers with
flexibility. The vegetated buffer
requirement is not inconsistent widi
NWPs 40 and 2?, because vegetated
buffers can be established bv planting
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Federal Register/Vol. 64. No. 139/Wednesday. July 21, 1999/Notices
•ippropnate species after drainage ditch
or channel relocation activities and the
removal of undesirable plant species,
such as noxious weeds or invasive .
species. We have removed NWP 21 from
the list of NVVPs that may require a
water quality management plan, because
Title V of.che Surface-Mining Control
.ind Reclamation Act already has a
similar requirement*
/1, Endangered Species:- In the July 1.
1998, Federal Register notice; we did
noc propose any changes to this general
condition. In response to this Federal
Register notice, one commenter-
requested diat the Corps define the
phrase "in the vicinity" and another
commenter recommended deleting diis
phrase from the general condition.
The definition of this term is at die
discretion of the District Engineer for a
particular Federally-listed endangered
or threatened species. The area defined
as the "vicinity" varies from species to
species. For example, die "vicinity" of
an endangered bird species will be
different from die' "vicinity" of an
endangered species of orchid. The
Standard Local Operating Procedures
for Endangered Species established,
between most Corps districts and the
FVVS and NMFS will provide more
effective protection of endangered and
threatened species and their critical
habitat, and can provide local
definitions of the term "vicinity."
General Condition 11 contains *
provisions requiring notification for
activities in designated critical habitat.
We are proposing to modify General
Condition 11 to clarify that the
notification Is required for any NWP
activity proposed in designated critical
habitat. We are proposing to add a
provision to General Condition 13,
Notification, to require the prospective
permittee to provide the name(s) of die
Federally-listed endangered qr
threatened species diat may^be..
adversely affected by the proposed
work. • * »
' 12. Historic Properties: In die July 1,
1998, Federal Register notice, die Corps
did not propose any changes to this
general condition. Several commenters
believe that General Condition 12
adequately address die Corps
responsibilities under Section 106 of the
National Historic Preservation Act
(NHPA). One commenter recommended
diat the Corps require diat prospective
permittees submit with die PCN eidier
an inventory of historic properties
prepared by a qualified individual, a
letter from die State Historic
Preservation Officer ,(SHPO) concerning
potential Impacts to historic properties,
«]• crtr"* *hpr ^viHpnr"f* fliat
NHPA have been satisfied. One
commenter requested that die
notification contain a statement"'
concerning potential effects to historic
property. Anodier commenter stated
that General Condition ;12 should
include a requirement that the permittee
notify the District Engineer of die
discovery of any artifacts or deposits
diat may constitute an eligible property
while the authorized work is in progress
and take steps to protect those
potentially eligible properties until die
requirements of NHPA are fulfilled. One
commenter suggested diat if the
permittee avoids adverse effects to
historic properties .by incorporating
diose properti.es into "open space" or
greenbelts on the project site, dien'those
. historic properties must be protected by
deed restrictions, protective covenants,
or ouier legal means as a condition of
the NWP audiorization. Anodier
commenter expressed concern as to how
Tribal coordination is conducted for
potential effects to Tribal cultural or
historic resources. '
We believe that die current wording
of General Condition 12 adequately
addresses compliance of die NWP
program with NHPA. Iri 33 CFR Part
325, Appendix C, the Corps has
established die procedures necessary to
ensure compliance with Section 106 of
die NHPA. This general condition
already requires diat the prospective
permittee notify die District Engineer if
die proposed work may affect historic
properties listed in, or may be eligible
for listing in, die National Register of
Historic Places. The District Engineer
will review die notification and conduct
any necessary coordination widi the
SHPO to ensure compliance widi
NHPA. The prospective permittee
cannot commence work until die
requirements of NHPA have been 4 •
fulfilled.. If die permittee discovers
previously unknown historic properties
during die course of conducting the
autiior^zed work, he or she must stop
work and notify the District Engineer of '•'
the presence of. previously .unknqwn
'historic properties. Work cannot
continue under die NWP until the
requirements of NHPAihave been •
fulfilled.
.If the permittee avoids adverse effects-
to historic properties, we cannot require
die permittee to preserve diose
properties in open space with a
conservation easement or deed
restriction. Tribal cultural resources are
subject to die same requirements as
odier cultural and historic resources.
The original wording of General •
Condition 12 will be retained as
oublished in die December 13. 1996,
We are proposing to add a provision to
General Condition 13, Notification, to
require die prospective permittee to
state, in the PCN, which historic
property may be affected by die
. proposed work or to include a vicinity
map indicating the location of die
historic propert^f
13. Notification: In the July I, 1998, .
Federal Register notice, we proposed to
require notification for all of the new
and modified NWPs, widi various
notification diresholds, but in. general
most of these NWPs had a PCN
threshold of Va acre. We also proposed
to conduct agency coordination for
discharges authorized by proposed
NWPs A, B, C, E, and 40 that result in
die loss of greater than 1 acre'of waters
of the United States. Notifications for
/activities that result In die loss of 1 acre
•of waters of die United States or less
would be subject to Corps-only review.
In diis section, we will address only . ,
those comments relating to die
notification process; comments.
concerning PCN diresholds for specific
NWPs are addressed in die preamble
discussions for each NWP.
Several commenters stated diat one
PGN direshold should be applied to all
of die NWPs. We disagree, because one
of die purposes of die PCN process is to
provide district engineers die
opportunity ;to review specific NWP
activities to ensure diat diey will result
only in minimal adverse effects on die
aquatic environment. There is a wide
range of activities, diat are authorized by
the existing NWPs and the proposed
NWPs. Each of diese activities may
require different PCN diresholds
because diey can have different adverse
effects on die aquatic environment. We
have attempted to make the PCN
diresholds for the proposed NWPs as
consistent as possible. Most of the .
proposed NWPs require submission of a
PCN for losses of greater than 'A acre of
. waters of die United States, but PCN
thresholds for steam impacts vary for
' these NW.PS.'"' . "
One c'ommehter believes diat
notification should not be required for
projects where die Corps accepts
compensatory mitigation plans for less
dian 1 acre of wetland impact, for
activities exempt under Section
404(f)(l) of the Clean^ Water Act, or for
the removal of accumulated sediments
at stream crossings. Another commenter
recommended diat notification should
be required for all NWP activities where
die State has not issued an
unconditional WQC. One commenter
suggested diat all activities impacting
stream beds or riparian gones should
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39341
We disagree with these
recommendations. We require
notification for NWP activities that may
result in more than minimal adverse
effects on the aquatic environment.
Activities that are* exempt under Section
40-1(0(1) of die Clean Water Act do not
require a Section 404 permit and are not
subject to PCN requirements. For the
proposed modification of NWP-3. we are
• proposing to require notification for all
"removal of accumulated sediments in
the vicinity of existing structures (see
the'preamble discussion for NWP .3). If
an unconditional WQC has not been '".
issued for the NWP by the Section 401
agency, the Slate' or Tribe will have*die
opportunity too review each activity and
. deteryru'ne if it complies with State or
Tribal water quality standards. t •
• Notification to the Corps is unnecessary
unless the Division Engineer regionally
conditions the NWP to require
notification. The District Engineer^will' >
review the PCN to determine if the
proposed work complies with the terms
of the NWP and if any compensatory
mitigation is necessary to ensure that
the authorized work results in minimal
adverse effects on the aquatic
environment.
Several commenters addressed the 30-
day PCN time period in paragraph (a) (3)
of General Condkion 13. Two
commenters supported the 30-day PGN
time period for the new NWPs. One
commenter recommended deleting the
30-d.ay time period because the project
proponent should not have to wait 30
days to receive an NWP authorization.
One commenter stated that the 30-day
time period is unjustified and is
contrary to the intent of the NWP
program. One commenter said that PCN
time period should be reduced from 30
days to 15 days. Three commenters
statectthatthe 30.-day PCN time period
is too short to conduct ah adequate
review.of the proposed work. One of '
these commenters recommended a 60-,
day time'period and another commenter
suggested a 4 5-day time period.
-. The PCN time,period provides.. •
fairness to the regulated public by,
requiring the Corps to respond to PCNs
in a timely manner. Due to the higher \
workloads that are expected to result
from the proposed new and modified
NWPs, we are proposing to change
paragraph (a) of General Condition 13
by increasing the PCN review period to
45 days for a complete notification. The
District Engineer will have 30 days from
the PCN receipt date to request
additional Information that is necessary
to make die PCN complete and begin die
PCN review process. If the PCN is
incomplete, the District Engineer can
make only one request for additional °
informadori1(Se'cessary to;rrtakl"the PCN
complete. If the .applicant does not
', supply the requested information, the
District Engineer will not proceed with
the PCN review and the applicant
cannot assume that the project is
authorized by the NWP 45 days later. If
the applicant does not provide all of die
requested information, the District
Engineer may notify die applicant,
, either by letter or telephone, that the' •
.PCN is not complete and diat the PCN
review process'will not begin until all
of die requested information is
furnished to die Corps. Upon receipt of
a complete PCN, the District Engineer
has 45 days to determine if the proposed
work qualifies for authorization under
the NWP or exercise discretionary
audiority to require a standard permit.
If the District Engineer does not respond
to die PCN widiin 45 days of receipt of
a complete application, dien the
proposed activity is authorized by NWP
unless die District Engineer modifies. .'
suspends, or revokes the default NWP
authorization in accordance widi 33
CFR Part 330.5(d) (2). .
Many commenters believe diat die
information requirements for PCNs are
too extensive and confusing. They
requested diat die Corps provide a
checklist to simplify the notification
• process. Three commenters requested
diat die requirement for submission of
a delineation of special aquatic sites for
certain NWPs be deleted from General
Condition 13. One of these commenters
specifically recommended excluding
NWP 12. activities diat are not subject to
an acreage limit from the delineation
requirement. Another commenter stated
that wetland delineations are too costly
to be required for PCNs.
The format of General Condition 13
clearly outlines die informadon
required for die notification process.
Corps districts can, if diey choose to do
so, provide a checklist with dieir permit
applications to help prospective
permittees ensure diat diey have
provided all die required ^information.
The proposed modifications to NWP 12
require die submission of a delineation
r of special aquatic sites. We are
/.proposing to add NWP 7 to die list of
"NWPs dial require submission of
delineations of special aquatic sites widi
die PCN. NWP 7 was added because "
there may be some intake or outfall
maintenance activities diat could
adversely affect submerged aquatic
vegetation beds.
A few commenters-believe diat die
prospective permittee should not be •
required to notify die National Ocean
Service (NO'S) for die construction or
installation of utility lines in navigable
^^atersancHha^hisorovisionshouldbe
removed from General Condition 13. We
concur with this comment and are
proposing to modify NWP 12 to require
the Corps to provide NOS widi a copy
of the PCN and NWP authorization, so
that NOS can chart the utility line to
protect navigation.
We received many comments
concerning interagency coordination of
PCNs. Some commenters stated diat the
Corps should not consider agency
comments for NWP activities. Other
.commenters suggested that agencies
should have the opportunity to
comment on every PCN. One
commenter recommended diat agency
, coordination should be conducted for
all activities authorized by NWPs.
Several commenters pointed out
discrepancies between different
discussions of die agency coordination
process in-the July'l.. 1998. Federal
Register notice. In die preamble
discussion for die proposed
modifications of General Condition 13,
we proposed to conduct agency
coordination for NWPs authorizing
discharges resulting in die loss of
greater dian 1 acre of waters of die
United States. However, in the proposed
revisions General Condition 13. we
specifically stated diat agency
• coordination'would be conducted only
for NWPs A, B, C, E, and 40. where the .
• loss of waters-of die United States is ? "'
greater than 1 acre and for NWPs 12, 21,
29, 33, 37, and 38, regardless of die
acreage loss. Many commenters stated
that the agency coordination period
should be-greater than 5 calendar days
and some of these commenters said diat
the Corps should provide responses to
agency comments. One commenter
recommended diat Tribes implementing
die Section 401 program should be
included in the agency coordination
process. Two commenters requested
that die Corps put die~optional agency
coordination process back into General
Condition 13, to allow the Regional •
Administrator of EPA or die Regional
. Directors of FWS or NMFS to request-
agency coordination for acdvities . '
audiorized by certain NWPs.
We are proposiijg to modify die
agency coordination diresholds in
paragraph (e).to require agency
coordination for any NWP activity
requiring notification to die District
Engineer diat results in die loss of
greater than 1 acre of waters of die -
United States. Because of die proposed
•modification of NWP 40, we have
removed the provision for coordination
with die FWS for NWP 40 activities -
resulting in die loss of greater than '/3
acre of playas, prairie podioles,.and
vernal pools. We have not put the
optional agency notification process
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Federal Register/Vol.
64. No. 139/Wednesday, July 21. 1999/Notices
back Into General Condition 13. We
believe that agency coordination is
unnecessary for NWP activities resulting
in the loss of 1 acre or less of waters of
the United States. Due to the increase
complexity of die NVVPs. we have
modified die time periods for agency
coordination. With the exception of
NWP 37. these agencies will have 10
. calendar days from receipt of the PCN
to notify die District Engineer that diey
Intend to provide substantive, site-
specific comments'within their area of
expertise. If so notified, die District
Engineer will wait an additional 15
calendar days before making a decision
"on the PCN. Therefore, these agencies
have up to 25 days to provide comments
on a PCN. Districts will involve any
Tribes with Section 401 programs in the
agency notification process, if the
proposed activity occurs in an area
subject to a Tribal Section 401 program.
One commenter recommended that
die mitigation requirements in
paragraph (g) should explicidy state dial
compensatory mitigation must fully
offset permanent, temporary, and
secondary losses of functions, values,
and acreage of aquatic resources to
satisfy die "no net loss" goal of die
Section 404 program. One commenter
. asRed which functional assessment
mediod would'be required for
'« mitigation to determine compliance .
widi paragraph (g) of General Condition,
13. A commenter requested' that die
• 'Corps provide Compensatory mitigation •
, guidelines for permit applicants to help
diem better understand and comply
widi compensatory mltigadon
requirements. One commenter suggested
diat die Corps provide.guidance for
appropriate mitigation ratios. Another
commenter asked how die requirements
of paragraph (g) of this general
condition differ from the analysis
required by the Section 404(b)(l) •
Guidelines. One commenter stated that-
vegetated buffers should not be
considered as compensatory mitigation.
This commenter also said diat in lieu
fe*e programs should not be used as
compensatory mitigation.
For diose NWP activities diat require
notification, district engineers will
determine if die proposed compensatory
mitigation adequately offsets losses of
waters of die United States. To
. • determine if die proposed compensatory
mitigation is appropriate, district
engineers will consider what is best for
die local aquatic environment. The
District Engineer Is not required to
utilize a formal assessment mediod. It
would be Inappropriate to issue national
standards for compensatory mitigation,
,.., , i^mff^ ^-_l^
across the country. Nationwide
permittees are not required to fully
offset losses of aquatic resource
functions, values, and acreage resulting
from permanent, temporary, or
secondary impacts. For the NWP
program, compensatory-mitigation is •
necessary only to ensure that the
adverse effects of the autiioriz'ed work
on die aquatic environment are
minimal, individually or cumulatively.
The "no net loss" goal is not a statutory
requirement of the Section 404 program. •
Other Federal wetlands1 programs, such .
as die Wetland Reserve Program, help
increase the quantity of! the Nation's •
wedands and achieve die "no net loss'"
goal. Compensatory mitigation »•
requirements are established by district-
engineers on a case-by-case or district-- ,
wide basis. Therefore, we will not
establish national compensatory
mitigation guidelines. Compensatory
mitigation requirements are addressed
in more detail elsewhere in this Federal
Register notice. Vegetated buffers are an
important type of out-of-kind
compensatory mitigation that helps
protect the quality of the local aquatic
environment, especially water quality.
District engineers will consider
vegetated buffers as part of die
compensatory mitigation required for
activities authorized by Section 404
permits. In paragraph (g) of General. ' •
Condition 13,-we have, specified tiiat in .
lieu fee programs, mitigation banks, and
• otiier consolidated mitigation
approaches are preferred methods of-
providing compensatory mitigation. In
lieu fee programs are an important
means of providing consolidated
compensatory mitigation projects,
especially in areas where mitigation
banks are uncommon. :
For die NWP program, permittees are
only required to avoid ;and minimize
impacts on-site to the maximum exter$
practicable..Off-site alternatives
' analyses cannot be required for .
activities authorized by NWPs because,
die NWPs audiorize only diose activities
widi minimal adverse effects on the
aquatic environment. If die adverse
effects on die aquatic environment are
more tiian minimal, then die District
Engineer will exercise discretionary
authority and require an individual .
permit for the proposed work. In
accordance widi 40 CFR Part 230.7,
each NWP is subjected to a Section .
404(b)(l) Guidelines analysis before it is
issued, but diat analysis is not
conducted for each activity authorized
by the NWP. °
One commenter recommended
modification of General Condition 13 to
nocification for all NVVPs. Another
commenter requested modification of
General Condition 13 to include
requirements for die prospective
permittee to apply for water quality
certification (WQC), in those instances
where WQC has been denied, once^die '
notification process has- been
completed. ." „• • ''
We do not agree tiiar post-construction
notification should be required for ail
activities autiiorized by NWPs. We
believe that General Condition 9, Water •
Quality.^dequately addresses die WQC
requirements for die NWPs.
14. Compliance Certification: We did
not propose1 any changes to this general
condition, but one commenter
. recommended diat tills general
condition specify that die Corps will
verify the certification by a site' visit
widiin 90 days of receipt of the
certification from the permittee.
We disagree with this
recommendation and will not
incorporate it into this general
condition. Corps districts will review
compliance certifications at tiieir
discretion.
15. Use of Multiple Nationwide
Permits: Altiiough we did not propose
any changes to this general condition,
we received many general comments
opposing die use of more tiian one NWP
. to authorize a single and complete
project. We also, received comments
opposing die provisions of diis general.
condition. One commenter •
recommended a prohibition agairistthe
use of more tiian one NWP to audiorize
a single and complete project diat
results in above-grade wetland fills..
Anodier commenter stated that die use
of multiple NWPs for a project should
be unrestricted because of die low
acreage limits of the NWPs and die
unlikely probability diat projects
authorized by more dian one NWP
would result in significant adverse
effects on die aquatic environment.
We are proposing to mpdify General
Condition 15 to prohibit the use of more
dian one NWP to authorize a single and
complete "project, except when die
acreage loss of waters of the United
States is less dian die highest specified
acreage limit for the NWPs used to
audiorize die activity. For example,
NWP 13 may be used widi NWP 39 to
audiorize bank stabilization in' •
unvegetated tidal waters at the project
. site for die construction of a 100-acre
residential subdivision diat will result
in die filling of non-tidal wedands. In
diis case, die acreage loss of waters of
the United States cannot exceed the
indexed acreage limit under NWP 39.
Since die project area is 100 acres, die
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39343
particular project is 2.25 acres, and
includes the subdivision, attendant
tentures. and bank stabilization.
We are also proposing to modify the
ritle of this general condition to more
accurately describe its purpose. The
previous title, "Multiple Use of
Nationwide Permits" implied that the
general condition addresses the use of.
• an NVVP more than once for a-single and
complete project. By changing the-title
to "Use of Multiple Nationwide
Permits," we. believe that the title rrror.e
accurately reflects its purpose, which is
controlling the use of more than one •
NWP to authorize a single and complete
project. .' ' ••
17. Shellfish Beds; We did not '
propose any changes to this general
condition, except to change it from a
"Section 404 Only" condition to a
general condition and include activities
in Section" 10 waters, as discussed ..
.above. During our review o£ the . •
comments received in response to thex-
July l; 1998, and October 14, 1998,
Federal Register notices, we determined
that this general condition requires
clarification_to ensure that the NWPs do
not authorize activities that may result
in more than minimal adverse effects-on •
shellfish. In the text ofthe'general
cphdition we are proposing to change'
the word "production" to "populations"
because-the word "production" is too
Hmiting and the condition should apply
to all areas-of concentrated shellfish .
populations, not just where shellfish are
harvested''commercially. This general. .
Condition was previously entitled .1 no-
"Shellfish Production." We are v
proposing to modify the title of this
general condition to "Shellfish Beds" to
reflect the proposed change in the
general condition.
18. Suitable Materials: We did not
propose any changes to this general
. condition, except to include activities in
Section 10 waters of the United States,
as discussed above. One commenter '.
requested that the general condition
prohibit the use of asphalt, tires, and
" construction and demolition debris. ^
Another commenter supported the .
current wording of the general
condition, provided it does not
authorize the use of fill that contains
deleterious materials, such as trash. One-
.commenter recommended modifying
this general condition t'o state that
materials used in construction must, not
be cumulatively toxic, even diough they
may not be toxic in the amounts
discharged for die-project. *
This NWP condition already contains
examples of material that are considered
unsuitable, such as trash, debris, car
bodies, and asphalt. It is impractical to
unsuitable ma'ter.ials: District'engineers
will determine on a case-by-case basis
which materials are unsuitable. Division
engineers can regionally condition the
NWPs to prohibit the use of certain
materials, if those materials are
commonly used in a particular
geographic region and are considered
toxic. We do not believe that it is
necessary to specify that discharged °
materials must not be "cumulatively
toxic, because thejdischargeof toxic , '•'
pollutants is addressed under Section '
307 of the-Clean Water Act. We are
• proposing to retain this general
condition as published in the July 1,
1998, Federal Register notice.
19. Mitigation: In the July .1, 1998,
Federal Registee notice, we proposed to
modify this former Section 404 Only
condition by deleting the words "* * *
unless the District Engineer approves a
compensation plan that the District
Engineer determines is more beneficial
to 'the environment than on-site • .
minimization and avpidance measures."
