Final Notice of Issuance, Reissuance, and Modification of Nationwide Permits

SUMMARY: The Corps of Engineers is reissuing the existing nationwide

permits (NWP) and conditions, some with modifications, and issuing two

new NWPs. As with all general permits, NWPs include specific project

limitations which ensure that adverse effects will be no more than

minimal and that the aquatic environment will be protected. At the same

time, if a permit applicant can design a project in a way that meets

the limitations of the NWP, the Corps will provide an expedited review

and decision for the project. General permits, including NWPs, are an

essential part of the Corps regulatory program, and provide us with the

method we use to authorize 80% of the activities we regulate. An

effective NWP program is essential to administration of the Corps

regulatory program. The Corps, however, is increasingly aware of the

concerns regarding the level of adverse effects being authorized by

NWPs, particularly NWP 26. As a result, we have taken a critical look

at the NWP program to better ensure that projects that truly have

minimal impacts will continue to be authorized, while ensuring that

only minimal individual and cumulative adverse effects will result from

the Corps authorizing projects under the program. For example, we have

made substantial changes to NWP 26, with an ultimate approach of more

clearly defining the activities regulated through activity-specific

replacement general permits. The interim changes to NWP 26 we have made

will greatly increase environmental protection while increasing the

review time for a relatively small percentage of the total number of

activities authorized each year. We have also become increasingly aware

of the concerns that NWPs, particularly NWP 26, need to be modified to

reflect regional differences in aquatic ecosystem functions and values

and to more effectively reflect the desire of the states to develop

partnerships to protect the aquatic environment. We, therefore, have

directed our districts to carefully review all of the NWPs,

particularly NWP 26, to revoke applicable NWPs in high value aquatic

ecosystems, and to add regional conditions to limit the applicability

of the NWPs to ensure that no more than minimal adverse effects occur

in each district. We are also directing the districts to work with the

states to develop mutually agreeable conditions that will result in a

greater level of state Section 401 water quality certifications being

issued for the NWPs. We are directing our districts to develop local

procedures with their counterparts in the U.S. Fish and Wildlife

Service and National Marine Fisheries Service which will ensure that

the Corps bases its ``affect'' and ``jeopardy'' decisions on the best

available information. We are also initiating formal programmatic

consultation under section 7 of the Endangered Species Act regarding

the procedures associated with administering the NWP program. We

believe that the changes described above, along with many others we

have included in this reissuance of the NWPs, will substantially

increase protection of the aquatic environment, ensure that no more

than minimal adverse effects will occur, and maintain the regulatory

flexibility necessary to administer a reasonable regulatory program.

EFFECTIVE DATE: February 11, 1997.

ADDRESS: Information can be obtained by writing to: Office of the Chief

of Engineers, ATTN: CECW-OR, 20 Massachusetts Avenue NW., Washington,

DC 20314-1000.

FOR FURTHER INFORMATION: Contact Mr. Sam Collinson or Mr. John Studt,

at (202) 761-0199 or access the U.S. Army Corps of Engineers Regulatory

Home Page at: http//:wetland.usace.mil/

SUPPLEMENTARY INFORMATION:

Background

The White House Office on Environmental Policy announced the

President's Wetlands Plan on August 24, 1993. The plan sets forth a

comprehensive package of improvements to Federal wetlands protection

programs. A major goal of the plan is that the programs be fair,

flexible, and effective. To achieve this goal, the Corps regulatory

program must continue to provide effective protection for wetlands and

other aquatic resources, while conveying to the public a clear

understanding of regulatory requirements. In its implementation, the

regulatory program must be administratively efficient, flexible yet

predictable, and avoid unnecessary impacts to private property, the

regulated public, and the environment.

There were 37 existing nationwide permits. Thirty-six of the NWPs

were published in the November 22, 1991, Federal Register (FR) at 33

CFR part 330, appendix A (56 FR 59110). They became effective on

January 21, 1992, and expire on January 21, 1997. One additional NWP,

the Single-Family Housing NWP (NWP 29), was proposed in the Federal

Register on July 27, 1995, (60 FR 38650) and became effective on

September 25, 1995. NWP 29 would expire on September 25, 2000.

In the preamble of the Final Rule at 33 CFR part 330, as published

in the Federal Register (56 FR 59110) on November 22, 1991, we

indicated that upon expiration of the existing NWPs, we would issue the

NWPs separately from the regulations governing their use and rescind 33

CFR part 330, appendix A. The NWPs will now be published using the

procedures adopted on November 22, 1991, for issuance, re-issuance,

modification, and revocation of NWPs (see 33 CFR 330.5). The NWPs will

no longer appear in the Code of Federal Regulations (CFR) but will be

published in the Federal Register and announced, with regional

conditions, in the public notices issued by Corps district offices, and

included on the Internet.

We are reissuing all the existing NWPs; however, several have been

modified, as have several NWP conditions as published in the Federal

Register (56 FR 59110) on November 22, 1991. Many of the proposed

clarifications are a result of the modification of the definition of

``discharge of dredged material'' at 33 CFR 323.2(d), as published in

the Federal Register (58 FR 45008) on August 25, 1993 (i.e., the

excavation rule). The definition was revised to include the following

language that clarified which excavation activities are regulated:

``(iii) Any addition, including any redeposit, of dredged material,

including excavated material, into waters of the United States which is

incidental to any activity, including mechanized landclearing,

ditching, channelization, or other excavation'' (See 33 CFR 323.2(d)

for the complete definition of ``discharge of dredged material'').

We are also issuing, in accordance with the President's Wetlands

Plan, two new NWPs to authorize those additional regulated activities

with minimal adverse effects that resulted from the excavation rule.

These new NWPs include: NWP 30, Moist Soil Management for Wildlife; and

NWP 31, Maintenance of Existing Flood Control Projects.

The Corps believes that, when the changes to the nationwide permits

and their conditions are considered as a whole, the average approval

time for

[[Page 65875]]

projects requiring a Department of the Army permit will not

substantially change. However, the individual approval time for some

projects will be longer while for others it may be shorter. In

addition, we believe that the approval time for a vast majority of

activities authorized by nationwide permits will not be affected by

these changes.

We have made a final determination that this action does not

constitute a major Federal action significantly affecting the quality

of the human environment. Environmental documentation and a Finding of

No Significant Impact (FONSI) have been prepared for each NWP. This

documentation includes an environmental assessment and, where relevant,

a section 404(b)(1) Guidelines compliance review. Copies of these

documents are available for inspection at the office of the Chief of

Engineers, at each Corps district office, and on the Corps Home Page at

http://wetland.usace.mil/. Based on these documents the Corps has

determined that the proposed NWPs comply with the requirements for

issuance under general permit authority.

The 36 nationwide permits issued or reissued effective January 21,

1991 will expire on January 21, 1997; however, all of these permits are

being reissued with an effective date of February 11, 1997. There will

be a period between January 21, 1997 and February 11, 1997 where these

36 NWPs will not be in effect. Between today and February 11, 1997 the

permittee may submit Pre-construction Notifications (PCNs) required by

the terms of certain NWPs, in accordance with the NWP ``Notification''

General Condition. However, the 30 day (45 day for NWP 26) time period

in the notification condition will not start until February 11, 1997.