We also proposed to modify this general
condition to require restoration,
creation, enhancement, or preservation
of aquatic resources to offset losses of
functions and values of waters of the
United States due to authorized impacts
and to include the establishment of
vegetated buffers as part of a
compensatory mitigation plan.
. A few commenters stated that
mitigation°is defined top narrowly in the
general condition, and should include
avoidance and minimization. Some
commenters stated that compensatory
mitigation should not be required for
activities authorized by NWPs because
the adverse effects of those activities on
the aquatic environment can only be
minimal. Other commenters stated that
compensatory mitigation shou!4 be
required for all NWP activities that ,
require a PCN. Some commenters said
that compensatory mitigation should be
required for all impacts to the'aquatic-. '
environment. A few commenters stated
that compensatory mitigation should
not be used to "buy dpwn" losses of
waters of the United States authorized,,
by NWPs to ensure that the adverse
effects- on the aquatic environment are
minimal.
The text of General Condition 19
includes all three steps of the mitigation
process (i.e., avoidance, minimization,
and compensation). Permittees are
required to avoid and minimize impacts
tot the aquatic environment on-site to the
maximum extent practicable. The
consideration of off-site alternatives
cannot be required for activities
authorized by NWPs. For NWP activities
that require notification to the District
be required to ensure that the net
adverse effects on the aquatic
environment are minimal, individually
or cumulatively. However, if the adverse
effects on the aquatic environment are
minimal, without compensatory •
mitigation, the District Engineer may
determine that compensatory mitigation
is unnecessary and authorize the
activity with the NWP. The us,e of ,
compensatory mitigation to'reduce the
adverse effects of'die autherized work to
the minimal level is an essential' *
component of the NWP program,--and "
included in the NWP regulations at 33
CFR Part 330.1 (e)(3).'
One commenter stated that the NVVP
program has become a way to avoid an
alternatives analysis, but another
commenter views the NWPs as similar
to the individual permit process because
it requires an on-site alternatives
analysis. One commenter said that the
avoidance requirement of this general
condition is meaningless because the
resource agencies do not have enough
time to review the applicant's avoidance •
anajysis in the PCN. One commenter
recommended removing the avoidance
requirement from this general condition
because there are currently no standards
for determining if the. requirement has •
been met. • '
General Condition 19 requires the
consideration of on-si£e alternatives, •
including .changes to die-proposed work
to avoid and minimize adverse effects to
waters of the United States. District •'
engineers will review the PCN to
determine if additional avoidance and
minimization is practicable and
necessary. If the proposed work meets
the terms and conditions of the NWP
and results in minimal adverse effects
on the aquatic environment (with or
without any compensatory mitigation
required by the District Engineer) it is
not necessary to require additional
avoidance and minimization.
Two commenters believe that the '
requirement for restoration, creation, j
enhancement, or preservation of^aquatic
. resources to offset authorized impacts to-
ensure that the adverse effects of the
work are minimal is a naajor change tt>
the NWP program and does not
accurately reflect the concept of using
compensatory mitigation to ensure that
the adverse effects on the aquatic
environment caused by activities
authorized by NWPs are 'minimal.
'Another commenter stated that this ' •
requirement is problematic because it
requires compensatory mitigation for
any activity that requires a PCN even if
die adverse effects of die activity on the
aquatic environment are minimal. This
commenter recommended changing this
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Federal Register/Vol. 64, No. 139/Wednesday, July 21, 1999/Notices
•• • * of ocher aquatic resources only
as necessary co offset authorized
impacts to the extent that adverse
environmental effects to the aquatic
environment otherwise would be
minimal." Two commenters objected to
"he Inclusion of preservation as a form
of compensatory mitigation.
We believe nhat diis part of the
general condition accurately reflects 33
CFR Part 330.1(e}(3). which is the
section of die NVVP regulations that
allows die District Engineer to require
compensatory mitigation to- offset losses
of waters of the United States
audiorized by NWPs. to ensure°diat die
adverse effects oh the aquatic
environment are minimal. The phrase
"at least to the extent that adverse
environmental effects to die aquatic
environment are minimal" provides
district engineers with the flexibility to
determine that compensatory mitigation
is unnecessary if die authorized adverse
effects on die aquatic environment are
already minimal. If no compensatory
mitigation Is necessary to reduce die
adverse effects on the aquatic
environment to die minimal level, dien
die District Engineer does not need to
require compensatory mitigation.
• Preservation of aquatic resources is an
important type of compensatory
mitigation, because it can be used to
Augment the restoration, creation, and
enhancement of aquatic habitats.
Pres'ervation'can also be used to protect'
rare or.high-value aquatic resources.
Several commenters requested that
die Corps not delete die language from
die original version of Section 404 Only
condition 4 published in die December
13, 1996. issue of die Federal Register.
This language allowed die District
Engineer to determine diat off-site
compensatory mitigation is more
beneficial to die aquatic environment,
b'ecause of the flexibility allowed by this
wording. One cofnmenter objected to
die use of die term '.'aquatic %
^environment" in die general condition
an,d stated thatTthe 1990 Memorandum
of Agreement (MOA) between die Corps
and EPA on mitigation only refers to
wedands. Two commenters
recommended diat die Corps emphasize
diat compensatory mitigation may be
required for impacts to odier aquadc
resources, not Just wetlands. Other
commenters stated that die Corps needs
to provide guidelines for replacement- ^
ratios, funcdonal assessment mediods, '
and monitoring requirements.
The proposed changes to diis general
. condition do not prohibit die District
Engineer from considering and
aoorovine off-site compensatory
environment. Off-site and out-of-kind
compensatory mitigatioh can be used to
offset losses cf waters of the United
States, if such compensation is
beneficial to die aquatic environment.
Mitigation banks, in lieu fee programs,
'and other consolidated Imitigation
approaches are also important sources
pf compensatory mitigation. The 1990
mitigation MOA applie? only to the
evaluation of standard Corps permits;
not general permits such as die NWPs.
Widi die proposed new and modified
NWPs, we are placing more emphasis
on other types of aquatic resources, such
as streams. Vegetated buffers adjacent to
open or flowing waters! are an excellent
form of compensatory mitigation to
offset adverse effects on the aquatic
environment caused by the activities
audiorized by die NWPs. Restoration of
degraded streams can be used as
compensatory mitigation for stream .
impacts. It is important to note diat
compensatory mitigation is not
necessary for all activities audiorized by
NWPs. The District Engineer will
determine, on a case-by-case basis, if
compensatory mitigation is necessary to
ensure diat die adverse effects on die
aquatic environment are minimal for
activities audiorized by NWPs. We
disagree diat die NWPs should contain
guidance for replacement ratios,
. functional assessment mediods, and
monitoring requirements for
compensatory mitigation. District
* engineers will decide the . •
appropriateness of compensatory
mitigation on a case-by-case basis, using
any replacement ratios, functional
assessment mediods, or monitoring
requirements they believe are
appropriate..
Several commenters addressed the
use of vegetated buffers as
compensatory mitigation. Some •
commenters stated diat die Corps lacks
. theolegal authority to require vegetated
buffers, particularly upland buffers, and
recommended diat die Corps delete die
reference to vegetated buffers from the
general condition. A commenter
objected to use of vegetated buffers as
compensatory mitigation for impacts to
waters of die United States, particularly
' as a substitute for die restoration and
creation of aquatic habitats. Another
commenter recommended using upland
vegetated buffers as compensatory
mitigation only after die permittee has
conducted a one-to-one replacement of
aquatic habitats. One commenter
recommended modifying the general
condition to require planting die
vegetated buffer with native vegetation.
all open waters. Two commenters
recommended including specific width
requirements for vegetated buffers in die
general condition.
Our legal authority to require
vegetated buffers adjacent to waters of
die United States is discussed in a
previous section of this Federal Register
notice. Vegetated buffers adjacent to
open waters or streams can provide
more benefits to the local aquatic
environment than wetland creation
efforts. District engineers will determine
how much the vegetated buffer will
count towards any compensatory
mitigation requirements. We are
proposing to add text to this general
condition stating diat die veget \eed
buffer should consist of nadve species.
However, if the vegetated buffer is
already inhabited by trees and shrubs, it
should be maintained, even if some of
the plant species are not native to the
region. If the vegetated buffer is
inhabited by woody non-native species
diat do not provide habitat for locally
important aquatic species, district
engineers can condition die NWP
authorization to require die removal of
diose non-native species and die
planting of beneficial native species.
Since two general conditions address
mitigation requirements for the NWPs,
we are proposing to add a sentence
General Condition 19, referring to the
j additional, information concerning
mitigation requirements- in paragraph (g) •
of General Condition 13; We are also1
proposing to add a similar sentence to ;
paragraph (g) of General Condition 13,
referring to die mitigation requirements •
of General Condition 19.
''20. Spawning Areas: One commenter
suggested diat we remove die word
"important" from General Condition 20
to prohibit activities in any fish
spawning area. Two odier commenters
objected to die addition of diis word to
the general condition because it does
not define what an '' important''.
spawning area is and would result in
subjective determinations by Corps -
personnel. Anodier commenter
recommended that die word
"structures" be added to die examples
of activities diat can physically destroy
a spawning area.
We added die word "important1 to
diis general condition, to limit die "'
prohibition to spawning areas "used by
species that are harvested commercially
for human consumption. Spawning
areas used exclusively by other aquatic
species are not subject to diis general
condition. We are proposing to retain
die word "important" in diis general
condition. Division engineers can add
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Federal Register. Vol. 64. No. 139./Wednesday. July 21. 1999/Notices
39345
nofification for NWP activities) in
known locations of important spawning
habitat. We do not believe it is
necessary to include the placement of
structures in this general condition as
,in example of an activity that physically
destroys a spawning area because the
general condition already clearly states
rhat authorized activities, including
structures in navigable waters, cannot
result in the physical destruction of
important spawning areas.
21.-Management of Water Flows: In'
the July 1, 1998, Federal Register
notice, we. pcpposed. to "modify th'is
former Section 404 Only general
"condition and change the title of the-
. condition from "Obstruction of High
Flows'•>' to "Management of High
' .Hows." We proposed to modify this
NWP to require permittees to design
their projects to maintain, to the •
maximum extent practicable, '
preconstruction downstream flow
conditions and'reduce'fmpacts such as
flooding or draining, unless the primary
purpose 9f the project is to impound
water nr reestablish drainage.
Several commenters fully supported
the proposed modification to this
general condition. Another commenter
stated that the general condition should
also include water quality control. A
number of commenters requested
clarification of the proposed general '
condition. One-commenter stated that
the condition should be modified to
include functionally related • '
components, such as outfalls and
developed flows, with the project.
Another commenter stated that the
Condition should be clarified to allow
impoundment of water for beneficial
use if that is the primary purpose of the
project. Many commenters requested
clarification of terms used in the
preamble discussion relating to this
general condition, including "as close as
feasible" and "more than minimally
flooded or-dewatered." Other
commenters asked if the Corps is .
relating the preconstruction flows to
particular events, such as 50- or 100-
year storm flows, or all flows. A ' .
commenter requested clarification as to
whether the general condition requires
on-site detention, if watershed detention
is a better solutfon. "' •
' The NWPs are already conditioned to
address water quality concerns resulting
from activities authorized by NWPs.
General Condition 9 requires that the
permittee obtain a water quality
certification and, for certain NWP
activities, develop and implement a
water quality management plan to
prevent more than minimal degradation
of downstream water quality. We do not
. ... .
'modification to include outfalls and
developed flows with the project
because this condition applies to
general flow patterns of waters of the
United States in the vicinity of the
project, not to any specific part of the
project. The proposed.modification of
this condition already contains language
allowing the impoundment of water, if
that is.the primary purpose of die
authorized activity'. The phrase "as
close as feasible" as used in the.
preamble is synonymous with the
phrase "to the maximum extent-
practicable," which is used throughout
the text of the general condition.The
phrase""more than.minimally flooded or
dewatered" used in the preamble relates
to the requirement that the NWPs
authorize only those activities with
minimal adverse effects on the "aquatic-
environment. District engineers will
determine if any changes to surface
water flows resulting from the
authorized work-excleds the
requirements of this general condition.
This general condition applies to the
general flow patterns of surface waters
over the course of a year, riot to any
specific storm.event. For examptera^"" .
project authorized by NWP may'not
cause more than minimal increases in
downstream water flows that result in
downcuttihg of the stream bed and
substantial increases in stream bed and
bank erosion. This general condition
does not require any particular method
to achieve compliance with the
requirements of the general condition.
We are proposing to modify the text of
the general condition to require the
permittee to maintain, to the maximum
extent practicable, surface water flow
conditions from the site that are similar
to preconstruction flow conditions. The
text in the July 1, 1998, Federal Register
notice required'the establishment of
flow rates similar to preconstruction
conditions.
Some commenters stated that the
management of water flows, is the
responsibility of State or local agencies'
that regulate stormwater'management. A
number of commerttersiasked if the •.
Corps or the permittee will be'
responsible for ensuring compliance
with this condition, and what will be
required in terms of design and
documentation. A couple of
commenters asked what type of
hydraulic analysis will be required to
.verify compliance with this condition.
Some1 cbmmenters believe that the
• Corps should develop consistent .
standards, guidance, and training '
programs for the practicable measures
that should be incorporated into project
plans to comply with this general
that the Corps modify the language of
the condition to state that project
modifications that decrease water
supply yield or substantially increase
the cost of die water supply yield are
not considered practicable for the
purposes of the general condition. A
commenter recommended modifying
the condition to state that practicability
, determinations will include
consideration of costs, benefits, and
-technical feasibility. . .
•The'.purpose of the proposed" . .
modification o£ this general condition is
to improve protection of the aquatic
"environment and private property by
preventing substantial changes to local
surface water flow patterns, as a result
of activities authorized by NWPs. If . .
State or local agencies have adequate
requirements, to manage water flows that
accomplish the goals of this general
condition, district engineers will
normally defer this issue to those
agencies. To determine compliance with
General Condition 21; district engineers
will use'discretion, based on general
knowledge of local water flow'patterns;
andjjtill not require a detailed
hydrologic analysis or engineering .
study. The language of this-general
condition provides district engineers
with flexibility to determine if a
particular project complies with the
general condition. This general
condition is riot an absolute requirement
for maintaining identical
preconstruction and postconstruction
water flow patterns. In addition, it does
not require that the project be designed
or constructed to have no effect on
water flows. The general condition
requires that postconstruction water
flow patterns are not more than
minimally different from
preconstruction water flow patterns. -
One commenter stated that the . •
. general condition should be modified to
allow additional runoff where it can be
demonstrated that the Increased runoff
can b'e collected by the receiving-
^aterbody and the permittee has
received permission from the local flood
control agency to add this runoff to the
waterbody. For the maintenance of
ditches-and channelized streams, . •
another commenter recommended
modifying this general condition to
specify that the flow patterns in the
restored ditch will be used to define the
preconstfuctiori flow pattern. This
commenter said that the deteriorated
ditch should not be used"' to establish the
preconstrtiction flow pattern. A
commenter requested modification of
this general condition so that it. vyo-ald
apply only to off-site areas, not the
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39346
Federal Register'Vol. 64. No. 1397 Wednesday, July 21, 1999/Notices
If the primary purpose of the
proposed work does not include
impounding water, and the activity will
increase flooding, then the proposed
work does not comply with General
Condition 21. The project proponent
can apply for authorization through the
individual permit process or request a
regional general permit authorization, if
applicable. The maintenance of ditches,
including die maintenance of
channelized streams used as drainage
ditches, may be exempt under Section
404(0 and not require a Section 404 ' •
permit. General Condition 21 does-not
apply to activities'exempt from'Section
404 permit requirements. 'Modifying diis
general condition to allow increases in
downstream flows on-site, but
prohibiting'increases in downstream
flows- off-site, is impractical. Unless the
project site is extremely large, it is likely
that any increases in downstream water
flo\vs on the project site will extend to
off-site areas.
A number of commenters objected to
the proposed modifications to this
condition. Some commenters stated that
the Corps failed to demonstrate the need
for the proposed modification. A few
commenters said diat the Corps does not
have die authority to require this
* condition under the Clean Water Act.
Several commenters stated'that the
Corps does not possess die expertise to
enforce this condition and should not :
regulate activities widiin floodplains. A
commemer believes that (he proposed .
changes to this general condition are
contrary to die Corps goal of
streamlining die regulatory process. A
number of commenters stated that die
proposed changes to this general
condition would make most projects
Ineligible for NWP authorization.
Some activities in waters of die
United States result in adverse effects
on local surface water flow patterns,
Including increased flooding upstrearn
and downstream of the project site: The
purpose of the proposed modifications '•
to General Condition 21 is to require .
permittees to design and construct their
projects to maintain preconstruction
downstream flow conditions, unless the "
primary purpose of die fill is to ** .
impound water. Large changes to
surface water flow patterns cart result in
substantial adverse effects on die
aquatic environment, by destroying
aquatic habitat and impairing water.
quality. Higher rates of surface runoff
caused by increases in the amount of
Impervious surface in a watershed can
create substantial changes in stream
morphology, affecting the quality of
aquatic habitat and species inhabiting
suspended sediment In the water
column. For example, the construction
of a commercial development, including
buildings and parking lots, near a
stream can increase storm flows to local
streams, which can result in
.downcutting' of die stream bed and
increases in bank erosion, destroying -
aquatic habitat. The proposed
modification of this general condition is
intended to address these types of
changes to surface water flows.
The Clean Water Act provides the
Corps "witii the audiority to require this
condition, because it is related to the
activities regulated under Section 404 of
the Clean'Water'Act. Corps personnel
will qualitatively .evaluate proposed
• NWP activities to determine if they
comply with diis condition. This
condition does not expand the Corps
regulatory authority to include activities .
in floodplains; it merely addresses
adverse effects to surface water flows
diat may result from activities in waters
of die United States. The proposed
modification of General Condition 21 is
not contrary to the Corps goal of
streamlining the regulatory process,
because it requires only a qualitative
analysis, not a detailed hydraulic or
engineering study, to determine
compliance. The phrase "to the
maximum extent practicable" is used '
throughout die general condition, and
provides district engineers with the
flexibility to determine if a particular
project complies widi this condition.
Since this general condition is not an
absolute requirement to maintain
preconstruction flows, we do not agree
. uiat the requirements of this general
condition will result in a substantial
number of projects becoming ineligible
for NWP authorization. We are
proposing to modify the last sentence of
this general condition to clarify its
requirements.
. 23. Waterfowl Breeding Areas:-
Aldioughwe did not propose any
changes to diis general condition in .the
July 1. 1998, Federal Register notice,
except to consolidate it with the other
general conditions, one commenter
recommended changing die title of this
condition to "Migratory Bird Breeding
Areas" and adding die phrase "odier
migratory birds" after the phrase
"migratory waterfowl."
We do not agree with this
recommendation, because the inclusion
of odier migratory birds is outside die
scope of the Corps regulatory authority.
A goal of die Corps regulatory program
is to maintain the quality of die aquatic
environment. Including other migratory
birds in diis general condition would
many migratory bird species are not
dependent on wetlands and odier
waters of the United States. We are not
proposing any changes to diis general
condition.
Proposed General Condition 16,
Subdivisions: In die July 1, 1998,
Federal Register notice, we proposed a
new general condition, General
Condition 16, entitled "Subdivisions" to
ensure that only single and complete
projects are authorized by die proposed
NWPs for residential, commercial, and
institutional activities and master
planned development activities (I.e..
proposed NWPs A an i B). A few
comments were received in response to
diis proposed general condition. A
commenter remarked diat die
subdivision date is, arbitrary and could
allow the NWPs affected by the
proposed general condition to authorize
activities with more dian minimal
adverse effects on the aquatic -°
environment. Anodier commenter stated
that subdivisions created after October
5, 1984, should be allowed to use
proposed NWP A only once. One
commenter recommended dial single
and complete projects should be
determined by the subdivision date, not
any phasing schedule for the
development. Another commenter.-
stated that the acreage limits for
subdivisions shtuld be consis.tent with
regional'EPA requirements.
Since die proposed NWP for master
planned developments was withdrawn '
in the October 14, 1998, Federal •
Register notice, we are withdrawing the
proposed general condition and placing
a modified version of the text in
proposed NWP 39, since NWP 39 is the
only NWP for which this subdivision
provision is currendy applicable. NWP
29 has its own subdivision provision.
The October. 4, 19S4, subdivision date is
not arbitrary, but Uiis date was chosen
to be consistent with die subdivision
provision for NWP 26. The reasons for •
adding a subdivision provision to'NWP
26 were addressed in the November 22,
1991, Federal Register notice for die .
reissuance of NWP 26 (see 56 FR
59114). The October 5. 1984, date was
selected because it was die date die 1-
acre and 10-acre limits were added to
NWP 26. A subdivision date was
incorporated into NWP 26 to address
die issue of single and complete
projects, r.ecognizing that most
subdivisions are actually individual
projects widi interrelated components.
To provide fairness to die regulated
public, we will utilize the same
subdivision date for NWP 39.
25. Designated Critical Resource
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Federal Register/Vol. 64. N'o. 139/Wednesday, July 21, 1999/Notices
39347
1998. Federal Register notice
concerning the use of NWPs in
designated critical resource waters, we
are proposing a new NWP general
condition that addresses this issue. The
proposed general condition prohibits
rhe'useof NWPs 7, 12/14. 16. 17,21.
29. 31, 35. 39. 40. 42, 43. and 44 for any
activity in, the following critical
resource waters, including wetlands
adjacent to these waters. Activities •
authorized by NWPs 3, 8, 10, 13. 15, I8f
tt.9. 22, 23, 25, 27, 28, 30, 33, 34, 36, 37,
and 38 cari be conducted in these ,
designated critical resources, including
adjacent wetlands, provided the
permittee .notifies the District Engineer
.in accordance with General Condition
13 and the proposed wori :1 result in
minimal adverse effects or. ->ie aquatic
environment. For the purposes of
proposed General Condition 25, no . -
additional notification is required for '.
activities in designated critical resource
waters and adjacent ^wetlands that are
authorized by NWPs' not listed in the
text of this general condition, although
notification may be required by other
' conditions.
For the purposes of the proposed
general condition, designated critical
resource waters include: NOAA-
designated marine sanctuaries; National
Estuarine Research Reserves, National .
Wild and Scenic Rivers, critical habitat
for Federally-listed threatened or
endangered species, coral reefs, State
natural heritage sites, or outstanding
national resource waters officially
designated by the state where those
waters are located. Outstanding national
resource waters and other waters having
particular environmental or ecological
significance must be officially
designated through an official State
process (e.g., adopted through ' -
regulatory or statutory'processes.
approved through State legislation, or
designated by die Governor). In these
circumstances where a waterbody has
been designated by the State, the
District Engineer will publish a notice
•• advising die public that such waters
will be added to die list of designated
critical resource watecs. The District
Engineer may designate additional
critical resource waters after notice and
opportunity for public comment.
Paragraph (a) of General Condition 25
refers to General Condition 7 for
activities in, National Wild and Scenic
Rivers. General Condition 25 also states
that the NWPs cannot aathorize
discharges in'designated critical habitat
for Federally-listed threatened or
endangered species unless the activity
complies •with General Condition 11 and
the U.S.- Fish and Wildlife Service or the
.''. -£»y • .• • ^ „«*'.
concurred in a determination of
compliance with that general condition.
The.comments'received in response to
the October 14. 1998, Federal Register
notice related to this new general
condition are discussed in detail in a
previous section of diis Federal Register
notice.
26. Impaired Waters: As a result of the
comments received in response to the
October 14. 1998, Federal Register
notice concerning the use of NWPs in
impaired waters, we have proposed a
new NWP general condition that
restricts the use of NWPs in waterbodies
that have been designated as' impaired
dirough the Clean Water Act Section
303(d) process'. This proposed general
condition also applies to wetlands
adjacent to those impaired waterbodies:
For die purposes of this general '
condition,, "impaired.waters" are •
defined as those waters of the United
States that have been identified by.
States or Tribes through the Clean Water
Act Section 303 (d) process as impaired
due to nutrients, organic enrichment
resulting in low dissolved oxygen
concentration in_the water column,
sedimentation and siltation, habitat
alteration, suspended solids, flow
alteration, turbidity, or the loss of
wetlands. ' - ". \
General Condition 26 is based, on a'
presumption that discharges into an
impaired waterbody,-or wetlands
adjacent .to diat impaired waterbody,
will result in further impairment of die
waterbody. NWPs cannot be used to
autiiorize discharges of dredged or fill
material that result in die loss of greater
than 1 acre of impaired waters of die
United States and wetlands adjacent to
those impaired waters. For activities
authorized by NWP 3, diis prohibition
.does not apply, provided the
prospective permittee'notifies die
District Engineer in accordance widi
General Condition 13 and demonstrates
that die work will not result in further
„ impairment of die waterbody. For
discharges of .dredged or fill material
resulting in the loss of 1 acre or less of
impaired waters of the United States,
including adjacent wedands, this
presumption can be refuted by clear
evidence that the proposed project will
not further impair the waterbody. To
refute this presumption anc] qualify for
NWP authorization, die prospective .
permittee must submit a notification'to
the District'Engineer in accordance with
General Condition 13. The notification
must contain a statement explaining
how the proposed work will not result
in furdier impairment of the waterBody.
Any compensatory mitigation required
to offset the losses of impaired waters of
wetlands, and ensure that the work
results in minimal adverse effects en .the
aquatic environment should be should
be designed to contribute to the
reduction of sources of pollution
contributing to the impairment. For
example, die establishment and
maintenance of a vegetated buffer
adjacent to a stream impaired due to
nutrients will reduce nutrient inputs to
that stream (thefunctions and values of
.vegetated buffers are discussed in a
previous section of this Federal Re'gkter'"
notice). That vegetated buffer would be
considered as compensatory mitigation .
for a loss of wetlands adjacent to that'
impaired stream:
If die proposed discharge will result . \
in the loss of greater than 1A acre of
impaired waters and adjacent-wetlands,
then the District Engineer will • >
coordinate "with the State 401 agency in
accordance' widi.'the procedures in
paragraph (e) of General Condition 13.
The District .Engineer will consider any •
comments provided by the 401 agency
to determine if thepropose^ work,
excluding mitigation, will result in '
furdie.r impairment of the°waterbody.
The comments received in response to
thejpctober 14, 1998. Federal Register
notice are "discussed in detail in an .. « '•
earlier section of this Federal Register' -
notice.' • • • '• . ' *
•27. Fills Within the 100-year ' "
Floodplain: In respons'e to the
comments received in response to the
October 14, 1998. Federal Register
notice, concernin'g die use of NWPs to
audiorize permanent, above-grade fills
in waters of the United States within
100-year floodplains, we have proposed
NWP General Condition 27. The
comments received in response to the
100-year floodplain restriction proposed
in the October 14, 199.8, Federal
Register notice are discussed in detail in
a previous section of this Federal
Register notice. -
General Condition 27 is .based, on a ..
...presumption that certain NWP activities •
"resulting in permanent, above-grade fills -
in. waters of the Uhite'd States within
100-year floodplains will cause more
dian. minimal adverse effects on surface
hydrology and the functions and values
of 10.0-year floodplains. General
' Condition 27 prohibits the use of NWPs
21, 29, 39, 40/42, 43, and 44. to
audiorize permanent, above-grade fills
in waters of the United States within
100-year floodplains. For'NWPs 12 and--
14, this presumption can be refuted if
"the prospective permittee clearly
demonstrates to the District Engineer
diat die proposed work and associated
mitigation, not decrease the flood-
holding capacity of the waterfaody and
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work will not result in more than
minimal adverse effects on hydrology,
flo.v regimes, or volumes of water
associated with die 100-year floodplain.
This demonstration must include proof
that the Federal Emergency
Management Agency (FEMA) or a state
or local flood control audiority dirough
a licensed professional engineer, has
approved the proposed project and
provided a statement that the activity
will not increase flooding or result in
more than minimal adverse effects to
floodplain hydrology or flow regimes^
The other NWPs are'not subject to the
requirements of General Condition 27.
To Implement General Condition 27.
FEMA's Flood Insurance Rate Maps
(FIRMs) will be used to Identify 100-
year floodplalns. provided those maps
reflect die current extent of 100-year
floodplains. If diere are no FIRMs
published for the project area, or if the .
latest FIRM does not represent the
current 100-year floodplain. information
from the appropriate local floodplain
authority will be used tcrdetermine die
boundar.les of die 100-year floodplain.
Projects located in a 100-year floodplain
at the point in the watershed that has a
drainage area of less dian 1 square mile
are not subject to General Condition 27.
General Condition 27 prohibits the
use of NWPs 21. 29.39. 42. 43. and 44
to authorize permanent, above-grade
fills iri waters of die United'States
within 100-year floodplains. For
activities audiorized by Uiese NWPs, die
prospective, permittee must notify the
District Engineer in accordance with
General Condition 13. The notification
must Include documentation that the
proposed work will not be located in die
100-year floodplain or will not result in
permanent, above-grade fills in waters
of die United States within die 100-year
floodplain. Activities audiorized by
NWPs 21, 29, 39. 42. 43, and 44 that
occur wldiin.l 00-year floodplains but
do not result in permanent, above-grade
, fills in waters of die United-States
wldiin die 100-year flotodplain are not
subject to General Condition 2.7. The
term "permanent above-grade "fill" is.
defined in die "Definitions" section of
the NWPs. The District Engineer will
make die final determination as to
whether a' project is actually located in
die 100-year floodplain or whedier die
project results in permanent, above-
grade fills iri waters of die United" States.
General Condition 27 does not
prohibit the use of NWPs 12 and 14 to '
audiorize discharges Into waters of die
United States resulting in permanent,
above-grade wedand fills in waters of
die United States widiin 100-year
floodplains, provided die prospective
permittee clearly demonstrates to die
District Engineer that the activity will
not decrease flood-holding capacity and
will not result in more than minimal
modifications of hydrology, flow
regime, or volume of waters associated
with the 100-year floodplain. The
prospective permittee must notify the
District Engineer in accordance with '
General Condition 13 if the proposed
work will result in permanent, above-
grade wedand fills in waters of die
United States widiin the 100-year
floodplains. The notification-must- •
include documentation :that clearly
demonstrates that die project will not
increase flooding or result in more than
minimal changes to floodplain.
hydrology or flow regimes. This '
documentation must include proof diat
FEMA, or a state or local flood control
audiority dirough-a licensed'
professional engineer, has approved die
proposed project and provided a
statement that die project does not
increase flooding or cause more than
minimal alterations to floodplain
hydrology or flow regimes. Activities
authorized by NWPs 12 and 14 that
occur widiin 100-year floodplains but
do not result in permanent.'above-grade
fills in waters of die United States
within die 100-yeac floodplain are not .
subject to General Condition 27..
I
V. Comments and Responses on
Nationwide Permit Definitions
General
In die July 1, 1998, Federal Register
notice, we proposed to add a definition
section to die NWPs to promote
consistency in die implementation of
die NWPs. We requested comments on
die definitions presented in the Federal
Register notice. Approximately 45
commenters addressed the proposed
definitions.
One commenter stated that the Corps
has replaced a simple measurement of 5
cubic feet per second for headwaters
determinations for die purposes of NWP
26-widi confusing terms and conditions
•for die new and modified-NWPs. This .
commenter believes diat requiring
permit applicants to distinguish
between perennial, intermittent, and
ephemeral streams, contiguous and
noncontiguous wetlands, non-tidal
wedands and tidal wedands, and
Section 10 and non-Section-10 waters-is"
too confusing and will Undermine die
NWP program. One commenterasked if"
it is die intent of die Corps to expand
die applicability of die new NWPs to
non-contiguous tut adjacent waters.
We believe diat die terms used widi
die proposed new and modified NWPs
will promote consistency in die NWP
program, make the NWP program easier
to implement, and provide District
personnel with the means to better
assess impacts to the aquatic
environment. These terms help Corps
personnel to classify some types of
aquatic resources and make
determinations of minimal adverse
effects. The three types of streams cited
in the Federal Register notice are
generally accepted^stfeam types, based
on the duration of water flow in the
stream channel. We have modified die
applicable waters for most of the
proposed new NWPs to prohibit their
, use in non-tidal wetlands adjacent to
tidal waters. Non-tidal and tidal "*
wetlands have some different functions
•and values. For years, Corps personnel •
have had to distinguish between tidal
and n'on-tidai wetlands*and between
Section 10 and non-Section 10 waters.
Corps personnel have had to identify
diese types of waters to determine
which type of authorization a particular
project may require. *- *
In die July 1. 1998, Federal Register
notice, we proposed definitions for die
diree different types of streams. One
commenter suggested diat die/Corps
provide clarification or a definition to
help determine when a stream has
sufficient flow to be Considered a "water
of die United States." This commenter
recommended diat a stream should'be
considered a wafer of the.United States
only if it-is shown as a perennial or
intermittent stream on a; United States
Geological Survey (U.S.G.S.) quadrangle
map. Two commenters stated diat many.
perennial, intermittent, and ephemeral
streams are perched above die water
table and that die definitions of these
stream types should be based on flow
hydrographs measured over die course
of a year, not die relationship between
die stream bed and die water table. One
commenter said diat the different stream
types cannot be differentiated in die
field and asked whedier perennial,
intermittent, and ephemeral streams
have identifiable beds and banks. •
The Corps regulations state that-noh-
fcidal watejs-of die United States,
including perennial, intermittent, and
ephemeral streams, are waters of .die
United States up to die ordinary high
water mark (see 33 CFR Part 328.4(c)).
These diree stream types typically have
a bed and bank, but die presence of a
bed and bank should not be used to
identify streams; a gully created by
erosion can also be considered, to have
a bed and bank. If a landscape feature
with a bed and bank does not have an
ordinary high water mark, it is not a
water of die United States unless it
contains jurisdtctlonal wetlands. We do
not agree diat U.S.G.S. maps should be
used to determine die limits of
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39349
intermittent and perennial streams. The
upper reaches of streams are often
inaccurately mapped on U.S.C.S.
.quadrangles. These maps typically do
not accurately depict die location and
extent of intermittent or ephemeral
streams. They are useful for identifying
perennial streams, but they should be
used with caution^ Distinguishing
between these threa-stream types will
often require field observations. . •
Stream beds can be located above or -
• below the_water table. Influent streams
contribute'water to die groundwater
because dieir beds are usually located
above the water table. Groundwater
• provides flowing water to effluent
streams because the beds of effluent
streams are located below the water
table. The interaction between
groundwater and stream flows'also
depends, on local geologic features.
Perennial streams are mostly effluent '
• streams, flowing even during dry
periods. Intermittent streams can be .
either effluent or influent, depending.on
the time of year and local precipitation
patterns. During wetter mondas, when. •
the water table is high or at normal
^elevations, intermittent streams are
usually effluent. Intermittent streams
are also effluent during short dry
periods. During substantial dry periods,
intermittent streams 'are usually..
influent. Ephemeral streams are always.
influent, because dieir beds are located
above the water table year.round.
_ Although die focus of die definitions
o'f these stream types is die duration of- -
flowing water over die course of a year,
it is important to consider the source of
the water flowing in die channel. We
believe diat it is appropriate to consider
the source of water when classifying
streams as ephemeral, intermittent, or
perennial. However, as with any
classification scheme for natural
systems, there are exceptions. For
example, in some mountain ranges diere
may be streams with flowing water
almost year round due to'snow melt.: • =>
Some of these stream channels may •
receive no water from groundwater; the
only.source of water_is melting snow. In
these'areas, stream channels widi '
•flowing water year round 'due to snow
melt should be considered perennial. If .
flowing water is present in die channel.
for long periods of time due to snow
melt, but water flow is not year round,
those streams should be considered
intermittent
'• Artificial sources of water should not
affect determinations .of stream types.
For example, pumping water into an
ephemeral stream channel for a long
period of time should not cause that
stream to be classified as an intermittent
stream. We recognize diat the
definitions proposed in the July I, 1998.
Federal Register notice dof not
completely address all possible factors
that can influence the classification of
stream types based on duration of flow,
but by basing the definitions of
perennial, intermittent, and ephemeral
streams on the contribution of *
groundwater to flow patterns, Corps
district personnel can consistently
apply these definitions in a simple and
effective manner intnolt parts of the •
country, without die'need to do
extensive hydrology studies. District
• engineers- will use their discretion to
distinguish betweeruephemeral,'
intermittent, and perennial streams.
These determinations should be based
on their general knowledge of flow
patterns in die area. District engineers
can consider any additional information
the permit applicant provides, based on
actual measurements or modeling.
It is also important to note that, with
die exception of proposed NWP 43,''
'.classifying streams as perennial,
intermittent, or ephemeral is used only
to determine whether or not a PCN is
required. For example, proposed NWP
42 requires a PCN for discharges causing
die loss of greater than 500 linear feet
of perennial oc intermittent stream bed.
NWP'43 does not authorize die
construction of stormwater management
facilities in perennial streams. District
engineers can regionally condition the
NWPs to require notification for certain
stream types and.exercise discretionary
authority when a particular activity may
result in more dian minimal adverse
effects on die aquatic environment.
A commenter stated tiiat the boundary
between tidal waters and non-tidal
wetlands is not well-defined or readily
discernible in some parts of die country
and diat it will be difficult to determine
die precise landward limits of tidal
influence and which NWP is applicable.
Anotiier commenter said diat the
proposed definitions of tidal and non-
tidal wetlands appear to exclude
freshwater wetlands.
The boundary between'tidal wetlands
and non-tidal wetlands can be estimated
by identifying die species of plants
inhabiting die area. Tidal wetlands often
have a different plant species
composition dian non-tidal wedands,
which may be used as an indicator of
the extent of tidal waters. In most cases,
judgement will be required to estimate
the location of die high tide line. Wrack
lines can be used to locate the high tide
line. However, it is not our intent to
require permit applicants to conduct
land surveys or utilize tide gages to
determine die limit of tidal waters. The
definitions o'f tidal and non-tidal
wedands do not exclude freshwater
wetlands. Tidal wetlands can be
inundated by saline (i.e.. marine or
estuarine) water or freshwater. Non-tidal
wetlands are mosdy freshwater
wetlands, but there are non-ddal saline
marshes in some parts of the country.
'Specific Definitions
The following-paragraphs discuss die
comments received in response to the
Julyi, 1998, Federal Register notice - -
concerning the proposed definitions for
the NWPs.
Aquatic Bench:. Two commenters
stated that the definition of diis term'
should not be limited to stormwater
management facilities. They said.diat ' '
these areas are found in natural '
waterbodies, such as ponds or lakes.
This term is defined for die purposes'
of NWP 43, Stormwater Management
Facilities-. It refers to a specific type of
area within a stormwater management
facility diat is constructed for the
purpose of providing a substrate in
water depdis shallow enough to support
populations of emergent aquatic
vegetation diat may enhance die
functions of die stormwater
management facility. Although diese •
' types of areas can be found naturally in
ponds and lakes, we would simply
consider them *o be wetlands. Aquatic
benches constructed in stormwater-
management.facilities may or may not
be considered waters of.the United o Q
States for die purposes of Section 404,"
depending on'die circumstances in .
which they arejbund. If diey.are
constructed wetlands intended to •
improve the quality of water retained in
die stormwater management facility,
they are not considered jurisdictional
wetlands. We are proposing to retain
diis' definition as originally proposed.
Best Management Practices: Np.
comments were received concerning
diis term. We are proposing to retain
diis definition as originally proposed.
Channelized stream: We received
several comments concerning the
proposed definition of this term. One
commenter said diat not all stream
channelization results in increases in.
flow rate or water capacity. Another "
commenter stated that a channelized
stream has b,een manipulated to fix the-
channel location, not to increase
conveyance, and that the definition
should focus on die fixed nature of 0
stream channels, not water flow rates.
One Commenter asked whedier diej
proposed definition includes
transportation activities that change the
channel cross-section or other aspects of
channel geometry of a stream. This
commenter stated diat construction of a
road embankment may require filling
some stream bed and moving the stream
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Federal Register,'Vol. 64. N'o. 1397Wednesday, July 21. 1999/Notices
channel to proce:; the embankment.
According to this commemer. this work
does noc increase conveyance of water.
but changes the channel geometry. This
commenter wanted assurance that these
ivpes of activities are exempt from
Section 404 permit requirements.
Another commenter recommended that
fhe Corps ad'd a statement to-the
definition to clarify that stream
channelization requires a Section 404'
and/or Section 10 permit from the
Corps. ~
Changing the morphology of the
stream channel to increase the.rate of
flow through the stream channel '
constitutes stream channelization.
Relocating the stream channel.is not"
necessarily "stream channelization"
unless the relocation is intended.to
increase the race of water flow through
the stream channel. Streams can be
relocated, with natural morphology
such as meanders, with little or no
changes In water flow rates. Stabilizing
stream banks near a road crossing
(either a bridge or cufvert) is not
considered stream channelization,
unless the stream bed is armored and/
or excavated for a substantial distance
from the road crossing to increase the
rate of water flow. Stream bank
stabilization does not necessarily result .
in channelization, even though it may
fix the position of the stream bed in the
landscape. If only one bank is covered .
with r.ip rap to reduce or prevent bank
erosion, then we do not consider that'
activity as stream channelization.
However, lining the stream bed and
ban!$s with concrete to increase the rate
of water flow through the stream
channel is a method of stream
channelization that does not necessarily
change the location of the stream bed.
For the purposes of NWP 14 and other
. NWPs that can be used to authorize road
crossings.-stabtlizing stream banks'near
culverts or bridge abutments to prevent
erosion near the road crossings, is°n6t , •
considered stream channelization. The •
» construction of-a road embankment by
filling some of the stream and/or
relocating the stream bed is not exempt
from Section 404 permit requirements,'
because these activities are not included
in Section 404 (f) of the Clean Water Act
and they involve'discharges of dredged
or fill material into waters of the United
States. We do not believe It is necessary
to include a sentence In the definition
stating that a Section-404 or Section 10
permit is required for stream
channelization activities. •
One commenter requested
clarification as to whether stream
channelization when done in
crossing or requires separate
authorization. Another commenter
requested that the definition clarify
whether the use of culverts to construct
a road crossing results in a channelized
stream. This commenter stated that
some Corps districts consider culverts
as channel modifications, while others
do not. (
Channel modifications in the,
immediate vicinity of aistream crossing
that, are conducted to allow the water to
flow more efficiently through the
crossing or prevent erosion of the soil
near the crossing are not considered
stream channelization and are part of.
the single and complete road crossing
project. Channel modifications outside
of the immediate vicinity of the crossing
may constitute stream channelization,
and may require a separate
authorization at the discretion of the
District Engineer. When stream
channelization is performed with the
construction of a road crossing, both
activities should be considered as a
single and complete project, which may
be authorized by NWPs or another form
of authorization, such as a regional
general permit or an individual permit.