Further, Corps districts will review PCNs during this period and will

verify projects as soon as possible after February 11, 1997. Nationwide

Permit 29, Single Family Housing, is revoked and reissued with new

conditions on the same effective date, February 11, 1997, and

therefore, there will not be a period of time where NWP 29 is not in

effect. Permittees may submit PCNs at any time, however, the 30 day

time period for the reissued NWP 29 will not start until February 11,

1997. In addition, two new nationwide permits, NWP 30 and 31, are being

issued with the same effective date. All of the issued and reissued

nationwide permits, with the exception of NWP 26, will expire in 5

years on February 11, 2002 unless otherwise modified, reissued or

revoked. Nationwide Permit 26 will automatically expire 2 years from

today's date unless otherwise modified or revoked.

Many of the nationwide permits have been modified in the course of

reissuance. The continued adequacy of an authorization under a

nationwide permit, following its expiration, is dependant upon whether

that permit has been reissued with or without modification. A

nationwide permit is considered to have been modified if either the

permit scope or limitations have been modified, or if one of the

nationwide permit conditions which applies directly to the activity has

been modified. In those cases where the nationwide permit is being

reissued without change, and General Condition 4 does not directly

apply, the verification remains valid as issued. In those cases where

the previously used nationwide permit is being reissued with

modification (NWPs 6, 12, 14, 21, 26, 27, 32) or General Condition 4

directly applies to the activity, activities which commence (i.e.,

under construction, or are under contract to commence) in reliance upon

the earlier NWP, prior to January 21, 1997, will remain authorized

provided the activity is completed prior to January 21, 1998, unless

discretionary authority has been exercised on a case-by-case basis to

modify, suspend, or revoke the authorization in accordance with 33 CFR

330.4(e) and 33 CFR 330.5 (c) or (d). Activities completed under the

authorization of a nationwide permit that was in effect at the time the

activity was completed continue to be authorized by that nationwide

permit. DE's will, in accordance with 33 CFR 330.6(a), provide

applicants with the above information in their responses to requests

for verification of compliance with nationwide permits. These

procedures are specified in 33 CFR 330.6(b).

Discussion of Public Comments and Changes

I. Overview

Approximately 4,000 comment documents addressing the proposed

nationwide permits were received in response to the June 17, 1996,

Federal Register announcement (61 FR 30780), district public notices,

one national public hearing, and 6 regional public hearings. The Corps

has reviewed and considered all the comments. Many of the comments

expressed support for the nationwide permit program while many others

opposed the program. Most comment letters provided permit specific

comments, providing information and recommending changes to both the

permits and permit conditions. A few commenters provided comments

specific to 33 CFR part 330, our regulations governing implementation

of the nationwide permit program. These comments were also reviewed and

have been made a part of the record. However, no changes have been

proposed for 33 CFR part 330 and, therefore, it is not being revised at

this time.

II. General Comments

Regionalization of Nationwide Permits

The Corps proposed a process to regionalize the nationwide permits,

particularly NWP 26, in order to reflect the differences in aquatic

ecosystem functions and values that exist across the country. We

envisioned a process where we would solicit the views of the various

stakeholders regarding the nationwide permits and develop region-

specific approaches for each district to best protect the environment

while providing fair, reasonable, and timely decisions for the

regulated public. The final permits we are issuing today reflect a

clear decision to proceed in a way that does regionalize the program,

particularly NWP 26. We are issuing NWP 26 for an interim period of two

years, during which we will gather interested parties at the national

level as well as the district and division levels, to develop

replacement permits for NWP 26. The replacement permits will be

activity-specific rather than the geographic based approach of NWP 26.

By developing activity-specific NWPs to replace the existing NWP 26, we

will be able to more clearly and effectively address the potential

impacts to the aquatic environment, as well as more effectively address

specific applicant group needs.

Once the Corps establishes activity-specific replacement permits

that have clear national conditions to ensure the aquatic environment

is protected and the impacts will be no more than minimal, each

district, working with the Corps divisions, will establish regional

conditions for the activity specific replacement permits. This may

result in the revocation of certain NWPs in aquatic environments of

particularly high value, and the addition of regional limitations to

specifically address needs for protection of specific environmental

assets. Of course, we will continue to encourage all districts to

develop programmatic general permits (PGP) with states and other

regional authorities that effectively regulate the waters of the United

States. When such permits are developed and issued, it is often

appropriate for the Corps district

[[Page 65876]]

to revoke the nationwide permits in the area covered by the (PGP),

provided the PGP provides at least the level of protection of the

aquatic environment that the Corps does through its administration of

the NWP program.

During the next two years, as the Corps develops the activity-

specific replacement permits, the revised NWP 26 will be in effect. We

have substantially changed NWP 26, with additional nationwide

limitations and conditions, in order to provide substantially improved

protection of the aquatic environment, and to ensure that only minimal

adverse effects will result from use of the NWP. These additional

limitations and conditions are discussed in detail in the preamble for

NWP 26 below, as are the specific means by which we have directed the

districts and divisions to regionalize NWP 26. In summary, we have

directed our districts working with the divisions and Federal and state

natural resource agencies to add region-specific conditions to all

NWPs, paying particular attention to NWP 26, which will add an

additional layer of protection to the changes we have put into place at

the national level. This process will also involve public notice and

comment to ensure that all interested parties have the opportunity to

be involved in the process.

Reissuance Process

A few commenters also commented on the process we used for

reissuance of the NWPs. One commenter felt that the Corps should have

requested comments and suggestions from the public prior to issuance of

the proposed nationwide permits. A few expressed concern that the Corps

Special Public Notices, announcing the proposed nationwide permits and

requesting comments, did not include sufficient information to generate

meaningful comment by the public. These commenters felt that the public

notices should have included such information as: The text of all

nationwide permits proposed for reissuance, legal and biological

justification for reissuance, the location of records regarding use and

impacts of the nationwide permits, potential additional impacts due to

reissuance or modification of the permits, the extent and effectiveness

of existing mitigation permit conditions, the effect of the proposed

changes in the permits, and the possible benefits to the nation of

eliminating specific NWPs. These commenters also felt that the comment

period was not adequate for so many permits at one time and recommended

the Corps publish individual public notices for each permit, three per

month, with 90 day review periods for each public notice.

The Corps believes that the process provided adequate information

and time for public review and comment. We provided concise information

regarding the proposed revisions to the nationwide permits and included

the names, addresses and phone numbers of points of contact for

requesting additional information. To include the information requested

by a few reviewers as outlined above was not considered to be

productive and the publication would be too voluminous and costly for

publication and distribution to the general public. Information

requests received during the review period were given priority and

information was provided in as timely a manner as was possible. We

extended the original 45 day review period by 14 days and added 6

regional public hearings to the originally scheduled hearing in

Washington, D.C., in order to provide as much opportunity for the

public to comment as was reasonable. In response we received

approximately 4,000 letters of comment, and most of the public hearings

were well attended. The Corps also believes it is much more efficient

and less burdensome on all parties involved to collectively review all

the nationwide permits at one time. To publish three notices a month

for 90 days each would require more than a year to address all 39 NWPs

and place a continuous review burden on the commenting public for the

entire period. Such a process would also result in significant

inefficiencies in the utilization of Corps limited resources for

implementing the program.

Accounting

A substantial number of commenters stated that the Corps of

Engineers should establish a system of record keeping to quantify

impacts and mitigation, and that such records would be necessary to

document that the nationwide permits have only minimal adverse

environmental effects. Many commenters stated that the acreage lost due

to nationwide permits is not known and the Corps cannot support a

conclusion that the effects of the nationwide permits are not

significant. A number of commenters stated that reporting should be

required for all nationwide permits while others called for reporting

for any permit which might have more than minimal impact. Comments

indicated that, at a minimum, data reported should include the location

and size of any wetlands, and should be collected by activity,

nationwide permit number and acreage for each aquatic type. A large

number of commenters asked that the records be published quarterly or

annually and one suggested they be made available on the Internet.

The Corps has collected and reviewed specific data to assist in

making program-wide determinations and decisions regarding the NWP

program. While we believe that the data currently being collected for

most nationwide permits is sufficient for these purposes, we are

increasing the information we will regularly collect in the future. In

particular, we are making changes to NWP 26 that will substantially

increase the data base regarding that permit. Many districts also

collect additional data relative to the use of nationwide permits for

use in regionally conditioning the nationwide permits and evaluating

specific actions on a case-by-case basis. We do not have the resources

necessary for field verification of all nationwide authorizations and

associated mitigation efforts. While we do not believe it is necessary

to publish periodic reports regarding the nationwide permit program,

information and data collected is available for public review upon

request. Each district does periodically publish a ``Permits Issued and

Denied'' report which is currently sent to standard mailing lists. The

Corps is planning to provide access to such information and data via

the Internet.

Enforcement

Most of those who commented on the enforcement of nationwide

permits expressed the belief that the Corps has not enforced permit

conditions or verified that projects are eligible for the nationwide

permit issued. One commenter stated that lax enforcement gives

violators an economic advantage over those who comply with the law.

Commenters stated that the Corps must develop a system to monitor

activities, verify applicant information, and enforce conditions.

Several comments suggested conducting random inspections and penalizing

violators. Other proposals included recommendations that we develop a

process to allow citizens to petition the Corps to address a situation

where conditions are not being met, or to allow citizens to sue the

Corps to enforce conditions.

The Corps has limited human resources to manage the entire

Regulatory Program. Since properly developed and coordinated nationwide

permits have minimal individual or cumulative adverse effects, we

direct the majority of our efforts to projects with a greater potential

for impact to the environment. Every application

[[Page 65877]]

received is reviewed and a determination is made whether the project is

authorized by an existing general permit or requires a standard

individual permit (IP) evaluation process. The Corps does inspect a

selected number of permitted activities, including nationwide permit

activities, each year to encourage and verify compliance with all terms

and conditions of the permit (individual or general). The Corps does

follow up on reports of alleged violations of the Clean Water Act (CWA)

and/or the Rivers and Harbors Act of 1899 (RHA) and pursues resolution

of those actions. The Corps currently accepts and investigates

suspected violations reported by citizens. Furthermore, each district

has an enforcement program and administers it in a manner to provide

the most effective compliance with the CWA, to include spot checks,

monitoring, reporting, etc.

Notwithstanding the above, we agree that we need to do more to

ensure compliance. Therefore, the Corps is, with the reissuance of the

NWPs, instituting a program that will require every verified permittee

to certify, in writing, that they constructed the project in accordance

with the permitted plans, including any mitigation. The Corps is

reviewing its enforcement and compliance program to determine if

additional guidance is necessary.

Stacking of NWPs

Many commenters indicated that the use of multiple NWPs for a

single project (a practice referred to as ``stacking'') should be

eliminated or restricted because it allows opportunity for greater than

minimal adverse effects to result under nationwide permit

authorizations.

The purpose of the NWP program is to authorize activities that

cause only minimal individual and cumulative adverse environmental

effects with a minimum of administrative processing. While being

responsive to applicants and protective of the aquatic environment are

considerations that must be balanced, the Corps understands fully that

the statutory threshold of ``minimal adverse effects'' is controlling,

whether the action involves the use of one or more NWP. We believe

that, under certain circumstances, NWPs can be used in combination and

result in only minimal individual and cumulative adverse environmental

effects. In this regard, our regulations provide for multiple use of

NWPs (but each one only once for a single and complete project)

provided that the combined adverse effects are minimal. If an activity,

otherwise eligible for a nationwide permit, is an integral part of a

project for which a standard individual permit is required, it cannot

be authorized by an NWP. Most combinations of NWPs allowing discharges

of dredged or fill material in waters of the United States (including

wetlands and other special aquatic sites), require a PCN to the

District Engineer (DE). The PCN process requires the District Engineer

to determine whether the activity or combination of activities will

result in more than minimal individual or cumulative adverse

environmental effects. With this notice we are directing all District

Engineers to conduct very critical reviews of projects involving

stacking to ensure that no more than minimal adverse effects will

occur.

While the Corps allows, under certain specific circumstances, the

multiple use of NWPs for single and complete projects, many NWPs are

generally ``stand alone'' project authorizations (e.g., NWP 21 would

authorize all activities associated with the project) without the need

for other NWPs. Some other NWPs, while they are occasionally used with

other NWPs, generally are not (e.g., NWP 28 for modification of an

existing marina is mostly used alone); however, occasionally it may be

used with NWP 3 for repair of an existing structure or with NWP 13 for

some bank stabilization. Generally, only 7 of the 37 NWPs are used more

than occasionally with certain other NWPs for authorizing projects.

These 7 NWPs are 3, 12, 13, 18, 19, 26, and 33. We believe that of

those 7 NWPs, those with the potential to have more than minimal

impacts, when used with certain other NWPs, are NWPs 18 and 26 in

combination with each other and with NWPs 14 and 29. Consequently, to

ensure that the multiple use of nationwide permits does not result in

more than minimal adverse effects, the Corps will restrict the multiple

use (i.e., stacking of those nationwide permits) as follows. NWP 14 has

been modified so that it cannot be combined with NWP 18 or NWP 26 for

the purpose of extending the limitations of any of the three permits.

For example, NWPs 14 and 26 cannot be combined to authorize a fill of

3\1/3\ acres. Furthermore, NWP 18 cannot be combined with NWP 26 to

increase the threshold or the limitations of NWP 26. NWP 29 is already

conditioned that it cannot be used in conjunction with NWP 14, NWP 18,

or NWP 26. We have also limited the impacts allowed when stacking any

NWP with NWP 26 or NWP 29. Whenever any other NWP is used in

conjunction with NWP 26, the total acreage of impacts to waters of the

United States, for all NWPs combined, cannot exceed 3 acres. Similarly,

whenever any other NWP is used in conjunction with NWP 29, the total

acreage of impacts to the waters of the United States, for all NWPs

combined, cannot exceed \1/2\ acre. We believe that these limitations

will eliminate abuse of stacking while allowing appropriate multiple

use of some nationwide permits. For example, the Corps could authorize

a 0.3 acre road crossing to a 2.5 acre NWP 26 fill project, with

appropriate avoidance and mitigation.