The installation of a culvert in a stream
bed does not channelize the stream,
provided the length and width of the
culvert is limited to the minimum
necessary to construct the road crossing
and the amount of rip rap placed to.
protect the culvert is the minimum
necessary. • .
One-commenter objected to the last
sentence of the proposed definition,
stating that this sentence is contrary to
the Section 404(f) exemption for
drainage ditches. We concur with this
comment and have removed the last
sentence from this definition.
In die proposed new and modified
NWPs, we used different terms relating
'to stream channelization. For
consistency, we will use die term
"stream channelization", through&ut the
proposed jiew and modified NWPs.
Stream channelization results from'
modifications to increase the rate of
water flow through the;stream channel.'
Placing rip rap along a Stream bartk to
stabilize the bank and reduce erosion
does not necessarily constitute stream
channelization, but lining the stream
bed and bank with concrete or rip rap^
to increase the rate of water flow ,
through the stream channel is stream
channelization.
We are proposing to replace the term
"channelized stream" with "stream
channelization" and modify the
definition as discussed above.
Contiguous wetland: We received
commenters stated that the definition is
unclear. Another commenter stated that
the geographic scope of new NVVPs is
confusing and that the definition
appears to provide inconsistent
guidance describing when a non-tidal
wetland is contiguous to tidal waters.
Two commenters requested 'that the
Corps utilize the term "adjacent"
instead of "contiguous" to limit the use
of die new NWPs. One commenter
expressed concern that the term
"surface waters" would exclude
wetlands that are inundated or saturated
primarily by groundwaten This
commenter recommended the inclusion
of groundwater to establish the
contiguous Connection.
One commenter requested that die
Corps clarify the phrase "normally
•contiguous to the nearest open water,"
as contained in the proposed definition.
Another commenter questioned why a
wetland can act as a surface water
connection for a contiguous wetland but
a ^channel cannot, even diough a stream
channel contains a surface water. One
commenter recommended that diis
definition should state that culverts and
tide gates constitute a surface water
connection and that die definition is
confusing and should be field tested in
different areas of the country. This
commenter'also stated that it is difficult
enough to distinguish between tidal and
non-tidal areas-of a channel without ,
haying to •worry about small .tributaries
or'sloughs draining into the larger
waterbody. The commenter requested
diat the Corps clarify the definition to
state whedier the required surface water
connection has to be present at low,
normal, or high flows or associated with
a certain size flood event. Ano.ther
commenter asked if tide gates break up
the contiguous connection. One
commenter stated that the proposed
definition appears to be a significant,
. change for the purpose of circumventing.
fhe decision in the United States Court
of Appeals for the Fourth Circuit
decision in the United States v. Wilson,
133 F. 3d 251' (4th Cir. 1997). This
commenter believes that the proposed
definition will result in the regulation of
all Isolated waters and wetlands,
regardless of the type of connection, and
that die definition must be clarified to
recognize the different connections
between waters of the United States to
determine if a particular wetland is
isolated. The commenter also believes
that the proposed definition eliminates
die distinction between natural streams
and man-made connections to waters of
the United States.
To increase protection of die aquatic
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39351
N'.VPs in non-cidal wetlands adjacent to
; tidal warcrs instead of prohibiting the
; use of rhose NVVPs in non-tidal
wetlands contiguous to tidal waters.
Therefore, the definition of the term
"contiguous wetland" has been
: removed from the "Definitions" section
; of the NWPs.
Drainage ditch: We received a variety
of comments concerning the proposed
r definition of this term. One commenter
: supported the'proposed definition. ^
\ Another commenter agreed that
• drainage'ditches constructed in. uplands'-
! are noc-waters of the United States. A.'
• commenter stated that a drainage ditch
'is not a stream and that all activities °
associated with drainage ditches-should
1 be exempt from all permits. A number
: of cornmenters stated that channelized
' streams are not drainage ditches and
I that the Corps should retain that.part of
the proposed definition. A commenter
i requested that the Corps identify
I methods that will be used to distinguish.
; between a drainage ditch constructed in
, wetlands and a channelized stream.
Two commenters opposed the exclusion
, ofchannelized streams in the definition
and stated that the proposed definition
! is contrary to the 404(f)(l) exemption,
i which considers' streams that are
1 channelized to improve drainage to be
• drainage ditches. Another commenter • '
; stated that some drainage ditches are
, constructed in intermittent and
\ ephemeral streams.
\ We concur with the last two
: comments in the previous paragraph,
! and have removed the last two
; sentences from the proposed definition.
Channelized streams that are
.; maintained as drainage ditches are
i .waters of the United States, but
• maintenance of these drainage ditches is
; exempt from Section 404 permit
requirements .as long as the maintenance
' activity does not exceed the original .
drainage ditch design and configuration.
One corqmenter stated that the
\ portion of the proposed definition that
* includes the phfase "otherwise extends
; the ordinary high water line of existing
waters" is not clear and that thispart of
! the proposed definition could expand
; the Corps jurisdiction into waters that
have always been thought of as man-
: made extensions which were not •
; considered by some Corps districts as
' jurisdictional.
; This part of the proposed definition is
; consistent with 33 CFR 328.5, which
states that man-made changes may affect
i the limits of waters of the United States,
i but "permanent changes should not be
| presumed until the particular
circumstances have been examined and
i verified by the district engineer.'1 ,
ordinary hi'fgh w'ater mark m'ly. at the
discretion of the District'Engineer,
expand waters of the United States.
We are proposing to modify the
definition ofthe term "drainage ditch"
as discussed above.
Ephemeral stream: Two commenters
stated that the proposed definition is too
broad and subject to various
interpretations. One of these
commenters recommended that the
Corps develop a more specific definition
of the limits of jurisdiction, such as
drSinage area*. One Commenter
- suggested that-the definition should be •
changed'ts exclude drainage. ditches-
Using drainage area to differentiate .
between stream types is not practical
because there are many factors, in
addition to drainage area, that influence
. the duration of water flow-in streams
channels. It is not appropriate to change
the definition to specifically'exclude
drainage ditches, because some drainage
ditches may be channelized streams,
which are.waters of the United States.
• A number of commenters disagreed
that ephemera'! streams are waters of the
United States. One of these commenters
requested that the Corps specify the
circumstances under which ephemeral
streams'are, or are not, waters of the
United States.' One commenter
requested that the Corps issue guidance •
'to its districts to identify ephemeral
.streams and provide prospective
permittees with maps, of streams that
require PCNs under the NWP program.
Ephemeral streams are waters of the /
United States as long as an ordinary * •*•
high.water mark is present and'the
waterbody meets the criteria in 33 CFR
Part 328. If there is no ordinary high
water mark, and there are no adjacent
wetlands, the area is not a water of the
' United .States. The limit of non-tidal
waters ofthe United States is discussed
at 33 CFR Part 328:4 (c). It would be toe
resource intensive to provide maps of
streams that require a PCN for the
purposes ofthe NWPs. Instead, districts'
will determine on a gase-'by-case basis
whether or not a particular stream is
ephemeral, intermittent, or perennial.
We are Rroposing-to retain the
definition. ' '
Farm: For the purposes of the
proposed "modification of NWP 40, we '
proposed a definition of the term "farm"
to help determine what constitutes a
single andtcroplete project Two 0
commenters stated that the proposed
definition is too narrow and will add
unnecessary complexity for farmers,
because using Internal Revenue Service
(IRS) tax criteria to identify farms is too
complicated.
Because of the changes to the
term "farm tract" instead of "farm'-'6o
determine what constitutes a single and
complete project for the purposes of
NWP 40. Farm tract determinations are
not based on IRS criteria. The Farm
Service Agency ofthe U.S. Department
of Agriculture identifies farm tracts. The
rationale for basing the single and
complete project on farm tracts for NWP
40 is discussed in more detail in the
preamble for NWP 40. In the
."Definitions''section ofthe NWPs, we
are proposing to use the Farm Service
, Agency's definition of the term "farm
tract," as found at 7 CFR Part 718.2; to
•replace the proposed definition for
"farm."
Intermittent stream: We received.
similar comments to those received for
the proposed definition of "ephemeral
stream," which were discussed above. A
.number of commenters.stated.that it is
difficult for permit applicants to
distinguish between intermittent and
ephemeral streams and requested
further clarification. One of these
commenters recommended that'the
Corps utilize the ordinary high water
•mark to distinguish between
.intermittent and ephemeral streams: if
an ordinary high water mark (OHWM) is
present, the stream is-intermittent; if an
OHWM is absent, the stream is
ephemeral. Two commenters
recommended..that the .definition
distinguish between intermittent
streams and man-made ditches. Another
commenter stated that intermittent
streams should he excluded from the
NWPs because under the proposed
definition, a swale in a pasture would
qualify as a stream.
The proposed definition is adequate
to differentiate between intermittent and
ephemeral streams. Determinations as to
whether a-particular stream is perennial,
intermittent, or ephemeral will be made
by district engineers on a case-by-case
basis. These determinations should be
based on their general knowledge .of
flow patterns in die area. District
engineers will consider any additional.
information the permit applicant
provides based cm actual measurements
or modeling. Using the OHWM to
distinguish between ephemeral and »
intermittent streams would be contrary „
to 33 CFR Part 328. The limit of
jurisdiction for intermittent and
ephemeral streams is the OHWM. If no
OHWM is present, then that channel is
not a water of the United States. We do
not agree that it is necessary to
distinguish between intermittent t
streams and man-made ditches. An
intermittent stream may have been
channelized to improve local drainage.
Man-made ditches can be constructed in
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Federal Register Vol. 64, No. 1397 Wednesday, July 21. 1999/N'ocices
Braces, such as perennial and
tncermictent streams, as well as uplands.
Man-made ditches constructed in waters
of the United States are still considered
waters of the United States. If a swale
possess an OHVVM. it would be
considered a water of the United States.
if tt meets the criteria in 33 C"FR Part'
328. If a swale lacks an OHWM. but
possess wetland hydrology, hydric soils.
and a hydrophytic plant community, it
may be considered a jurisdictional
wetland, unless the swale was
constructed jn uplands and has not been
abandoned. A swale diat lacks an -
• OHWM or does riot exhibit wetland
characteristics is not a water of the
United States.
Another commenter requested further
, .arification to address situations-where
there is extensive groundwater pumping
for crop irrigation. Except in extremely
wet years, this activity causes some
streams to dry up entirely: without
groundwater pumping for" irrigation,
many of these streams would have
flowing water during most of the year or
year round.
*, Adjacent land use changes can affect
water flow patterns of streams. Removal
of large amounts of groundwater can
decrease the duration of water flow.
through the stream channel over the
course of a year. District engineers
should base their stream classification
determinations on normal
circumstances and whedier or,hot die „•
region is experiencing normal ra'infall
patterns. For example, if the stream has
flowing water for only part of a typical
year due to normal pumping of
groundwater for irrigation or domestic
uses, dien that stream should be
classified as "intermittent." even though
it may have been a perennial stream
prior to the introduction of the activities
that changed the flow pattern. We are
proposing to retain this definition.
Loss of waters of the UniiedStates: A .
number of comrnenter's objected to die
proposed definition because it includes
ex'cavatlon. These commeriters cited the
recent decisions by the United States .
' District Court for the District of
Columbia in AmericanMining Congress
v. United States Army. Corps of
Engineers and die United States Court of
Appeals for trie District of Columbia
Circuit in National Mining .Association
et al. V. U.S. Army Corps of Engineers.
In these decisions,, die District Court
= overturned die Corps ar\d EPA's
revisions to the definition of "discharge
of dredged material," which were
promulgated on August 25, 1993 (see 58
FR 45008) and die Court of Appeals
affirmed the District Court's decision.
excavation. Three commenters asserted
that the definition should not include,
in addition to excavation activities,
flooding and draining activities. A
number of commenters stated that the
definition does not contain any
discussion concerning what constitutes
an adverse effect.
These recent court decisions do not
affect the definition of the term "loss of
•waters of the United States." Because of
these decisions, die Corps does not
regulate excavation of waters of die
United States under Section 404 x>f the
Clean Water Act if .the excavation '
activity results only in'incidental
fallback of excavated material.
Excavation activities that result in more
than incidental fallback of dredged
material into waters of the United States
.require a Section 404 permit and may be
authorized by NWP. District engineers
will determine whether or not a
particular excavation activity requires a
Section 404 permit based on the degree
of die discharge associated with die
excavation activity. In summary, if the
discharge resulting from die excavation
activity is only incidental fallback, then
no Section 404 permit is required. We
believe diat retaining excavation
activities in this definition will reduce
confusion for the regulated public
because some excavation activities in
waters of the United States are still
regulated under Sectiqn 404 and tp
exclude excavation activities from this
definition-would be misleading.' . <
Since die Corps and EPA's revisions
to die definition of "discharge of
dredged material" promulgated on
Augustus. 1993,'were overturned, the •
criteria concerning what constitutes an
adverse effect for die purposes of
Section 404 of die Clean Water Act has
become narrower in scope. Regulatory
Guidance Letters 90-5 and 88-06 were
issued prior to die August 25, 1993, rule
and provide guidance relevant to this
issue. An activity diat converts a""..'
wedand to anodier use can be •
considered a loss of waters of die United
States and regulated under Section 404
if that activity causes die loss~6f, or
substantially modifies, waters of die
United States by eliminating or gready
reducing die principal valuable .
functions of those waters. Losses of «
waters of the United States can occur
eidier by direct impacts (e.g.. covering
by fill) jor by closely-related indirect
impacts (e.g., the changes in vegetation
that occur after a swamp is flooded by
constructing a dam, killing all of die
trees in die flooded area). Any Indirect
adverse effects factored into the acreage
measurement of "loss of waters of the
United States" must eliminate or
valuable functions that the waterbody
provided prior to conducting the
activity. Indirect adverse effects such as
backwater flooding and dewatering are
more strongly related to the discharge
and should be included in the loss of
waters of the United States if diey result
in substantial, long-term adverse effects
on the aquatic environment. Excavation
activities that result only in incidental
fallback and waters affected by that
excavation activity should not be
calculated into the acreage loss unless
die permittee cannot conduct the
excavation activity without the
associated discharge that is regulated
under Section 404.
For the purposes, of the proposed
NWP notification diresholds, we have
modified the sentence addressing the
loss of stream bed by adding the phrase
"perennial and intermittent" before die
word stream, because the proposed
NWPs require notification only for diose
activities that result in die discharge of.
dredged or fill material into waters of
the United States due to filling or
excavating perennial or intermittent
stream beds.
One commenter requested diat the
definition of "loss of waters of the
United States" include the effects of
habitat fragmentation, which could
adversely affects some functions and
values of waters of the United States.
We disagree, because this effect is
beyond the Corps scope of analysis for
Section 404 activities. Many activities
diat result in habitat fragmentation do
not result in a discharge of dredged or
fill material into waters of die United
States, and are not regulated tinder
Section 404 of die Clean Water Act.
We have added sentences to this
definition to differentiate between
permanent and temporary losses of
waters of die United States. Temporary
losses of waters of the United States are
' not included in the measurement of loss '
of waters of the United States. We'are
'proposing to rrlodify the definition of
tiheterrn "loss of waters" of the United
States" as discussed above. ' -
Noncontiguous wetland: In response
to the proposed definition, we received
comments that were similar to the
comments received for the proposed
definition of "contiguous wetland,"
which'were discussed above. Several
' commenters stated diat die proposed . -.
definition is unclear. A commenter
stated that noncontiguous wedands are
• isolated wedands. Another commenter
recommended diat die break between
contiguous and non-contiguous waters
should be based on topography or
hydro logic influence, not die type of
chann -' between the wetland and die
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Federal Register
-.'o. 13-9'Wednesday. July 21. 1999.'Notices
39353
•hat the part of the definition referring
ro "a linear aquatic system with a
defined channel to the otherwise
contiguous wetland" needs to be
clarified and that the term "linear
aquatic system" needs to be defined..
This commenter also recommended that
the Corps include examples and
explanatory statements to describe how
contiguous and noncontiguous wetlands
' differ from each other. One commenter
recommended that the definition should
'state that noncontiguous wetlands do
" not share.a cojmmon groundwater
connection with other waters of the •
United States. . -•• :
To- increase'protection of the aquatic -
environment, we are-proposing to
prohibit the use of most of the new
NWPs in non-tidal wetlands adjacent to
•sidal waters instead of prohibiting the
use of these NWPs in non-tidal wedands
contiguous to tidal waters. Therefore,
the definition of the term
"noncontiguous wetland" has been -
removed from the "Definitions" section
of.the NWPs. .
Non-tidal wetland: No comments
were received on the proposed
definition. We are proposing to retain '
this definition.
Perennial stream: One commenter
requested that the Corps, in the
definition of this term, distinguish
between perennial streams and drainage
ditches. Another commenter stated that'
the definitio'n should be based on the
duration of flow, not on the position of
stream bed relative to the water table.
The definition of tiiis term should not
distinguish between perennial streams
and drainage ditches because some
streams have been channelized to
improve local'drainage. These streams,
which are still waters of the United
States, 'are considered drainage ditches
for the purposes of Section 404(f). The
maintenance'df these channelized • •
streams-as drainage ditches is exempt
from Section 404 permit requirements.
As .previously discussed in this section,
we believe that'it is appropriate te- -.'
' consider the source of water when
classifying streams as ephemeral,
intermitteht, or perennial. The .
definitions for these stream types focus ~
on how long flows in the channel over.
the- course of a year, but the source of'
the- flowing water is also important. It is
, important to distinguish between
natural and artificial sources of water
when classifying stream types for the
purposes of the NWPs. We have
modified the-second'sentence of the
definition, to make it clearer that the
water in the stream channel is due to
. the relative position of'the water table
(i'.e.. groundwater flows into the stream
.ibove the'stre"trri-bed).rVVe'3re proposing
ro modify the definition'of this term as
discussed above. '
Riffle and pool complexes: One
commenter questioned whether or not
riffle and pool complexes are limited to
perennial streams. Another commenter
stated that the definition should include
a reference to 40 CFR Part 230.45. One
commented remarked that the word "of
should be remove'd from before the
word "movement." Two commenters
stated that riffle and pool complexes are
not limited to perennial streams-but- -•
may occur in intermittent and • • . '
ephemera"! streams. One commenter
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39354
Federal Register/Vol. 64. N'o. 139/Wednesday. July 21, 1999/Notices
•tamrnry to Section 10 of die Rivers and
Harbors Act.
The definition proposed in the July I.
1998. Federal Register notice is not
contrary to current Corps regulations
and definitions. All waters subject to the
•?bb and flow of the tide are waters of •
the United States, including spring high
tides. Spring high tides occur two times
per lunar month when the sun. moon.
nnd eardi are aligned with each other
and exert die greatest gravitational
influence on tidal waters, resulting in
the highest and lowest tides that occur
during the cidal'cycle. It is important to
recognize diat spring high tides occur
only two times per lunar month to ^ •
differentiate between high tides-
regularly caused by gravitational
Interactions of the sun, moon, and earth
and storm surges of tidal waters caused
by atmospheric phenomena. To provide
further clarification, we will insert the _
word "lunar" before the word "month"
in che last sentence of this definition.
Tidal waters extend landward of die
mean high tide line. The "mean high
tide line" is an average of tidal heights
over the course of a complete monthly
tidal cycle^Therefore, half of die
monthly tides will be landward of die
mean high tide line and half of the
monthly tides will be channelward of
the mean high tide line. Tidal waters
landward of die mean high tide line are
waters of the United States, but diey are
not navigable waters of die United
States. Therefore, tidal waters landward
of the mean high tide line are subject to
Section 404 of die Clean Water Act, but
not Section 10 of die Rivers and Harbors
Act. See 33 CFR 329.12 for a discussion
of the geographic and jurisdictional
limit of oceanic and tidal waters relative
to Section.10 of die Rivers and Harbors
Act. The definition of diis term has been
modified as discussed above..
Vegecated shallows: No comments
were received concerning die proposed
definition of ihis term. We are
proposing to retain this definition.'
Waterbody One commeater is-unsure
1 why a definition is'required for diis
"term because,"according to.die
commenter, die definition does not
appear anywhere £lse in die Corps
regulatory program. This commenter
also stated diat wedands are
waterbodles, but often do "not have
discernible high water marks. This
commenter recommended the
elimination of diis term from die
" Definitions'' section of the N WPs.
Anodier commenter stated diat die
proposed definidon does not have a
frequency threshold for die
establishment of an ordinary high water
mark (OHWM) and recommended diat
One commenter stated chat the Corps
should clarify how the definition relates
to open waters and that the definition
should clarify that waterbodtes may or
may not be regulated under Section 404
of die Clean Water Act. Another
commenter recommended that the
definition exclude farm ponds.
The word ".waterbody''' was used
throughout the July 1, 1998, Federal
Register notice for die proposed new
and modified NWPs. It is also used in
the NWP regulations issued on ,
November 22, 199"! (56 F^R 59110-
59147), particularly for the definition of
the term '^single and complete project"
at 33 CFR Part 330.2(i). This word 'is
also used in NWP 29'and General ?
Condition 4. The intent of die definition
is to ensure consistent application of the
term for the NWPs.
Waterbodies consist of open and
flowing waters, as well as contiguous
wetlands. We will modify this.
definition to include contiguous
wetlands, which may not have an
OHWM. For example, a lake may be
surrounded by a wetland fringe
inhabited by emergent wetland
vegetation. The OHWM may or may not
be the same as the wetland boundary,
which may extend beyond die OHWM.
Wetlands contiguous to open or flowing
waters should be considered as part of
die same waterbody. A wedand can be
considered a waterbody if it is
inundated widi flowing or standing
water. ' ' .. .