Finally, we have added General Condition 15 ``Multiple Use of

Nationwide Permits'' that requires a Corps-only PCN in any case where

any NWP 12 through 40 is combined with any other NWP 12 through 40 for

a single and complete project. For example, if an applicant wishes to

combine the use of NWP 14 for a road that does not involve fill in

wetlands and NWP 13 for a bulkhead less than 500 feet in length, a

Corps-only notification will be required; even though, the use of these

NWPs for the projects described do not require a PCN if constructed

independently. However, the change noted above will ensure that for

combinations that have the potential to result in more than minimal

adverse environmental effects, a Corps-only PCN will be required.

State Section 401 Water Quality Certification

Many commenters expressed opposition to the Corps practice of

issuing provisional verifications of authorization under nationwide

permits for which section 401 water quality certifications have been

denied by the state. They expressed the belief that it put undue

pressure on the states to certify the projects. Some also commented

that it was unfair to require the states to issue, deny, or waive water

quality certification within 60 days of receipt of an individual

request for certification. Some felt that if a state denied water

quality certification for a nationwide permit, the Corps should not

authorize any projects under that particular NWP and that the projects

should be evaluated under the individual permit procedures. Others

believed that administration of sections 401 and 404 should be merged

for NWP 26.

It is important to emphasize at the outset that it is the intent of

the Corps to work closely with states and Tribes (or EPA where

appropriate) during the next 60 days to facilitate State 401 Water

Quality Certification. The Corps is committing to meet with the states

[[Page 65878]]

and Tribes at the District level, with the goal of ensuring that

issuance of each of the NWPs in today's package is consistent with

Water Quality Standards established by the states, Tribes, and EPA.

This process will include discussion and incorporation of appropriate

terms and conditions that would ensure consistency with state/Tribal

Water Quality Standards.

We believe that the procedures in 33 CFR part 330 regarding state

401 water quality certification are appropriate and provide a

reasonable approach for the state to ensure their water quality

standards will be met. Moreover, we believe denial of a 401 water

quality certification for a nationwide permit should not be the sole

basis for requiring an individual permit application for activities

that would otherwise comply with the terms and conditions of that

nationwide permit. Denial of state water quality certification for a

nationwide permit does not necessarily mean that unacceptable adverse

environmental effects will occur on a case-by-case basis. Rather, it

indicates that the state is not confident that state standards will be

met in all cases. It follows then that, based on the state's denial,

the Corps denies authorization, without prejudice, for those activities

for which the state denied section 401 water quality certification.

Those activities cannot proceed under an NWP or an IP unless the state

subsequently issues or waives a water quality certification for that

activity. Thus, when the state determines that state standards are met

in a specific case (i.e., an individual 401 water quality certification

is issued or is waived), the nationwide permit authorization should be

available to the prospective permittee. Finally, this approach is based

on our desire to develop effective partnerships with states where

workload is shared, regulatory duplication is reduced, and neither the

Corps nor the states determine how the other party discharges its

regulatory responsibilities.

Given the concern regarding the potential water quality impacts of

NWP 26, the Corps will also provide an additional opportunity for

review for this NWP. In those circumstances where a state has denied

section 401 water quality certification for activities between 1/3 and

one acre, EPA may request that the Corps provide EPA with PCNs for

those proposed activities in the state. Specifically, if the Regional

Administrator requests PCNs in those states that have denied water

quality certification, the Corps will provide PCNs to EPA consistent

with the notification general condition. EPA will work with the other

Federal resource agencies to determine which PCNs they wish to receive,

and will forward them as appropriate. We anticipate that in most states

the agencies will not be receiving PCNs for discharges between 1/3 and

one acre because of the Corps commitment to work with the states to

ensure, to the best of our ability, that Section 401 water quality

certification will be granted.

Several commenters stated that the Corps ought to prevent the

states from requiring verification of authorization from the Corps

under section 404 prior to receiving 401 certification or waiver

thereof. Other commenters stated that the Corps should limit the

states' review under section 401 to only 21 days. The Corps believes it

would be inappropriate for us to instruct the states on implementation

of their responsibilities under section 401, but rather we will work

with the states to resolve concerns regarding impacts to the Nation's

waters and implementation of our respective regulatory programs on a

programmatic basis. This will include discussions between the states

and the Corps on a reasonable period of time for the states to act on

an individual Section 401 water quality certification.

One commenter recommended an additional general condition requiring

that projects otherwise eligible for nationwide permits also be

consistent with the requirements of section 303 of the Clean Water Act.

The states, as part of their review and evaluation under section 401 of

the Clean Water Act, are responsible for ensuring compliance with

several sections of the Clean Water Act, including section 303.

Therefore, we have proposed no changes for this provision.

Publication of the Nationwide Permits in the CFR

Many commenters were opposed to publishing the NWPs only in the

Federal Register (FR) and suggested that they be published in both the

Code of Federal Regulations (CFR) and FR. Many indicated that using the

CFR is easier and more accessible and that the FR would make it more

difficult and even a burden for the public to obtain a full list of

available NWPs. One commenter stated that the Corps failed to provide

an explanation of why it proposes to publish the NWPs only in the FR.

One comment indicated that most county and university law libraries

have the CFR, but not back issues of the FR; that only libraries with

Federal document depositories have FRs and very few carry back issues.

One commenter pointed out that although FRs are found on databases or

CD Rom (e.g., Environmental Law Reporters) they usually have only the

prior year on database. Therefore, they would have no access until the

nationwide permits are over one year old.

One commenter requested that the final announcement include a

summary of nationwide permits valid in each state to provide those who

work in multiple states with a ``one-stop reference'' of potential

nationwide permits.

The final nationwide permits have not been included in the CFR and

are being published herein, following procedures similar to those for

individual permits and regional general permits, because NWPs are

permits, not regulations, and therefore, are not appropriate for

publication in the Code of Federal Regulations. While publication in

the CFR would provide a ready reference, publication of the final

decisions on the nationwide permits are announced in the Federal

Register and will also be published through regional public notices

issued by District Engineers. Moreover, publication of the nationwide

permits in the CFR does not provide an accurate representation of the

nationwide permits for any particular area. Such CFR publication would

not include the state 401 position nor regional conditions imposed by

the local Corps district and division offices. Furthermore, the CFR is

only published once a year. Therefore, the reissued NWPs would not be

published until July 1997. In addition, it is our intention to ensure

that all of the pertinent statutes, regulations and other guidance, as

well as the nationwide permits including district regional conditions,

be made available on the Internet in the near future.

Compliance With the National Environmental Policy Act

Numerous commenters stated that issuance of the NWPs in their

proposed form would constitute a major Federal action which would have

a significant effect on the human environment, thus requiring

preparation of an Environmental Impact Statement (EIS) under the

National Environmental Policy Act (NEPA). Numerous commenters also

contended that the Corps decision documents are inadequate, do not

provide enough information, and are based on insufficient data to

appropriately evaluate the impacts of the NWPs. Many of the comments

received indicated the Corps should prepare an EIS to ensure that

adverse effects are minimal. One commenter added that, at a minimum, an

EIS should be prepared for NWPs 26

[[Page 65879]]

and 29. Other commenters listed the following NWPs as needing an EIS:

NWPs 12, 13, 14, 21, 34, and 40.

Several commenters requested that the Corps prepare a cumulative

impact analysis now and make it part of an EIS. Several different

commenters provided the following estimates of cumulative impacts

occurring under the existing NWP program as acres of wetlands lost:

70,000 acres per year; 82,000 acres from 1988 to 1996 nationwide from

27 of the 36 Corps districts and only from NWPs that were reported to

the Corps (included in this figure was an estimate of 4,333 acres of

vernal pools lost in California); in 1994 more than 90,000 wetland

filling activities proceeded under Corps general permits; nearly one-

half million activities; the sum of the small, 0.5-acre, wet areas,

like the prairie potholes and vernal pools, impacted is biologically

significant; the National Oceanic and Atmospheric Administration's

National Marine Fisheries Service (NMFS) Pre-construction Notification

(PCN) database from 1992 to 1996 indicated a loss of 5,500 acres in the

southeast region of the United States (Florida had more than 2,000

acres, Georgia, more than 1,000 and coastal Texas 300 acres in Harris

County alone).

Several commenters raised the issue of alternatives analysis. One

commenter recommended that a full range of reasonable alternatives be

explored in the decision documentation, to include not only alternative

formulations of the individual NWPs, but also alternative approaches to

NWPs, in general. The commenter states that Programmatic General

Permits (PGPs), including state PGPs, have already been demonstrated to

be effective in several northeastern states. One commenter requested

that the decision documents incorporate the regional conditions.

The Corps has collected data relevant to the usage of nationwide

permits and associated impacts and we believe that our data demonstrate

that the adverse effects from the previous NWPs were minimal. These

data show that for Fiscal Year 1995 (FY95) a total of 43,775 activities

were authorized with written Corps verifications under all of the NWPs

nationwide (this total does not include those for NWP 27, which allows

for creation, enhancement and restoration of wetlands and are,

therefore, anomalous to this data set). These authorizations under all

of the NWPs adversely affected approximately 6,500 acres of wetlands

and the Corps received approximately 7,800 acres of mitigation in

return. It is estimated that there were approximately 87,000 activities

authorized by all of the NWPs nationwide that did not require a PCN, or

were otherwise verified in writing by the Corps. We estimate that these

unverified authorizations adversely effected an additional 4,300 acres

of wetlands. Although this is less than many have suggested, we are

consciously striving to reduce this loss through the changes to the

program set forth here today. Moreover, the provisions and limitations

of the nationwide permit program ensure that those activities

authorized by NWPs will have less than minimal adverse environmental

effects. Notwithstanding our continued belief that adverse effects of

the NWP program have been minimal and the fact that the NWPs we are

issuing today will substantially reduce potential effects, the Corps

will collect additional data on the reissued NWPs, to document more

fully the impacts. For all NWPs that involve a PCN, we will collect

data on the acreage of impact and acreage of mitigation. We are also

adding a condition to NWP 26 that will require all permittees to notify

the Corps of the acres of impact of their project.

The Corps evaluation of the impacts on the aquatic environment

resulting from the Nationwide Permit (NWP) program indicates that the

cumulative adverse environmental effects are minimal and not

significant. This is based on our belief that cumulative impacts must

be viewed in the context of the individual watersheds. We believe that

past regional conditions placed on NWPs, particularly NWP 26, in many

districts have substantially reduced cumulative impacts on a watershed

basis. Districts have revoked NWP 26 in many high value watersheds and

placed additional notification or other limitations on NWP 26 to ensure

minimal adverse environmental effects to specific watersheds. Although

these past regional protections have substantially reduced adverse

environmental impacts, we believe additional protections are needed to

continue to ensure that only minimal adverse environmental effects will

occur. Some of the additional protections we are implementing include

substantially reducing the acreage limits under NWP 26, ensuring that

stacking of NWPs impacts a maximum of 3 acres and only after a review

by the Corps, substantially increasing the number of instances where a

Corps review is necessary, and requiring increased and more detailed

data collection to better monitor NWP activity. Moreover, we are more

strongly directing the Corps districts and divisions to add regional

conditions for high value watersheds, and additional generalized

regional conditions that will ensure that only minimal impacts will

occur. This will also ensure that cumulative impacts will not be

significant.

In that the adverse effects will be less than minimal, it also

follows that they will not result in ``significant impacts on the human

environment,'' the threshold requiring an EIS as defined within

regulations implementing NEPA. Thus, no EIS is required prior to

finalization of these nationwide permits. Formal documentation of the

Corps analysis and determinations have been prepared in compliance with

NEPA and the Clean Water Act. This documentation includes an

environmental assessment and, where relevant, a section 404(b)(1)

Guidelines compliance analysis. Copies of these documents are available

for inspection at the office of the Chief of Engineers and at each

Corps district office. Additionally, Division Engineers will supplement

the national NWP decision documentation to discuss regional conditions

and regional revocation requirements, which further ensure that the

impacts are minimal. These supplements will be available for inspection

at the appropriate district offices. We have prepared a programmatic

alternatives analysis for each NWP which discusses administrative

alternatives to issuing each NWP.

General Permit Criteria

Several commenters requested that the Corps define what constitutes

``minimal'' adverse effects and ``similar in nature'' and prove or

guarantee that the NWPs meet the legal requirement that wetland fills

have no more than minimal adverse effects before the NWPs are reissued.

One commenter stated that the Corps simply ignores the requirement of

section 404(e) for activities that are ``similar in nature'' and have

no more than minimal adverse effects on aquatic resources such as

wetlands. Another commenter recognized that generally the NWPs are

conditioned to ensure that adverse effects will be minimal, but was

nevertheless concerned that there are many serious exceptions, noting

NWPs 26, 29, 34, and 40. One commenter argued that some of the NWPs

covering activities that are similar in nature could affect wetlands

that were not similar, including NWPs 7, 12, 13, 14, 16, 17, 19, 21,

25, 26, 29, 33, 34, 37, and 40. Most commenters indicated that NWP 26

was of most concern and others commented that, without mitigation,

there could be a cumulative effect. Several commenters recommended that

[[Page 65880]]

the Corps first obtain data to determine the extent of the project

impacts. Without such data, they maintain that it is difficult to

accurately assess if wetland fills authorized by the NWPs comply with

the Clean Water Act requirements for no more than minimal individual or

cumulative adverse environmental effects.