To provide further clarificatiorrto
distinguish between wetlands and open
and flowing waters, we have added a
definition for die term "open water,"
which is often used in these NWPs. We
are proposing to modify diis definition
as discussed above.
Additional Definitions: In response to
the July 1, 1998, Federal" Register
notice, we received several comments
requesting definitions of additional ,
terms used in die NWP program. Some
of diese terms will be added to die
definition section of die NWPs, as
discussed below. •
For die purposes-of NWP 27 and die.
NWP conditions addressing
compensatory midgation, we'are
proposing to add definitions of the
terms "compensatory mitigation/'
"restoration," "creation,"
"enhancement," and "preservation."
The definitions for diese.terms diat were
developed for die "Federal Guidance for
die Establishment, Use, and Operation
of Mitigadon Banks," published in die
November 28, 1995, issue of die Federal
Register (60 FR 58605-58614) will be
used in die "Definitions" section of die
Two commenters requested that the
Corps include a definition of die word
"aquatic" in the NWPs. They believe
that the Corps should include a
definition of this word diat reflects the
limits of its regulatory authority or
replace this word with the phrase
"waters of the United States" or .
"navigable waters."
We-'believe that is not necessary to
include a definition of this wor.d for the
NWP program. .If an aquatic area is not
a witer of die United-States, then it is
not subject to either Section 404 or
Section .10.
In response to comments received_in
"response to our proposed'definition^of - .
the term ''waterbody," we are proposing a
to add a definition of die term-"open
water" because this term is used in,
NWPs 27 and 39 and General
Conditions 9 and 19.
One commenter requested a definition
of the phrase "projects that may have
more than minimal adverse effects on
the aquatic environment." This
commenter believes diat a definition is
necessary to provide clarification to
district engineers and regulated public.
We disagree with diis comment. For
every request for NWP authorization,
district engineers must determine
whether or not diat particular project
will result in more than minimal
adverse effects. This determination is '
made on a case-by-case basis, and
depends on many factors which cannot
be captured in a simple definition.
Therefore, we will not^ include a . • ~
definition of diis phrase.
Another commehter suggested •
including.a definition of "region,"
because division and district engineers
should utilize diis term consistently.
We do not agree diat it is necessary
to define die term "region" for die
NWPs, because no specific definition is
required. A region is simply a
geographic a'rea. For die purposes of
regional conditioning or revocation of
' die NWPs, a region may be a waterbody,
watershed, sub-watershed, county, state,
or Corps district. Corps districts review
cumulative adverse effects on die
aquatic environment on a watershed
basis. Division or district engineers can
determine which scale of region is -
appropriate. If cumulative adverse
effects are more dian minimal in-a
:, single sub-watershed, dien it would be
appropriate to suspend or revoke NWP
only in that sub-watershed. If the
cumulative adverse effects on die , _
aquatic environment due to an NWP are
more dian minimal in an entire state,
then die appropriate region would be
die state. For diese reasons, we wil^not
add a definition of die term "region" to
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39355
One commencer requested that we
add a definition of the term "restored
channel" to the NWPs.
We disagree that such a definition is
necessary because "restoration," as
presently used for wetland
compensatory mitigation projects, can
apply to streams as well. The"restoration
of a stream channel reestablishes the
stream channel where it previously
existed.
• Two commenters recommended that
we include a definition of the term
"single and complete project" with the
NWPs. One commenter stated that the
definition in 33 CFR-Part 330.2(i) is
confu§ingand difficult to implement,
especially widi 'nes'pect tp the
cumulative adverse effects that-occur -
wh'en a-Iinear pr'oject.crosses single
waterbody several times. Another
commenter requested a .definition of this
term that would include all current and
future phases -of development of land
under a single common ownership
which has been subdivided or
transferred to facilitate development.
We believe that this term does not
need to be redefined. For convenience,
we are proposing to a'dd a defmition.of
the term "single and complete project"
to die "Definitions"'section of die.
NWPs, which' paraphrases'the definition
at 33 CFR Part 330.2(i). For linear
' projects, district engineers will continue
to assess cumulative adverse effects on
die aquatic environment to determine if
the project can be audiorized by NWPs.
If the adverse effects on die aquatic
environment are more than 'minimal,
individually or cumulatively, the"
District Engineer will exercise - •
discretionary audiority and require an
individual permit for the project. For
subdivisions, the subdivision provision
of proposed.NWP 39'as well as 33 CFR
Part 330.2(1) will be used to determine
acreage limits for particular
subdivisions. In addition, distrist
engineers will consider whether or not
each phase of a multi-phase project can
be considered as a separate single and
complete project. If each phase has -
independent utility,- then each phase
can be* considered a separate single and
complete project.
One commenter requested that the
definition of die term "small perennial
stream," which was used in NWPs 40
and 44, should be included in die
"Definitions" section of die NWPs.
We have deleted die reference to
small perennial streams from NWPs 40
and 44. Therefore, no definition of this
term is needed.
One commenter recommended that
the Corps include a definition of the
term "stream" in die NWPs. Anodier
definitiori'of !'^tream.'bed[?'?0ecaijse die
definition on page 36042ipf the July I,
1998, Federal Register notice is a
definition of "stream," not "stream
bed." The term "stream bed" is also
used throughout the NWPs.
We agree that the definition on page
36042 of the July 1, 1998, Federal
Register notice is actually a definition of
the term "stream" and believe that it is
unnecessary to include a definition of
"stream"'in die NWPs since die term
"stream bed" is used throughout the
NWPs, particularly in the context of the
500 linear foot notification requirement.
Therefore, we are proposing to add a
definition of die term "stream bed" to.
the "Definitions" section of the NWPs.
The limits of the stream bed are
identified by die location of die
ordinary high water marks on either
side of the stream bed. Any wetlands
contiguous to the stream bed, but
outside of die ordinary high water mark,
are not part of die stream bed.
Due to changes in the NWPs made in
response to die comments received in
reply to the July 1, 1998, Federal
Register notice, we are proposing to add
definitions for several more terms used
in the NWPs. These terms include:
"project area" and "independent
utility." We are also proposing to add a
definition of the term' "permanent-
-above-grade fill" to die "Definitions"
section since diis term is used in
proposecl General Condition 27. -
One commenter requested that the
Corps include definitions of "important
spawning areas" and "water quality
management plan" in this section.
We disagree that definitions of these
terms are necessary. District engineers
will determine which areas are
important spawning areas. The content
of die water quality management plan,
if required by General Condition 9, is
also at the discretion of die District
Engineer.
VI. Comments on Other Issues in July 1.
' 1998, Federal Register Notice
Other Suggested NWPs
In response to the December 13, 1996,'
Federal Register notice, several
commenters recommended additional
replacement NWPs. We do not believe
diat development of more new NWPs is '
warranted at this time. Some of the
recommended NWPs are for activities in
areas that are not considered waters of
die United States and others arejfbr
activities that are exempt from permit
requirements of Section 404 of the Clean
Water Act and Section 10 of die Rivers
and Harbors Act.
Maintenance of Landfill Surfaces:
statement diat routine maintenance of
landfill surfaces does not require a
Section 404 permit. Several commenters
requested that we reiterate such
language in the final Federal Register
notice for die NWPs, and furdier
requested that die Corps also include a
discussion of the 9th Circuit decision in
the Resource Investment Incorporated
(RII) v. Corps of Engineers case. One
commenter disagreed widi the statement
that most landfills are constructed in
uplands, stating diat there are a number
. of landfalls constructed on wedands.
Ponded areas that develop^on laridfill -
surfaces are not waters of1 die United
States. Although a landfill may be
constructed in'wedands.- die landfall
.replaces.the watejbody with dry land.
Therefore, diat area is no longer a water
of die United States. The landfill cap
may develop ponded areas that may be
inhabited by wedand vegetation, but
these areas must be repaired to prevent
additional air and water pollution.
These maintenance activities do riot
require a Section 404 permit because
these ponded areas are not waters of die
United States. The preamble to 33 CFR
Part 328'in the November 13, 1986,
Federal Register (51 FR 41217, Section
328.3) states that "water filled.
depressions created in dry land
incidental to construction activity •
* . * *" are not considered .waters of die
United^States "* * * until'die
construction or excavation operation is
abandoned and die resulting jbody of '
water meets die definition of waters-of
the United States." The landfill is not
abandoned because of the routine
maintenance required by law to keep
die landfill surface at die. designed
grade. Since routine maintenance of
landfill surfaces does not require a
Section 404 permit, we will not be.
developing an NWP for diis activity. •
Widi regard to requests to include a T
discussion of die RII case, this-matter is
still in- litigation and such a discussion
is inappropriate at diis time.
Maintenance a'no>Filling of Ditches
Adjacent to Roads and Railways.
' Although a few commenters requested
a new NWP audiorizing the
maintenance and filling of ditches
adjacent to roads and railways, such a
NWP is not necessary. In response fo the
July 1, 1998, Federal Register notice.
most commenters stated diat this
activity is exempt from regulation or is
outside of die Corps jurisdiction. One
commenter stated diat wet weather
conveyances should not be regulated
because it would greatly increase the
Corps workload. Anodier commenter
noted diat, to meet safety design
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39356
Federal Register Vol. 64. No. 1397Wednesday. July 21. 1999/Notices
widen and flatten side slopes of the
embankment by adding fill to one side
of the ditch.
The maintenance of roadside or
railroad ditches constructed in uplands
does not require a Section 404 permit
since these ditches are not waters of the
United States, even though they may
suoport wetland vegetation. The
preamble to 33 CFR Part 32S.3.-as
published in the November 13. 198"6.
issue of the Federal Register (51 FR
41217). states that "non-tidal drainage
or irrigation ditches excavated on dry
land" are generally" not considered to be
waters of the United States. Filling these
ditches to widen the road or railroad
bed does not require'a Section 404 •
permit.
If these roadside or railroad ditches
are constructed in waters of the United
States, the maintenance of these ditches
is exempt from Section 404 permit
requirements (see CFR Part323.4(a)(3)).
provided the ditch is restored to its
original dimensions and configuration.
However, the construction of these
ditches in waters of the United States
requires a Section 404 permit and may
, be authorized by an NWP. an individual
permit, or a regional general permit. A
Corps permit Is required to widen the
road or railroad bed if the ditches
adjacent to the existing road or railroad
bed were constructed in waters of the •
United States. The construction or
maintenance of roadside and railroad
ditches In navigable waters of the
United States requires a Section 10
permit. Furdiermore. if die maintenance
of a roadside ditch Includes
reconfiguring that ditch, the activity
does not qualify for the exemption at 33
CFRPart323.4(a)(3).
Maintenance of Water Treatment
Facilities
A commenter requested that the Corps
consider a new NWP for the
• maintenance of water treatment
facilities, such as the removal of
material from constructed settling
lagoons and associated constructed -
wetlands, maintenance and de-watering
of stock ponds for livestock, and
.. maintenance of recharge ponds for
water supplies. One commenter said
diat the Corps description on page
36063 of the July 1, 1998, Federal
Register notice characterizing exempt
activities related to stock ponds
contained errors (e.g., water quality
benefits "test").
Water treatment facilities constructed
in uplands do not require a Section 404
permit for maintenance activities. We
5 e\t ^o^orolli/ rnn«;iHpr "falrtlficial
retain water and which are used
exclusively for such purposes as stock
watering, irrigation, settling basins, or
rice growing" to be waters of the United
States. (Refer to the preamble for 33 CFR
Part 328.3, as published in the
November 13, 1986, issue of the Federal
Register (51 FR 41217).)
The proposed modifications to NWP 3
and NWP 7, which authorize the
removal of accumulated sediment in the
vicinity of existing structures, should
address some of these issues. Removal
of sediments from detention and setding
basins constructed widi a Section 404
permit may be authorized by NWP 7 as
long as die maintenance activity is
associated with an intake or outfall
structure. Maintenance of recharge
ponds constructed in uplands does not
require a Section 404 permit, but the
maintenance of these ponds constructed
in waters of die United States may be
autiiorized by existing NWPs, such as
NWPs 3, 13, or 18. Therefore, these
activities have not been specifically .
included in the proposed NWPs.
Widi regard to comments relating to
stock pond exemptions, we provide the
following clarification: The construction
of stock ponds is an exempt activity;
thus, activities necessary for the
construction and maintenance of stock
ponds are exempt from Section 404
permit requirements. Maintenance
activities; such as .the deepening of a
stock pond, do not require a Section 404
permit provided .the activity does not •
increase in the lateral extent of die
pond. Additionally, die "construction or
maintenance activity may not bring a
water into a use to which It was not
previously, subject and it may not impair
die flow or circulation or reduce die
reach of such waters.
NWP 31: In die July 1, 1998, Federal
Register notice, we responded to a
.request to expand the scope of NWP 31
to authorize other maintenance
activities associated widi flood control
and maintenance of water supp ly -'
•facilities. In response to diis pant of die
July 1, 1998, Federal Register notice,
several commenters addressed Issues
related to NWP 31. Two commenters
suggested diat routine maintenance
activities should be omitted from die
requirements of die Corps regulatory
program. Anodier requested diat die
Corps explain why a single activity may
be audiorized by three different NWPs,
in this case NWP 3, 7, or 18 to authorize
removal of accumulated sediments.
Any maintenance activity diat
involves a discharge of dredged or fill
material into waters of the United States
requires a Section 404 permit, unless
the exemptions in Section 404(0: adding
other maintenance activities to Section
404(f) requires modification of the Clean
Water Act through the legislative
process. Therefore, routine maintenance ~
activities cannot be omitted from the
Corps Regulatory Program.
NWPs 3, 7, and 18 were developed to
authorize specific activities. Although
we are proposing to modify both NWPs
3 and 7 to authorize the removal of
accumulated sediments, this activity is
subject to different terms in these
NWPs, based on the nature of the v/ork.
The removal of accumulated sediments.
in die vicinity of existing structures.
authorized by paragraph (ii) of NWP 3
will allow permittees to restore die
waterway in die immediate vicinity of
structure and protect diat structure with
rip rap. The purpose of part (ii) of NWP"
7 is to restore outfalls, intakes, small
impoundments, and canals to original
design capacities design configurations. •
NWP 7 authorizes maintenance
dredging or maintenance excavation of
canals associated widi intakes and
outfalls; paragraph (ii) of NWP 3 does
not authorize diat activity. NWP 18
audiorizes minor discharges, which is
not die same as die activities audiorized
by NWPs 3 and 7.
We continue to believe that NWP 31
does notjequire further modification at
diis time, for die same reasons
discussed in the July 1, 1998, Federal .
Register notice.
Regional Conditioning of Nationwide •
Permits: Concurrent widi diis Federal
Register notice, District Engineers are •
issuing local public notices. Division
and district engineers have proposed
regional conditions or revocation of
some or all'of die NWPs contained -in
diis Federal Register notice. Regional
conditions may also be required by State
Section 401 water quality certification
or Coastal Zone Management Act
consistency determinations...District
engineers will announce regional
conditions .or revocations by issuing
local public notices. Information on
regional conditions and revocation can
. be obtained from die appropriate
District Engineer, asr indicated below or
at die District's Internet home page.
Furthermore, this and additional
information can be obtained on die
Internet at the Corps Regulatory Home
Page at http://www.usace.anny.mil/
inet/functions/cw/cecwo/reg/.
ALABAMA
Mobile District Engineer, ATTN: CESAM-
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Federal Register/Vol. 64.'No. -1397Wednesday, July 21. 1999/Notices
39357
ALASKA
Alaska District Engineer, ATTN: CEPOA-
CO-R. P.O. Box 898. Anchorage AK
99506-0898 . -
ARIZONA
Los Angeles District Engineer, ATTN:
CESPL-CO-R, P.O. Box 2711. Los
Angeles. CA 90053-2325
ARKANSAS
. Little Rock District Engineer. ATTN:
' CESWL-CO-P. P.O. Box 367, Little Rock.
AR 72203-0867
CALIFORNIA
Sacramento District Engineer. ATTN:
CESPK-CO-O. 1325 J Street.
Sacramento, CA 95814-4794
COLORADO ' ,
Albuquerque District Engineer,-ATTN: '
. CESPA-CO-R. 4101 Jefferson Plaza NE.
Room 313, Albuquerque, NM 87109
CONNECTICUT
New England District"Engineer, ATTW:
CENAE-OD-R. 696 Virginia Road,
Concord, MA 01742-2751 •'•
DELAWARE
Philadelphia District Engineer, ATTN:
CENAP-OP-R. Wannamaker Building,
100 Penn Square East Philadelphia. PA
19107-3390 . •
FLORIDA
Jacksonville District Engineer, ATTN:
CESAJ-CO-R, P.O. Box 4970,
Q Jacksonville,- FL 32202-4412
GEORGIA
Savannah district Engineer, ATTN:
CESAS-.OP-F.- P.OT Box 889, Savannah. .
GAS 1402-0889 . •
HAWAII . ' • • •
Honolulu District Engineer. ATTN:
.- CEPOH-ET-PO. .Building 230, Fort
Shatter, Honolulu, HI 96858-5440
IDAHO
Walla Walla District Engineer. ATTN:
CENWW-OP-RF, 210 N. Third Street,
City-County Airport, Walla Walla, WA
99362-1876
ILLINOIS
Rock Island District Engineer, ATTN:
CEMVR-RD, P.O. Box 004. Rock Island.
IL 61204-2004
INDIANA
Louisville District Engineer. ATTN:
CELRL-OR-F. P.O. Box 59. Louisville.
KY 40201-0059
IOWA '.• •
Rock Island District Engineer, ATTN:
CEMVR-RD, P.O. Box 2004, Rock bland,
IL 61204-2004 ' . '
KANSAS o
Kansas City District Engineer, ATTN: '
CENWK-OD-P, 70tf Federal Building.
601 E. 12th Street, Kansas City, MO
64106-2896
KENTUCKY
Louisville District Engineer, ATTN:
CELRL-OR-F, P.O. Box 59. Louisville.
. KY 40201-0059'" • » '
LOUISIANA
New Orleans District Engineer, ATTN:
CEMVN-OD-S, P.O. Box 60267, New
Orleans, LA 70160-0267
MAINE
New England District Engineer. ATTN:
CENAE-OD-R. 696 Virginia Road.
Concord. MA 01742-2751
. MARYLAND -:.-' '.-.' : VK,, J.-
Baltimore District Engineer ATTN'
CENAB-OP-R. P.O. Box 171 5,
Baltimore. MD 21203-1715
MASSACHUSETTS
New England District Engineer. ATTN:
CENAE-OD-R. 696 Virginia Road.
Concord. MA 01 742-275 1
MICHIGAN
Detroit District Engineer. ATTN: CELRE-
• CO-L, P.O. Box 1027, Detroit, MI 48231-
1027
MINNESOTA
St. Paul District Engineer. ATTN: CEMVP-
CO-R, 190 Fifth Street East, St. Paul, MN
55101-1638
MISSISSIPRI ' •' '"
Vicksburg. MS 39 183-3435
MISSOURI
Kansas City District Engineer. ATTN:
CENWK-OD-P. 700 Federal Building.
601 E. 12th Street, Kansas City, MO
64106-2896 ' '
MONTANA
Omaha District Engineer. ATTN: CENWO-
OP-R, 215 N. 17th Street, Omaha. NE
68102-4978 •
NEBRASKA
Omaha District Engineer-, ATTN: CENWO-
• OP-R. 215 N. 17th Street, Omaha. NE
68102-4978
NEVADA
Sacramento District Engineer, ATTN:
CESPK-CO-O, 1 325 J Street,
Sacramento, CA 95814-2922
NEW HAMPSHIRE- " . . ,
New England District Engineer, ATTN:
•CENAE-OD-R. 6S6 Vlrglnia'Road.
Concord. MA 01742-2751
NEW JERSEY
Philadelphia District Engineer. ATTN:
CENAP-OP-R, Wannamaker Building,
100 Penn Square East, Philadelphia, PA
19107-3390
NEW MEXICO
Albuquerque District Engineer, ATTN:
CESWA-CO-R, 4101 Jefferson Plaza NE,
Room 313, Albuquerque, NM 87109
NEW YORK
New York District Engineer. ATTN: -
CENAN-OP-R, 26 Federal' Plaza, New
York, NY 40278-9998
NORTH- CAROLINA
Wilmington District Engineer, ATTN:
CESAW-CO-R, P.O. Box 1890,
Wilmington, NC 28402-1890
NORTH DAKOTA
Omaha District Engineer, ATTN: CENWO-
OP-R, 2 15. North 17th Street, Omaha, NE
68102-4978 ,
OHIO • . '
Huntington District Engineer. ATTN:
CELRH-OR-F. 502 8th Street,
Huntington, WV 25701-2070
OKLAHOMA
Tulsa District Engineer, ATTN: CESWT-
OD-R^P.O. Box61,Tulsa.OK74121- •
0061
OREGON
Portland District Engineer, ATTN:
CENWP-PE-G, P.O. Box 2946, Portland.
OR 97208-2946 _ _
PENNSYLVANIA
Baltimore District Engineer, ATTN'
CENAB-OP-R. P.O. Box 1715.
Baltimore. MD 21203-1715
RHODE ISLAND
New England District Engineer, ATTN-
CENAE-OD-R. 696 Virginia Road
Concord, MA 01742-2751
SOUTH CAROLINA
Charleston District Engineer ATTN-
CESAC-CO-P, P.O. Box 919. Charleston,
SC 29402-0919 . -
SOUTH DAKOTA
Omaha District Engineer. ATTN- CENWO-
OP-R. 215 North 17th Street. Omaha, NE
. 68102-4978
TENNESSEE
Nashville District Engineer, ATTN: .
CELRN-OR-F, P.O. Box 1070, Nashville
TN 37202-1070 • '•
TEXAS • .
Ft. Worth District Engineer, ATTN:
i. CESWF-OD-R, P.O. Box 17300. Ft.
Worth/TX 76102-0300
UTAH
Sacramento District Engineer, ATTN-
. CESPK-CO-O, 1325 J Street. CA 95814-
2922
VERMONT
New England District Engineer, ATTN:
CE.NAE-OD-R, 696 Virginia Road.
Concord, MA 01742-2751
VIRGINIA • . ' •> •
Norfolk District Engineer, ATTN: CENAO-
OP-R, '803 Front Street, Norfolk, VA
23510-1096
WASHINGTON
Seattle District Engineer., ATTN: CENWS-.
OP-RG; P.O. Box 3755, Seattle, WA
98124-2255
WEST VIRGINIA
Huntington District Engineer, ATTN:
CELRH-ORF, 502 8th Street, Huntington,
WV 25701-2070 •" .
WISCONSIN .
St. Paul District Engineer. ATTN: CEMVP-
CO-R. 190 Fifth Street East. St. Paul. MN
55101-1638
WYOMING
Omaha D istrict Engineer, ATTN: CENWO-
OP-R, 215 North J7thStreet, NE 68102- '*
4978
DISTRICT OF COLUMBIA
Baltimore District Engineer. ATTN:
CENAB-OP-R, P.O. Box 1715,
' Baltimore, MD 21203-1715
PACIFIC TERRITORIES
Honolulu District Engineer. ATTN:
- CEPOH-ET-PO, Building 230, Fort
, Shafter, Honolulu, HI 96858-5440
PUERTO RICO & VIRGIN ISLANDS
Jacksonville.Dlstrict Engineer, ATTN:
CESAJ-CO-R, P.O. Box 4970,
Jacksonville, FL 32202-4412
Dated: July 13,1999.
Approved:
Hans A. Van Winkle,
Brigadier General. U.S. Army, Deputy
Commander for Civil Works.
Authority
Accordingly, we are proposing to
issue new NWPs, modify existing
NWPs, and add conditions and to add
NWP definitions under the authority of
Section 404(V»\ nf »ha P.loan \AMt-oi- &<-<•
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39358
Federal Register. Vol. 64. No. 1397Wednesday, July 21. 1999/Notices
33 USX, 1344) and Section I Oof the
Rivers and Harbors Act (33 U.S.C. 403).
Nationwide Permits, Conditions.
Further Information, and Definitions
A-. Index of Nationwide Permits.
Conditions. Further Information, and
Definitions
Nationwide Permits
3, Maintenance
< 7. Outfall Structures a'nd Maintenance
12, Utility Line Activities
14, Linear Transportation-Crossings
27. Stream and Wetland Restoration
Activities
39. Residential. Commercial, and
Institutional Developments
40. Agricultural Activities •*
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities,
43. Storm water Management Facilities
44. Mining Activities •
; Nationwide Permit General Conditions
1. Navigation
2. Proper Maintenance
3. Soil Erosion and Sediment Controls
4. Aquatic Life Movements
5. Equipment
6. Regional and Case-by-Case
Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification
14. Compliance Certification
15. Use of Multiple Nationwide Permits
16. Water Supply Intakes
17. Shellfish Beds
18. Suitable Material
19. Mitigation
20. Spawning Areas
21. Management of Water Flows
22. Adverse Effects from Impoundments
• 23. Waterfowl Breeding Areas
24. Removal of Temporary Fills
25. Designated Critical Resource Waters '
26. Impaired "Waters" „
27. Fills Withiri.the 100-year Floodplain
Further Information . _'•'
Definitions
Aquatic Bench
• Best Management Practices
Compensatory mitigation
Creation
Drainage ditch.
Enhancement
Ephemeral stream
Farm tract •
Independent utility
Intermittent stream
Loss of waters of the United States
Perennial stream
Permanent above-grade fill
Preservation
Project area
Restoration
Riffle and pool complex
Single and complete project
Stormwater management
Scormwater management facilities
Stream bed
Stream channelization
Tidal wetland
Vegetated shallows • ,
Waterbody " ' .
B. Nationwide Permits(and Conditions
3. Maintenance. Activities related to:
(i) The repair, rehabilitation, or
replacement of any previously
authorized, currently serviceable,
structure, or. fill, or of any currently
serviceable structure or fill authorized
by 33 CFR 330.3, provided that the •
structure or fill is not to be put to uses
differing from those uses specified or
contemplated for it in the original
permit or the most recently authorized
modification. Minor deviations,in the
structure's configuration or filled area
including those due to changes in
materials, construction techniques, or
current construction codes or safety
standards which are necessary to make
repair, rehabilitation, or replacement are
permitted, provided the adverse
environmental effects resulting from
such repair,' rehabilitation,.-or
replacement are minimal. Currently
serviceable means useable as is or with
some maintenance, but not so degraded
as to essentially require reconstruction.
This nationwide permit authorizes the •
repair, rehabilitation, or replacement of
those structures or fills destroyed or
damaged by storms, flood's, 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 ca'sis"
of catastrophic events, such as
hurricanes ortornadoes, diis two-year
•limit may be waived by theTDistrict
Engineer, provided the permittee can
demonstrate funding, contract, or other
similar delays.
(ii) Discharges of dredged or fill
material, including excavation, into all
waters of the United States to remove
accumulated sediments and debris In
the vicinity of. and within, existing
structures (e.g.. bridges, culverted road
crossings, water Intake structures, etc.)
and the placement of new or additional
rip rap to protect the structure, provided
the permittee notifies the District
Engineer In accordance with General
restore the waterway in the immediate
vicinity of the structure to the
approximate dimensions chat 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 muse
be deposited and retained in an upland
•, .:rsa unless otherwise specifically .
approved by the District Engineer under
separate authorization. Any bank
stabilization measures'not directly
associated with the structure will
require a separate authorization from"
the District Engineer.
(iii) Discharges of dredged or fill
material, including excavation, into all
waters of the United States for activities
associated with the restoration of
up land areas damaged by a storm, flood, '
or other discrete event, including the .
construction, placement, or installation '
of upland protection structures and
'minor dredging to remove obstructions
in a water of the United States. (Uplands
lost as a resulf'of a storm, flood, or odier
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 die damage. The permittee should
provide evidence, such as a recent
topographic survey or photographs, to
justifythe extent of the proposed^- " •
restoration., The restoration of the
damaged areas cannot exceed"the
contours,-or ordinary high water mark,
that existed prior to the damage'. The
District Engineer retains the right to
. determine the extent of the" pre-existing •
conditions and the extent of any
restoration work authorized by this '
permit Minor dredging to remove.
obstructions from the'adjacent
waterbody is limited to 50 cubic yards
below the plane of die ordinary'high
water mark, and is limited to the
amount necessary to restore the prer
existing bottom contours of die
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.
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Federal
Register
"oi. 54. No. 139/Wednesday. July 21. 1999/Notices
39359
restore damaged upland area's. This
permit cannoc be used to reclaim
historic lands lost, over an extended
period of time, to normal erosion
processes.
Maintenance dredging for the primary
purpose of navigation and beach
restoration are not authorized by this
permit. This.permit'does'not authorize
new stream channelization or stream
relocation projects. Any work „
authorized by this permit must not
cause more than minirriafcdegradation of
water quality, more than minimal
changes to the flow1'characteristics of the
stream, or increase flooding (See • .«
General Conditions 9 and 21).
Mote: This NWP authorizes the repair,
rehabilitation, or replacement of any
previously authorized structure or fill that
does not qualify for the Section 404(0
exemption for maintenance. For example, the
repair and maintenance of concrete-lined
channels are exempt from Section 404 permit-
-requirements. (Sections 10 and 404)
7. Outfall Structures and
Maintenance. Activities related to: (i)
Construction of outfall structures and
associated intake structures where the
effluent from the outfall is authorized,
conditionally authorized, or specifically
exempted, or are otherwise irr—•'
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 o'utfall
and intake structures, accumulated
sediments from small impoundments
associated with outfall and intake
structures, and accumulated sediments
from canals associated with outfall and
intake structures, provided that the
activity meets all of the following' •
criteria:
a. The permittee notifies the District
Engineer in accordance with General
Condition 13; *, . ' •
h. The amount of excavated or
dredged material must be line minimum' .
necessary to restore the outfall's, intakes,
small impoundments, and qanals 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'sedirnent
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: Artd- 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-id 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 Hne" is defined as
any pipe or pipeline for the 0-
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 otTfie' ~
United States, provided that the
material is not placed in.such a manner
that it is dispersed by currents or other,
forces. The District Engineer may extend
the period of temporary side casting not
to exceed a total of'180 days, where
appropriate. In wetlands, the top 6" to
12" of the trench should normally be
backfilled with topsoil from the trench.
Furthermore.'the trench cannot be
constructed in such a manner as to
drain waters of the United States (e.g..
backfilling with extensive gravel layers,
creating a french drain effect). For
example, utility line trenches can be
backfilled with clay blocks to ensure
that the trench does not drain the waters
of the United States through which the •
utility line is installed. Any exposed •
slopes and stream banks must'be •
stabilized immediately upon completion
of the utility line crossing of each
waterbody.
(ii) Utility line sufasiarionsrTfte
construction, maintenance, or
expansion of a substation facility ;
associated, with a power.line or utility
line in non-tidal waters of the United
States, excluding non-tidal wetlands
adjacent to tidal waters, provided the
activity does not result in the loss of
greater than 1 acre of non-tidal waters
of the United States.
(iii) Foundations for overhead utility
line towers, poles, and anchors: The
construction or maintenance of .
foundations for overhead utility line
towers, poles, and anchors in .ill 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
• maintenance1 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-nofceause'
the loss of greater than 1 acre of non-—~
tidal waters of'the United States. Access
roads shall be the minimum width- -
necessary (see Note 2, below). Access-
roads must be constructed so that the
length of the road minimizes the
adverse effects on waters of the United .
States and as near as possible to
preconstruction contours and elevations
(e.g., at grade corduroy roads or
geotextile/gravel roads). Access roads
constructed above preconstruction.
contours and elevations in waters of the
United States must be properly bridged.
or culverted to maintain surface-flows. '
All access^coadswill be constructed
with pervious surfaces. '
" "The term "utility line" does not
include activities which drain a water of
the United States, such as drainage tilei
or french drains; however, it does apply
to pipes conveying drainage from
another area. For the purposes of this
NWP; the loss of waters of the .United
States includes the filled area plus
waters of the United States that are
adversely affected by flooding,
'excavation, or drainage as a result of the
project. Waters of the United States
temporarily affected by filling, flooding,
excavation, or drainage, where the
project area is restored to
precanstruction contours and
elevations, are not included in the -
calculation ofpermanent 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.
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.ind access roads is authorized, provided
rhe cleared area is kepc to the minimum
necfcssary 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 co the minimum necessary to
construct the utility line, substations.
foundations, and access roads. Excess
material muse 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).
iVoc///car/on: The permittee must •
notify the District Engineer in
accordance widi General Condition 13,
if any of die following criteria are met:
(a) Mechanized land clearing in a
forested wetland for- die utility Jirie
right-of-way; ' ^
(b) A Section 10 permit is required;
(c) The utility line in waters of the
United States, excluding overhead lines,
exceeds 500 feet;
(d) The utility line is placed within a .
jurlsdictlonal area (i.e.. a water of die
United States), and it runs parallel to a
stream bed diat is within that
jurisdlctional area;
(e) Discharges .associated with die
construction of utility line substations '"
that result in die loss of greater than 'A
acre of waters of die United States; or
(0 Permanent.access roads
constructed above grade irf waters of die
United States for a distance of more
than 500 feet.
•Vote 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, llquefiable, or slurry
substances over navigable waters of the
United Slates, which are considered to be
bridges, not utility lines, and-may require a
permit from the U.S. Coast Guard pursuant
to Sectlon-9 of the Rivers apd Harbors Act
of 1899. However, any discharges of dredged
or fill'material associated with such pipelines
will require a Corps permit under Section
40*-
Note 2: Access roads used for both
construction and maintenance may be
authorized, provided they meet the terms and
.conditions of this NWP. Access roads used
solely for construction of the utility line must
be removed upon completion of the work and
the area restored to preconstruction contours,
elevations, and wetland conditions.
Temporary access roads for construction may
be authorized by NWP 33.
Note 3: Where the proposed utility line is
constructed or Installed In navigable waters
of the United States (/.«.. Section 10 waters),
copies of the PCN and NWP verification will
be sent bv thfr Corns to fh*» MattAnai n^eoni/-
and Atmospheric Administration. National
Ocean Service, for charting the utility line to
protect navigation. (Sections 10 and 404)
14. Linear Transportation Crossings.
Activities required for the construction.
expansion, modification, or
improvement of linear transportation
crossings (e.g., highways, railways,
trails, airport runways, and taxiways) 'in
waters of the United States, including
wetlands, provided that the activity
meets the following criteria: • '
a. This NWP is subject to the '
fallowing acreage and linear limits:
(1) For public linear transportation
projects in non-tidal waters, excluding
npn-tidal wetlands adjacent to tidal
waters, provided the,discharge does not
cause the loss-of greater tiian 1 acre of
waters of the United States;
(2) For public linear transportation
projects in tidal waters or non-tidal
wedands adjacent to tidal waters,
provided die discharge does not cause
die loss of greater dian 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, or;
(3) For private linear transportation
projects in all waters of the United
States,tprovided die discharge does not
cause the loss of greater dian '/a acre of
waters of the United States and die
lengdi of fill for the crossing in waters
of die United States does not exceed 200
linear feet; •
'b. The permittee must notify the.
District Engineer in accordance widi
General Condition 13 if any'of die .
following criteria are met: '•
(1) The discharge causes die loss of
greater than 'A acre of waters of the
United States; or
(2) There is a discharge in a special
aquatic site, including wetlands;
c. The notification must include a
mitigation proposal EO offset permanent
lasses of waters of die United States to -
ensure that those losses result only in
minimal adverse-effects to th.eoaquatic
environment and a statement describing
;hpw temporary -losses will be "'
minimized to the maximum extent
practicable;
d. For discharges in special'aquatic
sites, including wedands,-die
notification must include a delineation
of the affected special aquatic sites;
e. The width of the fill is limited to
the minimum necessary for die crossing;
f. This permit does not authorize
stream channelization, and die
•authorized activities must not cause
more than minimal changes to die
hydraulic flow characteristics of the
stream, increase flooding, or cause more
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., die shortest segment of a road with
independent utility that is part of a '
• larger project) has multiple crossings of
streams (seve'ral single and complete
projects) the Corps will consider
whedier it should use its discretionary
audiority to require an individual
permit.
Note: Some discharges for the construction
of farm roads, forest roads, or temporary
roads for moving mining equipment may be
eligible for an exemption from the need for
a Section 404 permit (see 33 CFR 323.4).
(Sections 10 and 404)
27. Stream and Wetland Restoration .
Activities. Activities in waters of the
United States associated widi the
restoration of former waters, the
enhancement of degraded tidal and non- ,
tidal wetlands and riparian areas, the
creation of tidal and non-tidal wetlands
and riparian areas, and the restoration
and enhancement of non-tidal streams
and non-tidal open water areas as
follows:
(a) The activity is conducted on:
(1) Non-Federal public lands and
private lands, in accordance widi die
terms and conditions of a binding
wedand enhancement, restoration, or
creation agreement between die
landowner and die U.S. Fish and
Wildlife Service (F.WS) or the Natural
Resources Conservation Service (NRCS)
or voluntary wedand restoration;
enhancement, and creation actions
documented by die NRCS pursuant to
NRCS regulations; or • '•
(2) Any.Federal land; or
(3) Reclaimed surface coal mined
lands, in accordance widi a Surface
Minihg Control and Reclamation Act
permit issued by the Office of Surface
Mining or die 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, die permittee must notify
die District Engineer in accordance widi
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39361
(c) Only native plant species should
be planted at the site, if permittee is
vegetating the project site.
Activities authorized by this NWP
include, but are not limited to: the
removal of accumulated sediments; the
installation, removal, arid maintenance
vt'small water control structures, dikes,
and berms; the installation of current .
deflectors; the enhancement,
restoration, or creation of riffle and pool.
stream structure; the placement of in-
stream habitat structures; modifications
of the stream bed and/or banks to '
restore or create stream meanders; the °
backfilling of artificial-channels and
drainage ditches; the removal of existing
drainage structures; the construction of
small nesting islands; the construction
of open water areas; activities needed to
reestablish vegetation, including
plowing or discing for seed.bed
preparation; mechanized landclearing to
remove undesirable vegetation; and
odier related activities.
This NWP does not authorize the
conversion of a stream to another
aquatic use, such as the creation of an
impoundment for waterfowl habitat.
This NWP does not authorize stream °
channelization. This NWP does not
authorize the conversion of natural
wetlands to another aquatic use', such as
creation of waterfowl impoundments
where a forested wetland previously
•existed.-However, this NWP authorizes
die 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 die non-tidal
emergent wetland is replaced by
creating that wetland type on the project
site, this NWP does not authorize the
relocation of tftiai waters of the
conversion of tidal waters, including
tidal'wetlands, to other aquatic uses,
such as the conversion of tidal wetlands .
° into open water impoundments.
Reversion. For enhancement,
restoration, and creation projects
conducted under paragraphs (a)(2) and
(a) (4), this NWP does not authorize any
future discharge of dredged or fill
material associated with the reversion of
the area to its prior condition. In such
cases a separate permit would be
required for any reversion. For
restoration, enhancement, and creation
projects conducted under paragraphs
(a)(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
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 die 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 die-landowner and NRCS.or-
FWS (even diough die 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
die 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 die appropriate Federal or State
agency must notify die District Engineer
and include the documentation of die
prior condition. Once an area has
reverted back to its prior physical
condition/ i.t will be subject to whatever
the Corps regulatory requirements will
be at that future date. (Sections ID 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 authoftre the reversion of an area used
for a compensatory mitigation project to its
prior condition. «
39. Residential, .Commercial, and
Institutional Developments. Discharges
into non-tidal waters of the United .
States, excluding non-tidal-wetlands
adjacent to tidal waters, for the
construction or expansion of residential,
commercial, and institutional building
foundations and building pads and
attendant features that are necessary for
die 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
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 buifdings, judicial
buildings, public works buildings, „
libraries, hospitals? and places of
worship. The activities listed above are
authorized, provided that die activities
meet all of the following criteria:
a\ The acreage limit for this NWP is
determined by using the following
index (see Note 1, below): '•
Acreage" limit = «A acre + 2% of the
project area (in acres)
The maximum acreage limit for this
NWP is 3 acres of non-tidal waters,
excluding non-tidal wetlands adjacent'
to tidal waters, this acreage limit is
achieved for a project area of 137.5 acres
or more.
b. The permittee must notify'die
District Engineer in accordance widi
General Condition 13, if any of the .
following criteria are met:
(1) The discharge causes die loss of
greater than !A acre of non-tidal waters *
of die United 'States, excluding non-tidal
wetlands adjacent to tidal waters; or
'(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
high water mark (see Note 2, below).
c. For discharges in special aquatic ' .
sites, including wetlands, die
notification must also include a •''
delineation of affected special aquatic
sites, including wetlands;'
d. The discharge is part of a single
and complete project;
e. The permittee must avoid and
minimize discharges into waters of the •
United^States at the"project site to the
maxirnjum ext.ent 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 die project site.
Compensatory mitigation will normally
be required to offset the losses of waters
of the United States. The notification,
when required, must also include" a
compensatory mitigation proposal for
offsetting unavoidable losses of waters
of the United States. If an applicant .'
believes thafthe project impacts are
minimal without mitigation, dien the
applicant may submit justification
explaining why compensatory
mitigation should not be required for
the District Engineer's consideration;
f. When this NWP is used in
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combined total permanent loss of non-
tidal waters of the United States.
excluding non-tidal wetlands adjacent
to tidal waters, exceeding 'A acre
requires that the permittee notify the
District Engineer in accordance with
General Condition 13:
g Any work authorized by this NVVP
• must not cause more than minimal
degradation of water quality or more
than rrtinimal changes to the flow
characteristics of any stream (see
General Conditions 9-and 21);
h. For discharges causing the loss of
'A 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 follqwing information: (1)
The'name, address, and telephone
number of the permittee; (2) The
location of the work; (3) A description
of the work; (4) The type and acreage (or
linear feet) of the loss.of waters of the
United States (e.g.. Via acre of emergent
wetlands and 50 linear feec of stream
bed); and (5) The type and acreage (or
linear feet) of any compensatory
mitigation used to offset the-loss of
waters of the United States (e.g., 'Ao acre
'of emergent wetlands created on-site);
1. If. there are any open waters or-
streams within, the project area, the
permitte'e will establish and maintain, to
the maximum extent practicable,
wetland or upland vegetated buffers
adjacent to those open waters or streams
consistent with General Condition 19.