We have determined that it is not appropriate to define the term

``minimal'' at the national level, because what constitutes minimal

adverse environmental effects can vary significantly from resource to

resource, state to state, county to county, and watershed to watershed,

as well as district to district. Moreover, the term ``minimal'' must be

defined based on the effects of the specific project in the immediate

vicinity, and in the watershed where the activity will occur. Simply

listing the acres lost nationally is not instructive regarding minimal

adverse effects. Therefore, the determination of ``minimal'' adverse

environmental effects is left to the discretion of the DE. The district

represents the most knowledgeable office concerning the aquatic

resources within that particular region, and the DE is therefore the

most capable of assessing relative impacts that would result from

activities authorized under the NWP program. We believe that each

nationwide permit authorizes similar activities within the definition

for general permits as defined in 33 CFR 322.2(f) and 323.2(h), and

with each district's capability to identify impacts associated with

these activities and the ability of the DE to require project specific

mitigation or to exercise discretionary authority, activities

authorized under these NWPs will have less than minimal adverse

effects. The Corps divisions have had the authority, based on

recommendations from the Corps districts, to reduce potential adverse

effects by imposing regional conditions or revoking the applicability

of specific NWPs in high value aquatic areas. The Corps divisions have

used this authority in many cases. However, we are, in this notice,

further emphasizing to all Corps districts and divisions that they

should use this authority within their geographical areas to further

ensure that only minimal individual and cumulative adverse effects will

occur. We expect that each division will, based on the recommendations

from each district, restrict the use of several nationwide permits to

ensure protection of high value aquatic systems under its authority.

Moreover, districts will ensure that adverse effects under NWP 26 are

minimal by requiring mitigation for most projects above \1/3\ acre.

This determination is further reinforced by the NEPA and Section 404

evaluations discussed above. The collection of detailed data for the

purpose of addressing cumulative impacts is also addressed above under

``Compliance with the National Environmental Policy Act.''

Endangered Species

The Corps believes that the procedures that we have in place ensure

proper coordination under section 7 of the Endangered Species Act (ESA)

as well as ensuring that threatened and endangered species will not be

jeopardized and their critical habitat will not be destroyed. We also

believe that current local procedures in Corps districts are effective

in ensuring that the ESA is fully complied with under the nationwide

permit program. Finally, we have incorporated several additional

assurances into the program which have resulted from informal

consultation with the U.S. Fish and Wildlife Service (FWS) and the

National Marine Fisheries Service (NMFS).

Under the current Corps regulations for our NWP program (33 CFR

330.4(f)), each district must consider all information made available

to it, and information that it has in its own records, to determine

whether any listed threatened or endangered species or critical habitat

may be affected by a specific permit action. Based upon this

consideration and evaluation, the district will initiate consultation

with the FWS or NMFS, as appropriate, if the district determines that

the regulated activity may affect, or if the district believes that the

action is not likely to adversely affect, any endangered species.

Consultation may occur under the NWP process or the district may assert

its discretionary authority to require an individual permit for the

action and initiate ESA consultation during the individual permit

process. If the ESA consultation is conducted under the NWP process

without the district asserting its discretionary authority and require

an IP, then the applicant will be notified that he cannot proceed until

the consultation is complete. If the district determines that the

activity would have no effect on any endangered species, then the

district would proceed to issue a NWP verification letter. The Corps

verification letter will explicitly state that the Corps has made a

determination of no affect on endangered species.

Corps districts have, in most cases, established informal or formal

procedures with their local counterparts in the FWS and NMFS through

which the agencies share information regarding endangered species.

Information developed, shared, and used by the local Corps and FWS/NMFS

offices result in the Corps becoming aware of potential adverse effects

on ESA-listed species. In most cases, maps and computer data bases are

available on the local level that identify locations of populations of

endangered or threatened species and their critical habitat. Moreover,

for cases which involve a level of potential adverse effects that

require a PCN process of coordination with the other agencies, the

Corps is now specifically requesting any information that the FWS or

NMFS may have on endangered species as part of the PCN consultation.

Thus, based on location of the project, an additional level of review

now exists for these types of projects. Furthermore, the Corps is now

requiring additional PCNs in additional areas and for additional types

of activities to ensure that the potential NWP effects will be minimal,

for example, the lowered threshold levels of NWP 26. This provides for

an additional level of review for many more activities. Any information

provided through the PCN process will be used by the district to make

its ``may affect,'' ``not likely to adversely affect'' or ``no affect''

determination.

In addition to the procedures listed above, each NWP verification

includes General Condition 11, which states that ``no activity is

authorized under any NWP which is likely to jeopardize the continued

existence of a threatened or endangered species * * * or which is

likely to destroy or adversely modify the critical habitat of such

species.'' Also, to avoid possible confusion on the part of some

applicants, Condition 11 has been modified to clarify that this NWP

does not authorize the taking of Federally listed threatened or

endangered species. This should help ensure that applicants do not

mistake the Corps permit as a Federal authorization that would allow

the taking of Federally listed threatened or endangered species.

Although the Corps continues to believe that these existing

procedures ensure that the Nationwide Permit Program complies with the

ESA, we will take the following additional steps to provide further

assurance. First, although not required, the Corps will initiate

programmatic formal section 7 consultation with the FWS and NMFS as a

precaution to further ensure that there is no adverse effect on listed

species. We intend that formal consultation will be concluded as soon

as possible but not to exceed two years from the date of issuing the

revised and

[[Page 65881]]

reissued NWPs. Second, the Corps will direct the district offices, in

writing, to meet with appropriate local representatives of the FWS and

NMFS and to establish or modify existing procedures to ensure that the

Corps has the latest information regarding the existence and location

of any Federally listed threatened or endangered species or their

critical habitat in its district. This will ensure that districts have

the best information available to make decisions regarding whether an

activity may affect an endangered species and thus whether or not to

initiate consultation. The Corps districts can also establish through

local procedures, regional conditions or other means of additional

consultation for areas of particular concern that a permitted activity

may affect an endangered species. The Corps believes that the

procedures that we have in place ensure proper coordination under

section 7 of the ESA, as well as ensuring that threatened and

endangered species will not be jeopardized, and that their critical

habitat will not be destroyed.

While we are issuing/reissuing this entire package of NWPs (except

for NWP 26) for a period of five years, we will be working over the

next twenty-four months to collect data, monitor use of these NWPs, and

conduct formal consultation under section 7 of the ESA. This two year

process is intended to provide us with more detailed information on the

types of activities being authorized, the nature and extent of wetlands

and other waters being affected by the NWPs, and potential effects to

the Nation's Federally listed threatened and endangered species.

Immediately following the conclusion of this two year process, we will

use the results of this data collection, analysis, and consultation to

reevaluate the NWPs being issued/reissued today to determine what

modifications are necessary. We will provide to the public, by notice

in the Federal Register, the results of our data collection and

consultation. In addition, we will provide the opportunity for public

comment on changes to the NWP program that might be necessary to ensure

compliance with the CWA, ESA and NEPA. In the interim, we would welcome

any comments or information that the public might wish to provide

relevant to our data collection and consultation process.

III. Comments and Responses on Specific Nationwide Permits

1. Aids to Navigation: Two commenters supported reissuance of this

NWP and no changes were proposed. NWP 1 is reissued without change.

2. Structures in Artificial Canals: No changes to this permit were

proposed by the Corps. One commenter suggested the term ``artificial

canal'' be defined and that the definition exclude historic sloughs or

channels. Another commenter suggested that the term ``structures'' is

too vague and requested clarification on the interpretation of

``principally residential canals,'' whether this NWP authorizes the

removal of structures, and whether it can be used in place of or in

association with NWP 13 for bank stabilization.