Deed restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site; and
j. Stream channelization or stream
relocation downstream of the point on
the stream where the annual average
, flow Is 1 cubic foot per second is not
authorized by this NWP. '
Only residential, commercial, and
institutional activities with structures
on the foundation^) or building pad(s),
as well as the attendant features, are
authorized by th'is NWP. For the ,.
purposes of this NWP, the term "project
area" is defined in the definition section
of the NWPs. The compensatory
mitigation proposal •required in
paragraph (e) of this NWP may be either
conceptual or detailed. The wetland or
upland vegetated buffer required in
paragraph (i) of this NWP will normally
be 50 to 125 feet wide, but the District
Engineer will determine the appropriate
width of the vegetated buffer. T>»
required wetland or upland vegetated
buffer is pan of the overall
previously used for agricultural
purposes and the farm owner/operator
used NWP 40 to authorize activities in
waters of the United States to increase
production or-construct farm buildings,
NWP 39 cannot be used by the
developer to authorize additional
activities in waters of the United States
on the project site in excess of the
indexed acreage limit for NWP 39 (i.e.,
the combined acreage loss authorized
under i^WPs-39 and 40 cannot exceed
the indexed acreage limit based on '
project area in paragraph (a), above).
Subdivisions: Foe any real estate
subdivision created or subdivided after
October 5. 1984, a notification pursuant
to paragraph (b) of this NWP is required'
for any discharge which would cause
the aggregate totarioss of waters of the
United States for the entire subdivision
to exceed 'A acre. Any discharge in any
real estate subdivision which would
cause the aggregate total loss of waters
of the United States In the subdivision
to exceed the indexed acreage limit
based on project area as determined by
paragraph (a) is not authorized by this
NWP; unless the District Engineer
exempts a particular subdivision or
parcel by making a written
determination that: (1) The individual
and cumulative adverse environmental
effects would be minimal and the
property owner had, after October 5,
1984, but prior to July 21, 1999,
committed substantial resources in
reliance on NWP 26 with regard to a
subdivision, in circumstances where it
would be inequitable to frustrate the
property owner's jnvestmentrbacked
expectations, or (2) that the individual
and cumulative adverse environmental
effects would be minimal, high quality
wetlands would not be adversely
affected, and there would be an overall
benefit to the aquatic environment.
Once the exemption is established for a
subdivision, subsequent lot
development by individual property
owners may proceed using NWP 39. .For
the purposes of NWP 39, the term "real .
estate subdivision" shall be interpreted
to include circumstances where a
landowner or developer divides a tract
of land into smaller parcels for the
purpose of selling, conveying,
transferring, leasing, or developing said,.
parcels. This would include the entire
area of a residential, commercial, or
other real estate subdivision, including
all parcels and parts thereof. (Sections
10 and 404)
Note I: For example, if the project area Is
15 acres, the acreage limit for a single and
complete project under this NWP is 0.55
acres of non-tidal waters, excluding norvtldal
wetlands adjacent to tldai waters.
Note 2: Areas where there is no wetland
vegetation are determined by the presence or
absence of an ordinary high water mark or
bed and bank. Areas that are waters of the
United States based on this criteria would
require a PCN even though wata- is
infrequently present in the stream channel.
40. Agricultural Activities. Discharges
of dredged or fill material into non-tidal
waters of the'United States, excluding
non-tidal wetlands adjacent to tidal
waters, .for the purpose of-improving -
agricultural production and the
construction of building pads for farm
buildings. Authorized activities include
the installation, placement, or
construction of drainage tiles, dutches,
or le'vees; mechanized landclearing;
land leveling; the relocation of existing.
serviceable drainage ditches constructed
in waters of the United States: and
similar activities, provided the
permittee complies with the following
terms and conditions:
a. For discharges into non-tidal
wetlands to improve agricultural
production, the following criteria must
be met if the permittee is a USDA .
program participant:
(1) The permittee must obtain an •
exemption or a minimal effects with
mitigation determination from NRCS in
accordance with the provisions of the
Food Security Act (16 U.S.C. 380Let ,
seq.) and the National Food Security Act
Manual (NFSAM); ~~'~'
(2) The discharge into non-tidal
wetlands does not result in the loss of
greater than 2 acres of non-tidal
wetlands on a farm tract;
(3) The discharge into playas, prairie
potholes, and vernal pools does not
exceed the acreage limit as determined
by the following index (see Note,
below): • -•". .. *
Acreage limit = l/io acre* 1% of farm
•tract size'(in acres)
The maximum acreage loss pf playas,
prairie potholes, and vernal pools
authbrized by this'NWP is 1 acre;
• (4) The permittee must have an NRCS-
certified wetland delineation;
(5) The permittee must implement an
NRCS-approved compensatory
mitigation plan that fully offsets
wetland losses; and '
(6) The permittee must submit a
report, within 30 days of completion of
the authorized work, to the' District
Engineer that contains the following
information: (a) The name, address, and
telephone number of the permittee; (b)
The location of the work; (c) A
description of the work; (d) The type
and acreage (or square feet) of the loss
-------
square feet), and location of
compensatory- mitigation (e.g.. J/4 acre of
emergent wetlands on the farm tract); or
b. For discharges into non-tidal
wetlands to improve agricultural
production, the following criteria must
be met if the. permittee is not a USDA
program participant:
(1) The-discharge into non-tidal
wetlands does not result in the loss of
greater than 2 acres of non-tidal
wetlands on a farm tract:
(2)The discharge into playas, prairie
potholes, and vernal pools does not
exceed the acreage limit as determined '
by the following index (see Note,
below):
Acreage limit = Via acre + 1% of farm
tract size (in acres)
The maximum acreage loss of playas,
prairie podioles. and vernal pools
authorized by thi.s NWP is 1 acre; .
(3) The permittee must notify the
. District Engineer in accordance with
General Condition 13, if the discharge
results in the loss of greater than V« acre
of non-tidal wetlands, including playas.
prairie potholes, and vernal pools;
(4) The notification must include a
delineation of affected wetlands; and
, (5) The notification must include a
compensatory mitigation proposal to
offset losses .of waters of the United. - .
States; or »
c. For the construction of building
pads for farm buildings, the discharge
does not cause die loss of greater than
1 acre of non-tidal wetlands that were
in agricultural production prior to
December 23, 1985, (i.e., farmed
wetlands) and the permittee must notify
the District Engineer in accordance with
General Condition 13; or
d. Any activity in odier waters of the
United States is limited to the relocation
of existing serviceable drainage ditches
constructed in non-tidal streams. For '
the relocation of greater than«500 linear
feet of drainage ditches constructed in
non-tidal streams, the permittee must"
notify the District Engineer in ' •
accordance with General Condition 13..
The term "farm tract" refers to a
parcel of land identified by the Farm
Service Agency. The Corps will identify
other waters of the United States oh the
farm tract. For the purposes of'this
NWP, the terms "playas," "prairie
potholes," and "vernal pools" are
defined in the "Definitions" section.
NRCS will determine if a proposed
a-gficultural 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
id) of this N\yE.;USpA;program
participants requesting-authorization for
discharges of dredged
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proconstruction grades or deviace 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 tfalls. bike paths.'horse p.aths,
nature centers, and'campgrounds
'excluding trailer parks). The
construction pr expansion of golf
courses and the expansion of ski areas
may be authorized by this NWP, •
provided the golf course or ski area does
noc substantially deviate from natural • •
landscape contours and is designed to-
mir.,;nize 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
faciflty 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. Scormwater Management
Facilities. Discharges of dredged or fill
material into non-tidal waters of the*
United States, excluding non-tidal
wetlands adjacent to tidal waters, for the
construction and maintenance of • •'
stormwater management facilities,
including activities for the excavation of
stormwater ponds/facilities, detention
basins, and retention basins; installation
and maintenance of water control
structures, outfall structures and
, 'emergency spillways; and the
maintenance dredging of existing
stormwater management ponds/
facilities and detention and retention
basins provided that the activity meets
all of the following.'criteria:
a. The discharge or excavation for the
construction of new stormwater
management facilities does not cause
the loss of greater than 2 acres of non-
tidal waters of die United States,
b. The discharge of dredged or fill
material for the construction of new
stormwater management facilities in
perennial streams is not authorized;
c. For discharges or excavation for the
construction of new stormwater
management facilities or for the
maintenance of existing stormwater
management facilities causing the loss
of greater than 1A acre of non-tidal
waters, excluding non-tidal wetlands
adjacent to tidal waters, or causing the
loss of greater than 500 linear feet of
intermittent stream bed, the permittee
notifies the District Engineer in
accordance with General Condition 13.
In addition, the notification must
include: ' " „
Jil\ A maintenance plan. The
maintenance plan should be in
accordance with State and local
requirements, if arty such requirements
exist;
(2) For discharges in special aquatic
sites, including wedands and
submerged aquatic vegetation, die
notification must include a delineation
of affected areas; and
(3) A compensatory mitigation
proposal diat offsets the loss of waters
of die United States. Maintenance in
constructed areas will not require
mitigation provided such maintenance
is accomplished in designated
maintenance areas and not within
compensatory mitigation'areas (i.e.,
district engineers may designate non-
maintenance areas, normally at the
Odownstream end of die stormwater
management facility, in existing
stormwater management facilities). (No
mitigation will be required for activities °
which are exempt from Section 404
permit requirements);
d. The permittee must avoid and
minimize discharges into waters of the
United States at the, project site to die
maximum extent practicable, and die
notification must include a written
statement to the District Engineer .
detailing compliance widi this
condition (i.e., why die discharge must
occur in waters of die United-States and
why additional minimization cannot be
achieved);
e. The stormwater management
facility must comply widi General
Condition 21 and be designed using best
management practices (BMPs) and
watershed protection techniques.
Examples may include forbays (deeper.
areas at die upstream end of die
stormwater management facility that
would be maintained dirough
excavation), vegetated buffers, and
siting considerations to minimize
adverse effects to aquatic resources.
into the facility design co benefit water
quality and minimize adverse effects to
aquatic resources from storm flows,
especially downstream of the facility.
that provide, to die maximum extent
practicable, for long term aquatic
resource protection and enhancement;
f. Maintenance excavation will be in
accordance widi an approved • *•
maintenance plan and will not exceed
the original contours of the facility as
approved and constructed; and , .«,
g. The discharge is part of'a single and
complete project. (Section 404)
. 44. Mining Activities. Discharges of
dredged or fill ma'terial into: (i) Isolated
waters, streams where die annual •"
average flow is 1 cubic foot per second
(cfs) or less, and'non-tidal wetlands
adjacent to headwater streams, for
aggregate mining (i.e., sand, gravel, and
crushed and broken stone) and
associated support activities; (ii) lower
perennial streams, excluding wedands
adjacent to lower perennial streams, for
aggregate mining activities (support •
activities in lower perennial streams or
adjacent wedands are not authorized by
this NWP); and (iii) isolated waters and
non-tidal wetlands adjacent to
headwater.streams, for hard rock/ r
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 widiin waters of
the United States, plus die acreage loss
of waters of die United States resulting
from support activities, cannot exceed 2
acres;
b. The acreage loss of waters of the
United States resulting from support"
activities cannot exceed one acre;
c. The permittee must avoid and
minimize discharges into waters of die
United States at die project site to die
maximum extent practicable, and the
notification must include a written
statements the District Engineer,
detailing compliance widi diis
condition (i.e., why die discharge must
occur in waters of the United States and _
why additional minimization cannot be'
achieved); . , ' '• •
d. In addition to General Conditions .
IT and 20. activities authorized by this
permit must not substantially alter die.
sediment characteristics qf^areas of
concentrated shellfish beds or fish
spawning areas. Normally, die
mandated wa°ter quality management
plan should address these impacts;
e. The permittee must implement
necessary measures to prevent increases
in stream gradient and water velocities,
to prevent adverse effects (e.g., head
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39365
f. Activities authorized by this permit
must not result in adverse effects on the
course, capacity, or condition of
navigable waters of the United States;
• g. The permittee must utilize
measures to minimize downstream
turbidity;
. h. Wetland impacts must be
comperlsated through mitigation
approved by the Corps;
i. Beneflciation arid~m7neral
processing may not occur within 200.
feet of the ordinary high water mark of
. any open waterhrody. Although the
Corps does not regulate discharges from
these activities, a Clean Water Act
Section 402 permit may be required;
" j: All activities authorized by this "
NWP must carefully adhere to'General.
Conditions 9 and 21. Further, if
determined necessary by the District'' .
Engineer, the Corps may require
modifications to the required water
quality management plan;
k. No aggregate mining can occur
wfthin 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
ordfnary high water marie of a stream"
where the average annual flow is 1
cubic foot per second or less), except for
aggregate mining in" lower perennial "
streams;
1. Single and complete project: The
discharges must be for a single and
complete project, including support
activities. Multiple mining activity
discharges into several designated
parcels of a mining project may be
included together as long as the 2 acre
limit is not exceeded; and •
' ' m. Notification: The permittee must
• notify the District Engineer in
accordance with General Condition 13.
Trie notification must include:' (1) A
description of measures proposed'to
minimize or prevent adverse effects
(e.g.. head cutting, bank erosion,
turbidity, water quality) to waters of the
United States; (2) A written statement to
the District Engineer detailing
compliance with paragraph (c), above
(i.e., why the discharge "must occur in
waters of the United States and why
additional minimization canriofEe
achieved); (3) A description of measures.
• taken to meet the criteria associated
with the discharge being permitted (i.e.,
how the proposed work complies with
paragraphs (d) through (g), above); and
(4) A reclamation plan (for aggregate
Twe'thmds adjacen.t'fo he'acCyaters and
hard rock/mineral mining onlv).
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
" iso lated waters "are defined in 33 C FR
Parts 330,2(d) and (e)b respectively. For
"the purposes of this NWP, the term
"lower perennial streams" is-die same
as die'tower perennial riverine
subsystem described in the Cowardin
classification system of wetlands and
deeowater habitats of die United States.'
(Sections 10'and 404) '
C. Nationwide Permit General •
Conditions
The following general 'conditions ^
must be followed in order for any •
audiorization 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 publfc safety.
3. Soil Erosion and* Sediment
Controls. Appropriate soil erosion and
sedimgnt controls must be used and
maintained Ineffective 'operating
condition during construction, and alf
exposed soil 'arid other fills, as well as
any wdrk 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 die .
movement of those species_of aquatic
life indigenous to the waterbody,
including those species .which normally
migrate through die area, unless die
activity's primary purpose is too
impound water. Culverts placed in
.streams must be installed to maintain \
.low flow conditions. °
5."Equipment. Heavy equipment
working in wetlands must be placed on
mats, or other measures must be taken
to minimize soil disturbance.
6. Regional and Case-By-Case
Conditions. The activity must comply
widi any regional conditions which may
have been added by die division
engineer (see 33 CFR 330.4 (e)) and with
any case specific conditions added by
die Corps or by the State of 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:
Congress as a "study river" for possible
inclusion in che 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 she
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 agprdpriate'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 impairreserved tribal
rights, including, but not .limited to,
reserved water rights and treaty fishing
and hunting rights.
9. Water Quality. In certain States arid
tribal-lands an individual 401 water
quality certification must be obtained or
waived (See 33 CFR 330.4(c)). For NWPs
12, 14, 17, 18, 32,' 39, 40, 42, "43, and 44
where die State or tribal 401
certification (either generically or
individually) does not require/approve a
water quality management plan, the
permittee must include design criteria
„ and techniques that provide for
. protection of aquatic resources. The
project must include a method for '
stormwater'majiagement (whether
required by the State or not) that
minimizes degradation of the
downstream aquatic system, including
water quality. To" the maximum extent
practicable, a vegetated buffer zone
(including wetlands, uplands, or bodi)
adjacent to open waters of the river,
stream, or odier open waterbody will be
established and maintained, if the
project occurs in the vicinity of such an
open waterbody. The^District Engineer
will determine the proper widdi of the
buffer and in which cases it will be :
required. Normally, the vegetated buffer
"will be 50 to -125 feet wide.
10. Coastal Zone Management. In
certain states, an individual state coastal
zone management consistency
concurrence must be obtained or waived
(see Section 330.4(d)).
11. Endangered'Species. (a) No
activity is authorized under any NWP
which is likely to jeopardize the.
continued existence of a threatened or
endangered species or a species
proposed for suck 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
vicinitv of the nroiprt nr l«s Iftrafprl in
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not begin work on the activity until
notified by the District Engineer chat 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 maybe
aff,ected by the proposed work or that
utilize the designated critical habitat'
that may be affected by die proposed
work.
{b) Authorization of an activity by a
nationwide permit does not authorize
the "take" of a direatened 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 Plological 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 locatian 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 dieir world
wide web pages at http'://www.fws.gov/
rSendspp/endspp.htmi and http://
wvvw.nfrhs.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
audiorized, until die DE has complied
with the provisions of 33 CFR Part 325.
Appendix C. The prospective permittee
must notify the District Engineer if die
audiorized activity may affect any
historic properties listed, determined to
be eligible, or which the prospective
permittee.has reason to believe may be
pliglble for listing on die National
Register of Historic Elaces, and shall not
begin die activity until notified by die
District Engineer diat the requirements
of die National Historic Preservation Act
have been satisfied and diat die activity
Is audiorized. Information on die
location and existence of historic
•resources can be obtained from the State
Historic Preservation Office and die
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 die
13. Notification, (a) Timing: Where
required by the terms of the NWP, the
prospective permittee must notify the
District Engineer with a preconstruction
notification (PCN) as early as possible.
The District Engineer must determine if
the notification is complete within 30
days of the-date of receipt and can
request additional information
necessary for the evaluation of the PCN
only once. However, if the prospective
permittee does not provide all of the
- requested information, then die District
Engineer will notify die prospective
permittee that die notification is still
incomplete and die PCN review process
will not commence until all of the
' requested information has been received
by the District Engineer, The
prospective permittee shall not begin
the activity: ;
(1) Until notified in writing by the
District Engineer.diat die activity may
proceed under the NWP with any
special conditions imposed by die
District or Division Engineer; or
(2) If notified in writing by die District
or Division Engineer that an individual
.permit is required; or . .
(3) Unless 45 days have passed from
die District Engineer's receipt of die
complete notification and die
prospective permittee has not received
written notice from the District or
Divisioh Engineer. Subsequently, die
permittee's'right to proceed under the
NWP may be modified, suspended, or
revoked only in accordance widi 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 or die proposed project;
'(3) Brief description of the proposed
project; tba.project's purpose; direct and.
indirect adverse environmental effects
die project would cause;, any odier
NWP(s), regional general permit (s). or
individual permits)' used or inteaded to
be used to audiorize any part of die
proposed project or any related activity;
and " ' . :
• (4) For NWPs 7, 12, 14, 18, 21,'34, 38,
39, 41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wedands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool; complexes (see paragraph
13CO):
(5) For NWP 7, Outfall Structures and
Maintenance, die PCN must include
maintenance dredging or excavation is
proposed.
(6) For NWP 21, Surface Coal Mining
Activities, the PCN must include an
Office of Surface Mining (OSM) or State-
approved mitigation plan.
(7) For NWP 29, Single-Family
Housing, the PCN must also include:
(i) Any past use of this NWP by the
individual permittee and/or the "
permittee's spouse;'
' (ii) A statement that the single-family
housing activity is for a personal
residence of die permittee;
(iii) A description of the entire parcel,
including its size, and a delineation of
wetlands. For die purpose of diis NWP.
parcels of land measuring Vz acre or less
will not require a formal on-site
delineation. However, the applicant
shall provide an indication of where die -
wedands are and the amount of
wetlands that exists on die property. For
parcels greater dian Va acre in size, a
formal wetland delineation must be
prepared in accordance with the current
method required by die Corps. (See
paragraph 13(f));
(iv) A written description of all land
(including, if available,-legal
descriptions) owned by the prospective
permittee and/or the prospective
permittee's spouse, within a one mile
radius of die parcel, in any form of
ownership (including any land owned
as a partner, corporation, joint tenant,
co-tenant, or as a tenant-by-the-endrety)
.and any land pn which a purchase and
sale agreement or other contract for sale
or purchase has been executed;
(8) For NWP 31, Maintenance of
Existing Flood Control Projects, the
prospective permittee must either notify
the District Engineer with a PCN prior
to each maintenance activity or submit '
a five year (or less) maintenance plan-
In addition, die PCN must include all of
the following: • • -
(i) Sufficient baseline information so
as to identify the approved channel
depths and configurations and existing
facilities. Minor deviations are
authorized, provided the.approved flood
control protection or drainage is not
increased;
(ii)'A delineation ofany affected
special aquatic sites, including,
wedands; and,
(iii) Location of die dredged material
disposal site.
(9) For NWP 33, Temporary
Construction, Access, and Dewatering,
die PCN must also include a restoration
plan of reasonable measures to avoid
and minimize adverse effects to aquatic
resources.
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39367
explaining how avoidance and
minimization of losses of waters of the
United States were achieved on the
[ project site and either a compensatory
'. mitigation proposal that offsets
unavoidable losses of waters of the
: ^United States or justification explaining
; "why compensatory mitigation°should
• ': not be required.
(11)-For NWP 40, Agricultural
'• Activities, the PCN must include
. . ' information regarding.the past use of
• this NWP on the farm.'
(12) For NWP 4.3, Stormwater
Management Facilities, the PCN must
include, for the construction of new
i stormwater management facilities, a
, . maintenance plan (in accordance with
: State and local requirements, if
; ' .applicable) and a compensatory
.;' - imiUgatioi^proposal to'offset losses of
waters of the United States.
(13) For NWP 44, Mining Activities,
the PCN must include a description of
. all waters of the United States adversely
'• affected tjy the project, a description of
, measures taken to minimize adverse
; effects to waters of the United State.s, a .
"description of measures taken to comply
j with the criteria of the NWP., and-a
reclamation plan (for all aggregate
i mining activities .except for aggregate
mining activities in lower perennial
. i streams and any hard rock/mineral
; mining activities).
- . ' - (c) Form of Notification: The standard
i individual permit application form
(Foi ;:\ 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)(l)-(7) of
General Condition 13". A letter -
; containing the requisite information
. may also be used.