While the term artificial canal could be misinterpreted by some to

include channelized natural areas, this is clearly not the Corps

interpretation. Should a Corps district find that individuals are using

NWP 2 in such areas, the district would take appropriate action to

bring such activities into compliance through proper procedures. In

accordance with 33 CFR 322.5(g), structures in previously authorized

canals would have been considered under applications for the original

canal work. In grandfathered canals or in cases were structures may not

have been considered, the DE may use discretionary authority to

evaluate structures if more than minimal adverse effects are

anticipated. Artificial canals within principally residential

developments would be used primarily for personal or recreational

egress and ingress rather than for commercial use. The Corps

procedures, as outlined in the general condition for historic

properties, comply with the requirements of 33 CFR part 325 appendix C,

which implements 36 CFR part 800 and fully satisfies the requirements

of National Historic Preservation Act (NHPA). This nationwide permit is

not to be used for bank stabilization projects; such projects should be

reviewed for authorization under NWP 13. In case(s) of independent

utility, NWP 2 may be used in conjunction with NWP 13 provided

individual or cumulative adverse effects are not more than minimal. We

anticipate that the impacts resulting from the removal of structures in

artificial canals would be similar to the impacts derived from the

original installation. Consequently, removal activities are authorized

by this NWP. NWP 2 is reissued without change.

3. Maintenance: The Corps proposed no changes to this nationwide

permit. One commenter recommended that the NWP not allow restoration

that clearly adversely affects fish and wildlife. Several commenters

recommended that no deviation from the original design be authorized by

the permit since changes could result in significant adverse effects,

while one commenter suggested eliminating the qualification for ``minor

deviation in the structure's configuration.'' Another commenter

requested a list of types of authorized activities and that ``minor''

be defined. Another commenter asked for inclusion of bridge/culvert

replacement that complies with flood-proofing and structural design

standards.

The experience with NWP 3 has been very good; navigable waters have

not been obstructed and impacts are very minor. Furthermore, in many

cases, use of NWP 3 actually enhances the aquatic environment. For

example, replacing a seawall that is damaged often results in

eliminating chronic turbidity caused by erosion. Because all structures

and fills require maintenance periodically and because infrastructure

repair following national disasters is critical to the public welfare,

we believe this nationwide permit is necessary. We are retaining the

provision allowing ``minor deviations'' in order to provide the

flexibility necessary to keep pace with construction technology,

building codes and public safety. Activities with deviations resulting

in more than minimal adverse effects would not be authorized by this

nationwide permit, nor would activities having more than minimal

adverse effects on fish and wildlife. The qualifications attached to

the ``minor deviations'' provision are considered necessary in order to

ensure adverse effects are avoided and minimized to the extent

possible. This NWP is not limited by type of facility. ``Minor'' is not

specifically defined, because the variety of structures and fills

included makes defining the word impracticable. ``Minor'' is meant to

refer to a level of project deviation which will result in a level of

adverse environmental effects associated with the change that are no

more than minimal. Bridge and culvert replacement in compliance with

local requirements and design standards would normally be authorized

under the permit if they meet the limitations and conditions of the

permit.

One commenter requested that NWP 3 authorize activities previously

authorized by 33 CFR 330.3 and equivalent authorizations at the state

level or constructed prior to the excavation rule. NWP 3 specifically

states in the first sentence that 33 CFR 330.3-authorized activities

are included. Similar authorizations under state laws can vary

considerably and may not be consistent with NWP 3; thus a blanket

authorization is not appropriate. This nationwide permit is tied to

structures

[[Page 65882]]

and fills only, and cannot be used to authorize the repair,

rehabilitation or replacement of excavated facilities. The term

``structure'' does not include unconfined waterways, such as streams

and non-lined drainage ditches. The term does include such activities

as bank protection measures, ditches and canals lined with man-made and

placed materials.

Several commenters recommended that fills and structures required

by special conditions in a previously issued permit be covered. The NWP

does authorize maintenance of such structures or fills that were

previously authorized. This NWP does not authorize activities that were

not previously authorized by the Corps.

Another commenter suggested that ESA coordination occur after

catastrophic events when new habitat can be created but then damaged by

repair activities. General Condition 11 and ESA section 7 require

coordination for endangered species. Consideration of improved habitat

is made under section 7.

Another commenter felt maintenance/operation plans should be

approved before the work is conducted. We believe that this would

create an unnecessary burden on the applicant and the Corps for

authorization of maintenance and repair activities with less than

minimal adverse effects.

One commenter believed that the two year construction time period

should be extended, while another felt that two years is long enough.

In our judgment, two years has proven to be a reasonable period that

does not jeopardize environmental protection due to changing

conditions. The permit includes provisions for the DE to extend the

period if warranted.

Another commenter felt that this NWP should not be allowed in

floodplains. We believe the floodplain capacity would not be

appreciably changed for structures or fill maintenance and repair

within the limits of this NWP.

One commenter suggested limiting the impact area and another

suggested the PCN procedure be applied to this NWP. Since NWP 3 only

authorizes structures and fills that are existing, the impacts have

already occurred. Maintaining them creates little or no added adverse

effects, which ensures that effects would be less than minimal.

Therefore, we believe neither of these limitations should be applied.

NWP 3 is reissued without change.

4. Fish and Wildlife Harvesting, Enhancement, and Attraction

Devices and Activities: As part of the proposed modification of this

permit, we were clarifying that the permit does not authorize the use

of covered oyster trays or clam racks. One commenter questioned whether

the prohibition on clam racks included ``clam bags'' and was concerned

about the scope of ``covered oyster trays and clam racks.'' This

commenter was also concerned about the harvesting of natural live rock,

the inclusion of open water pens in the definition of ``impoundments or

semi-impoundments for culture of motile specimens,'' or qualitative

limitations to define ``small fish attraction devices''; and whether

bottom dredging of sea grass areas or ``bottom tending gear'' for

commercial purposes were authorized by this permit. One commenter

suggested that the permit should specifically exclude commercial scale

net pen culture in addition to oyster trays and clam racks. Another

commenter asserted that shellfish beds should not be authorized under

this permit. This commenter also stated that the exclusion of

authorization of covered racks and the location of racks in wetlands of

sites that support aquatic vegetation was not sufficient. The commenter

cited information that described changes in species diversity

associated with the location of racks on and in intertidal mudflats.

One commenter stated that the permit should be modified to authorize

the releases of scallop and hard clam seed into eelgrass cover. One

commenter urged that small aquaculture projects be excluded from this

permit, while another commenter stated that fish hatcheries should be

specifically excluded. A few commenters suggested that the installation

of fish ladders be included under the permit. One commenter was

concerned about issuance of permits in areas that have been customary

boating channels.