(d) District Ehgineerfes Decision: In.
• reviewing the PGN for the pro'posed_ ' •
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
v rnmmp-nt^
compliance with the terms and
conditions of the NWPs and the need for
mitigation to reduce the project's
adverse environmental effects to a
minimal level."
For activities requiring notification to
the District Engineer that result in the
loss of greater than 1 acre of waters of-
the United State's, the District Engineer
will, upon receipt of a notification,
provide immediately (e.g., via facsimile
transmission, overnight mail, or other-
expeditious manner), a copy to the
appropriate offices of the Fish and
•Wildlife Service, State natural resource
or water quality agency, EPA. State
Historic-Preservation Officer (SHPO),
and, if appropriate, the National Marine
Fisheries Service. With the exception of
NWP 37, these agencies will then have
10 calendar.days from the date the
material is transmitted to telephone or
fax the District Engineer notice that they
intend to»provide substantive, site-
specific comments. If so contacted by an
agency, the District Engineer will wait
an additional 15 calendar days before
making a decision on the notification.
The District Engineer will fully consider
agency comments received within the
specified time frame, but will provide
no response to the resource agency: The
District Engineer will indicate in the
administrative record associated with
each notification that the resource
agencies' Concerns were considered.
Applicants are encouraged to provide
the Corps multiple copies of
notifications to expedite agency-
notification.
(f) Wetlands Delineations: Wetland
delineations must be prepared in
accordance with the current method
required by the Corps. For NWP 29 see •
paragraph (b) (6) (iii) for parcels less than <
VI/z acre incize. The permittee may ask.
the Corp's to delineate the special
aquatic site. There may. besomedelay-
. 5f the Corps does the delineation. 5 '
Furthermore, the. 45-day period'Will noT".
.start until the wetland aelineation'nas
, been .completed and submitted tb the
Corps, where appropriate.
(g) Mitigation: Factors.that the District
Engineer will consider when
determining the acceptability of
appropriate and practicable mitigation
necessary to offset impacts on the
aquatic environment that are more than
minimal include, but are not limited to:
(i) To be practicable, the mitigation
must be available and capable of being.
done considering costs, existing
technology, and logistics in light of the
overall project purposes. Examples of
mitigation that may be appropriate and
practicable Include, hut ara not limited
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Federal Register/Vol. 64. No. 1397Wednesday, July 21, 1999/Notices
ipland vegecated buffer zones to protect
.iquatic resource values; and replacing
'he toss of aquatic resource values by
."•renting, restoring, enhancing, or
preserving similar functions and values,
preferably in the same watershed;
iu) To the extent appropriate.
permittees should consider mitigation
banking and other appropriate forms of
compensatory mitigation. If die District
Engineer determines that compensatory
mitigation is necessary to offset the,
losses of wafers of the United States and
ensure that die net adverse effects of the
authorized work on the aquatic
environment are minimal, mitigation
banks, in lieu fee programs, and other
consolidated mitigation approaches will'
be the preferred mediod of providing
compensatory.mitigation. unless the
District Engineer determines that
acclvity:specific compensatory _ •
mitigation is morp appropriate, based on
what is best for the aquatic »
environment. These types of mitigation
are preferred because they involve larger
blocks of protected aquatic.
environment, are more likely to meet
the mitigation goals, and are more easily
checked for compliance. If a mitigation
bank, in lieu fee program, or other
consolidated mitigation approach is not
available in the watershed, the District
Engineer will consider other appropriate
forms of compensatory mitigation to
offset the losses of waters of the United
States to ensure that die net adverse
effects of the authorized work on die
aquatic environment are minimal. In
addition, compensatory mitigation must
address wetland impacts, such as
functions and values, and cannot be
:sed to offset the acreage of wetland
josses that would occur in order to meet
the acreage limits of some of die NWPs .
(e,g,, for NWP 14, W«acre of wedands
cannot be created to change a %acre
loss of wetlands to a W acre loss;
however, Vz-acre of created wetlands
can be usedjio reduce die impacts of a
'/a-acre loss of wetlands). If die
prospective permittee Is required to
submit a compensatory mitigation
proposal widi die PCN, the proposal
may be eidier conceptual or detailed.
'(Refer to General Condition 19 for
additional information concerning
mitigation requirements for the NWPs.) .
14. Compliance Certification. Every
permittee who has received a
Nationwide permit verification from die
Corps will submit a signed certification
regarding die completed work and any
required mitigation. The certification
will be forwarded by the Corps widi die
audioriza'^n letter and will include: (a)
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
'he work and mitigation.
15. Use of Multiple Nationwide
Remits. The use of more dian one NWP
for a single and complete project is
prohibited, except when the acreage loss
of waters of the United States "
authorized by die N;WPs does not
exceed die acreage :imit of die-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
audiorized by NWP 13, die maximum
acreage Iqss of waters of die United ,,
S.tates for the total project cannot exceed
Vhacre.
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 die public water
supply intake structures or adjacent
bank stabilization.
• 17. Shellfish Beds. No activity,
including structures and work in •
navigable waters of die United States or
discharges of dredged or fill material,
may occur,in areas of concentrated
shellfish populations, unless die activity
is direcdy related to a shellfish
harvesting activity audiorized-by NWP
4.
18. Suitable Material. No activity,
including structures and work in
navigable waters of the United States or
discharges of dredged or fill material,
may consist of unsuitable material (e.g.,
trash, debris, car bodies, asphalt, etc.) '
and material used for construction or
discharged must be free from toxic "
pollutants in toxic amounts (see Section
• 307 of die Clean Water Act).
19. Mitigation. Activities, including
'' structures and work in navigable waters
of die United States or discharges-of
'dredged or fill material into waters of
the United States, must be minimized or
• avoided to die maximum extent
: practicable at the project site (i.e., on- •
site). Furthermore, die District Engineer..
will require restoradon, creation,
enhancement, or preservation of other
aquatic resources in order to offset die
authorized -impacts, at least to the extent
that adverse environmental^effects to die
aquatic environment are minimal. An
important element of any mitigation .
plan for projects in or near streams or
other open waters is die requirement of
native species and will constitute a
portion, as determined by die District
Engineer, of the required compensatory
mitigation. The District Engineer will
determine the proper widdi of the
vegetated buffer and in which cases it
will be required. Normally, the,
vegetated buffer will-be 50 to 125 feet
wide. (Refer to paragraph (g) of General
Condition 13 for additional information
concerning mitigation"requirements for
the NWPs.)
20. Spawning Areas. Activities,
including structures and work in
navigable waters of the United States or •
discharges of dredged or fill material, in
spawning areas during spawning
seasons must be avoided to the
maximum extent practicable. Activities
that result in the physical destruction
.(e.g., excavate, fill, or smother °, .
• downstream fay substantial turbidity) of.
an important spawning area are'not
Authorized.
21. Management of Water Flows: To
the maximum extent practicable, the
project must be designed to maintain
preconstruction downstream flow
conditions (e.g., location, capacity, and
flow rates). Furthermore, die project
must not permanently restrict or impede
die passage of normal or expected high
flows (unless the primary purpose of the
fill is to impound waters) and die
structure or discharge of dredged or fill
material must withstand expected high
flows. The project must provide, to die
maximum-extent practicable, for
retaining excess flows from the site and
for maintaining surface flow rates from
the site similar to preconstruction
conditions. To the maximum extent
practicable, the authorized work must
not increase water flows from the
project site, relocate°water, or redirect
water flow beyond, preconstruction
conditions, to reduce^adverse effects
such as flooding or erosion downstream
and upstream of the project site. ••
22. Adverse Effects From
Impoundments. If die activity, including
structures and work in navigable waters
of die United States or discharge of
dredged or fill material, creates an
impoundment of water, adverse effects
on die aquatic system caused by die
accelerated passage of water and/or die
restriction of its flow shall be
minimized to die 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
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Federal Register Vol. 64, No. 13,9/Wednesday, July 21. 1999/Notices
39369
entirety and the affected areas returned
ro 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 arid
opportunity' for public comment.
(a) Except as noted below, discharges
of dredged or fill material into wate'rs of
the United States are not- authorized by
•NWPs 7, 12, 14, 16, l'7,:2.1, 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
die United States may be authorized by
the above NWPs in National Wild and
Scenic Rivers if the activity co'mplies
with.General Condition.7. Furthe'r, such
discharges may be authorized in
designated critical habitat for Federally
listed threatened,or endangered species
if°the .activity compHes 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 uncjer these NWPs
only after he determine£-trfat the
impacts to the ^critical resource waters
Will be no more than minimal.
26. Impaired Waters"; Impaired waters
are those waters of-the United States
' • that' have been identified by States or
Tribes through the Clean Water Act
Section 303 (d) process as impaired due
to nutrients, organic enrichment - •• '
resulting in low dissolved oxygen
concentration in the water column,'
. sedimentation and_saltation, habitat
alteration, suspended solids, flow
alteration, turbidity, or the loss of
wedands. For the* purposes of this
general condition, the impaired
waterbody includes any adjacent'
wedands.
(a) Discharges of dredged or fill
marerial causing the loss of more than
United States, including afti
wetlands to such impaired^ waters.
except for activities authorized by NWP
3 in such waters, are not authorized by
nationwide permit.
(b) For discharges of dredged or fill
material causing the loss of less than
one acre of impaired waters of the
United States, including adjacent
wetlands to such impaired waters, or
any activity authorized by NWP 3 in
such waters, it'is presumed that the
project will, unless clearly
demonstrated otherwise, directly or
indirectly result in the further
impairment of die listed water. Such
activities in an impaired water or
adjacent wetlands will be not be
authorized by nationwide permit,' unless
the District Engineer determines that the
prospective permittee has clearly
demonstrated that die audiorized
project will not result in die furdier
impairment of die listed water. For such
discharges, die prospective permittee
must notify the District Engineer in
accordance widi General Condition 13.
In die notification to die District
Engineer, the prospective permittee.
must submit a statement explaining how
the proposed project, excluding
mitigation, will not5 result in furdier
impairment. Also, in accordance widi
the procedures in paragraph (e) of .
General Condition 13, the District.
Engineer will coordinate with the State
0401 agency for NWP activities resulting
in the loss of greater than I/A acre' of =
impaired waters of the United States. In
addition, mitigation for any permitted
discharges in impaired waters or their
adjacent wedands should be designed to
offset impacts to aquatic functions and
values being impacted by the project, as
well as contribute to the reduction of
sources of pollution contributing-to the
impairment (e.g., by restoring wetlands
that intercept non-point sources of
sediment or nutrient laden runoff).
27. Fills Within the 100-year '
Floodplain.-The 100-year floodplain .
will be defined by an up to date Federal
Emergency Management Agency
(FEMA) Flood Insurance Rate Map, or in
1 die absence of such map, the
appropriate local floodplain audiority
through a licensed professional
engineer. •
' (a) Except as provided below, .
discharges of dredged or fill material
into waters of die United States
resulting in permanent above-grade fills
in the 100-year floodplain are not
authorized by NWPs 21, 29, 39, 40. 42,^
43, and 44. Prospective permittees must
notify the District Engineer in
accordance with General Condition 13,
of any discharge of dredged or fill
defined above. The notification must
include documentation that the
proposed project will not involve
discharges of dredged or fill material
into waters of the United States
resulting in permanent, above-grade fills
in waters of die United States within die
FEMA mapped 100-year floodplain. For
those areas where no FEMA map exists
or the map is out of date (e.g.. the map
no longer reflects current flooding
conditions), the documentation should
be ff om the local floodplain authority
(or local official widi audiority to issue
development permits within the
floodplain). Based "on such ^
documentation, the District Engineer .
will make die final determination as to
whedilr the proposed projeqt is actually
located within die 100-year floodplain.
(b) For NWPs 12 arid 14, where there
are .discharges of dredged or fill material •
resulting in permanent, above-grade
wedand fills in waters of die United
States within die 100-year floodp.lain, it
is presumed that such discharges wiU
result in more than minimal adverse
effects. Such discharges are riot
audiorized by NWPs 12, and 14, unless •
die District Engineer determines diat die
prospective permittee has clearly
demonstrated that the project, and
associated'mitigation, will not decrease •
the flood-holding capacity and no more
than minimally alter the hydrology,
flow regime, or volume of-waters
associated with die floodplain.
Prospective permittees attempting to
rebut this.presumption must notify the
District Engineer^in accordance widi
General Condition 13. The notification
must include documentation, which
demonstrates diat the'project will not ._„
result in increased flooding or more
dian minimally alter floodplain
hydrology or flow regimes. This
documentation must include proof that
FEMA. or a state or local floodplain
authority through a licensed
professional engineer, has approved the
pro°posed project and provided a
statement diat the projectMpes not ;' ' .
increase, flooding or more than '. ,-'
minimally alter floodplain hydrology or
flow regimes.
(c) Notwithstanding (a) and (b) above,
projects located in die 100-year
'floodplain at a point in a watershed
which drains less than one square mile
are not subject to'this condition.
D. Further Information
1. District engineers have audiority 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
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39370
Federal
3, NVVPs do not grant any property
rights or exclusive privileges.
4. NVVPs do not authorize any injurv
C0 -th!:.P.i;oPercy or dShts of others.
o. iNVVPs do not authorize interference
with any existing or proposed Federal
project.
£ Definitions
AQuatic bench: Aquatic benches are
those shallqw areas around the edge of
a permanent pool stormwater' <
management facility that support
aquatic vegetation, both submerged and
emergent. . .
Best management practices: Best
Management Practices (BMPs)-are
policies, practices', procedures, or ' •
structures implemer^d to mitigate the
adverse environment! 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 other1 aquatic
p resources for the purpose of
compensating for unavoidable adverse
Impacts which remain after all
appropriate and practicable avoidance
and minimization has been achieved.
. Creation: The establishment of a
wetland or other aquatic resource where
one did not formerly exist.
Drainage ditch: A linear excavation 6r
depression constructed for the purpose
of conveying surface runoff or
groundwater from one area to another.
An "upland drainage ditch" is a
drainage ditch constructed entirely in
uplands (i.e.. not waters of the United
States) and is not a water of the United
States, unless it becomes tidal or
otherwise extends the ordinary high/-
. wateij line of existing waters of the
United States. Drainage ditches ——'
constructed in waters of the United
States (e.g., by excavating wetlands or
stream channelization) remain waters-of
the United States even though they are
heavily manipulated to increase
drainage. A drainage 'ditch may be
constructed in uplands or wetlands or
other waters of the United States.
Enhancement: Activities conducted in
existing wetlands or other aquatic
resources which increase one or more
aquatic functions.
Ephemeral stream: An ephemeral
stream has flowing water only during,
and for a short duration after,
precipitation events in a typical year.
Ephemeral stream beds are located
• .
Groundwater is not a source of water for
rhe stream. Runoff from rainfall is the
primary source of water for stream flow
/•arm tract: A unit of contiguous land'
under one ownership which is operated
as a farm or part of a farm.
Independent utility: A test to
determine what constitutes a single and
complete project in the Corps regulatory
program. A project is considered to have
independent utility if it. would be
' constructed absent the construction of
other projects in the project area
Portions of a multi-phase project that
depend upon other phases of the project
. do not have independent utiHty. Phases
of a project that would be constructed
even if the other phases are not built can
be considered as separate single and
comp lete 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 waterbbdy, 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 N. WP; it is
not a net threshold that is calculated "
after considering compensatory
mitigation that may be used to offset '
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of perennial or intermittent-
stream that is filled or excavafed. Waters
of the United States .temporarily filled,
flooded, excavated, or drained, but
restored to preconstruction contours
and elevations after construction, are
notincluded 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
UnitedoStates) that is not subject to the
ebb and flow of tidal waters. The
definition of a wetland can be found at
33 CFR 328.3(b). Non-tidal wetlands
contiguous to tidal waters are located
landward of the high tide line (i.e
spring high tide line).
precipitation, has standing or (lowing
water for sufficient duration to establish:
an ordinary high water mark. Aquatic
vegetation within the area of standing or
flowing water is non-emergent
vegetated shallows, sparse, or absent
ihis term includes rivers, streams
lakes, and ponds.
Perennial stream: A perennial stream '
has flow.ng water year-round during a '
typical year. The water table is located
above the stream bed for most of the
year. Groundwater is. the primary source
of water for stream flow-Runoff from '
rainfall is a supplemental source of
water for stream flow.
Permanent above-grade ffll: A
discharge of dredged or fill material into -
waters of the United States, including '
wetlands; that results in a substantial
increase in ground elevation and
•permanently converts, part or all of the -
waterbody. to dry land. Structural fills '
authorized by NWPs 3, 25. 36. etc are
not included.
Playa: A type of marsh found on the
high plain of northern Texas and eastern
New Mexico that is characterized by
small, seasonally flooded basins with :
clay or fine sandy loam hydric soils and
emergent .hydrophytic vegetal ion.
Prairie pothole: A type of marsh ' !
found on glacial till in Minnesota. Iowa
North Dakota, South Dakota, and
Montana that is characterized by small
seasonally or permanently flooded
- depressions, and'emergent hydrophytic
vegetation.
Preservation: The protection of
ecologically important wetlands or other
aquatic resources in perpetuity through
the implementation of appropriate legal
and physical mechanisms. Preservation
may include protection of upland areas
adjacent to wetlands as necessary to
ensure protection and/or enhancement
' of the overall aquatic ecosystem.
Project area: The acreage of land?
including waters of the United States •
and uplands, utilized for the single and -
complete project. The acreage is ' .
determined by the amount of land
-cleared, graded, -and/or filled to
construct the single and complete
project, including any buildings,
utilities, stormwater management
facilities, roads, yards,' and other
attendlnt features. The project area also
includes any other land that is used in
conjunction with die single and
complete project, such as open space.
Roads constructed by State or local
governments for general public use are
not included in the project area.
Restoration: Re-establishment of
wetland and/or other aquatic resource
characteristics and functions) at a site
...U_f.-ifel,__J_L___ , * '
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Federal Register/ Vol. 64. No. l|9/Wednesday, July 21. 1999/Notices
39371
; 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
i characteristics. The rapid movement of
; water over a course substrate in riffles
results in a rough flow, a turbulent. "
1 surface, and high dissolved oxygen'
: levels in die water. Pools are deeper
• ° areas associated w-idi riffles. Pools are •
characterized by'a slower stream
: velocity; a streaming flow, a smooth
; surface, and a finer substrate. ° r
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.
i owner/developer or partnership or other
j association of owners/developers (see
definition of independent utility). For
i linear projects, the "single^and complete
; project" (i.e., a single and complete
i crossing) will apply to each crossing of
a separate water of (he United States
(i.e., a single waterbody) at that location.
; An exception is for linear projects <,
crossing a single waterfaody 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, irregularry"-
': -shaped wetland or lake, etc., are-not •
i separate waterbodies.' • - '" •
'; Stormwater management:-Stofmwater
.'• management is the mechanism for
i controlling stormwater rynoff for die
: purposes of reducing downstream :
j erosion, water quality degradation, and
flooding and mitigating thVadverse
effects of changes;,in land 'use on die
aquatic environment.
Stormwater management facilities:
Stormwater management facilities are
diose facilities, including but not
limited to,.Stormwater retention and
detention ponds and BMPs, which
retain water for a period of time to
contr.o'l runoff and/or improve die
quality (i.e.. by reducing die
concentration of nutrients,-sediments, ',
hazardous substances and odier . .
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 bojulders. Wedands
" contiguous wthe stream.bed, but
outside of die ordinary high water
marks, are not.considered part of the
stream bed. "''...
Stream channelization: The
manipulation of a stream channel to
• increase die rate of water flow through
die stream channel. Manipulation may
include deepening, widening,
straightening, armoring, or odier
activities diat change die stream cross-
section or odier aspects of stream
channel geometry to increase die, rate of
water flow dirough,die stream.channel.
A channelized stream remains a water' .
•of die United States, despite die
modifications to increase die rate of
water flow. . . .
Tidal wetland: A tidal wetland is a
wedand (i.e.,.a water of die United
States) diat is inundated by tidal waters.
The-definitions of a wetland and tidal
waters can be found at 33 CFR 328.3 (b)
-.anc 33 CFR 328.3(0. respectively. Tidal
waters rise and fall in a predictable and
measurable rhythm or cycle due to die
gravitational, pulls of the moon and sun.
Tidal waters end where die rise and fall
of die water surface can no longer be
practically measured in a predictable
rhythm due to masking by other waters,
wind, or other effects. Tidal wetlands
.are located'channelward of die high tide
line (i.e., spring high tide line) and are
inundated by tidal waters two times per
lunar month, during spring high tides.
Vegetated shallows: Vegetated
shallows are special aquatic sites under
die 404(b)(l) Guidelines. They are areas
diat are permanently inundated and
under normal circumstances have '
, rooted aquatic vegetation, such as
seagrasses in marine arid estuarine .
systems and a variety of vascular rooted
plants in freshwater systems.
Vernal pool: A type of mars-h found in"
Mediterranean-type climates (/.e.,.wet 'g
winters and dry summers), especially.on •
coastal terraces in soudiwestem'
California, die central valley of
California, and areas west of die Sierra
Mountains, diat is characterized'-by
shallow, seasonally flooded we,t
meadows widi emergent hydrophytic
vegetation.
^•Waterbody: A waterbody is any area
diat in a normal year has^wate'r flowing
or standing above ground to die extent
diat e.. Jence of-an ordinary high water
mark is established. Wetlands •
contiguous to die waterbody are
considered part of the waterbody. •
[FR Doc. 99-18292 Filed 7-20-99; 8:45 ami
BILLING CODE 3710-92-P
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