Each of the comments on this nationwide permit are expressions of

concern for unique situations in specific regions of the Nation. It is

not possible to address all the possible limitations and conditions

that may be appropriate at a local or regional level. Nor can we

address all the possible variations in terminology, such as ``clam

bags.'' Therefore, we believe it is more reasonable and practicable for

such comments to be addressed through regional conditions and the

provisions for discretionary authority at the division and district

levels. Corps districts have the authority, working with the divisions,

to restrict use of this NWP in high value areas, such as particularly

vulnerable seagrass beds, if they deem such restrictions to be

necessary. The one change proposed by the Corps was not objected to and

received some comments of support. Therefore, that change has been made

to the permit in its reissuance.

Another commenter suggested that the permit be modified to include

``sites where submerged aquatic vegetation may not be present in a

given year.''

Although we believe that the NWP language includes such sites in

the terminology ``* * * or sites that support submerged aquatic

vegetation * * *'' (i.e., a site may not have submerged aquatic

vegetation present, but could support such vegetation), we have

clarified this in the NWP. NWP 4 is reissued with the proposed changes

and the clarification stated above.

5. Scientific Measurement Devices: The Corps proposed no changes to

this NWP. A few commenters were concerned that the structures permitted

by this NWP could preclude or substantially obstruct movement of

aquatic organisms including migratory fish. One commenter was concerned

that this NWP does not provide any limit on the size or use of the

structures authorized and suggested that a maximum size be included

(e.g., 1000 square feet). This commenter also recommended that the NWP

be conditioned that the structure be used exclusively for purposes

associated with scientific measurement to preclude anyone from using

this NWP to circumvent the permit process. One commenter recommended

that the 25 cubic yard threshold be maintained but to eliminate the PCN

requirement.

We believe the concern for impeding the passage of fish or

shellfish is addressed by General Condition 4. Due to the varying

structures involved in scientific measuring devices, imposing a size

limitation would be difficult and unwarranted. A condition will be

added stating that any structure authorized by this NWP must be

exclusively used for purposes associated with scientific measurements.

We have also modified the PCN requirement so that applicants will need

to notify only the Corps. NWP 5 is reissued with the modifications

described above.

6. Survey Activities: The Corps-proposed changes to this nationwide

included allowing discharges associated with the placement of

structures necessary to complete a survey for historic resources and

soil surveys. Most commenters supported the proposed changes. A few

commenters requested that the placement of survey markers such as

benchmarks and monuments be authorized under this NWP. One commenter

felt that mechanical clearing of survey lines should be included, but

limited to 8 to 10 foot widths. A few

[[Page 65883]]

commenters requested that limited discharges and structures necessary

for the recovery of artifacts and information be included in the NWP

rather than excluded as proposed. Many commenters asked for the

exclusion of seismic exploratory operations involving the use of

explosives, such as ``3-D'' operations, due to the extensive scope and

environmental impacts of such activities. It was proposed that the term

``core sampling'' be changed to ``soil, rock and sediment sampling''

and changing ``exploratory-type bore holes'' to ``exploratory-type

holes'' because while most sampling of rock may be by coring, much of

the soil sampling is by other methods (i.e., augering, hand shovel,

backhoe, etc). Other commenters asked that the permit language

specifically indicate that no permanent structures are authorized, all

fills be removed and that the area be restored to its original state.

The placement of survey markers such as benchmarks and monuments is

authorized under NWP 18 within limitations. Activities necessary for

the recovery of artifacts and information are not authorized by this

NWP which is intended for authorization of survey activities only to

ensure the minimal adverse effects limitation is not exceeded.

Operations involving the use of explosives such as 3-D operations with

blast shock during seismic tests, or mechanical landclearing

activities, have not been categorically excluded. These activities are

either unique to, or differ between, geographical regions of the

Nation; therefore, regional conditions are the best way to address

concerns about minimizing the effects of 3-D seismic surveying. Corps

districts will be directed to coordinate with any Federal, state, or

tribal authority expressing a concern about 3-D seismic surveying for

the purpose of developing regional conditions to address those

concerns, as appropriate. Of course, use of towed explosive, pneumatic

or seismic devices that do not involve construction, excavation or

other work in sediments do not require any permit from the Corps. We

have conditioned this NWP to clarify that it does not authorize any

permanent structures or fills. The current wording of the NWP does

include, but is not limited to, the use of augers, shovels, backhoes,

and other small equipment, as well as core drills. NWP 6 is reissued

with the proposed changes and the clarification stated above.

7. Outfall Structures: The Corps proposed no changes to this NWP. A

number of commenters objected to re-authorization of this NWP or stated

that work in tidal wetlands or areas supporting anadromous fishes

should be excluded. Commenters stated that outfalls have caused the

loss of wetlands and may trap or entrain fish. Several commenters

stated that the NWP should contain a requirement to include measures in

the design to prevent such fish loss. One comment indicated that work

in areas that may be contaminated should be excluded. Another stated

that activities authorized by this NWP have significant adverse

environmental effects.

Regional conditioning of the nationwide permit and the provisions

for discretionary authority at the division and district levels will

provide tools necessary to protect fish, wetlands, and water quality,

and to address any other environmental effects that potentially are

more than minimal.

One commenter requested elimination of the notification requirement

when the construction of the outfall requires less than 25 cubic yards.

Several commenters called for retaining the notification requirement.

The notification requirement will be retained to allow review of

proposed projects for greater than minimal adverse environmental

effects and impacts to navigation.

Several commenters stated that this permit violates section 404(e)

of the Clean Water Act because the discharge structures may not be

similar in size or in the material discharged. One commenter called for

authorizing all intake structures under this NWP.

The activities authorized by this NWP are similar because they are

similar in scope and purpose and are reviewed and approved pursuant to

the National Pollutant Discharge Elimination System (NPDES) under

section 402 of the Clean Water Act. The relationship of these projects

to section 402 assists the Corps in arriving at a minimal adverse

effects determination. The inclusion of all intake structures under the

NWP would make such a determination not possible. NWP 7 is reissued

without change.

8. Oil and Gas Structures: The Corps proposed minor changes to this

nationwide permit to clarify that Corps review for taking discretionary

authority is limited to the effects on navigation and national

security. One commenter was concerned that work could occur in

environmentally sensitive areas. Another commenter suggested that

pipelines be excluded from use of this NWP. A few commenters believed

that this NWP should not be reissued because of potential impacts

associated with oil and gas exploration and that this NWP does not meet

the ``similar in nature'' or ``minimum effects'' threshold of section

404(e) of the Clean Water Act. One commenter recommended that a PCN be

required for this NWP. A few commenters believed that individual state

401 water quality certification should be required for these

activities.

The Corps believes this NWP is very restrictive. The only

structures that can be authorized under this NWP are those within areas

leased by the Department of the Interior, Minerals Management Service.

The general environmental concerns are addressed in the required NEPA

documentation the Service must prepare prior to issuing a lease.

Further, the Corps involvement is only to review impacts on navigation

and national security as stated in 33 CFR 322.5(f). NWP 8 is reissued

with the proposed clarifications.

9. Structures in Fleeting and Anchorage Areas: The Corps proposed

no changes to this NWP. One commenter requested clarification of the

term ``structures'' and the definition of ``fleeting and anchorage

areas,'' and expressed concern for secondary impacts of vessel

discharges, and impacts from shading submerged aquatic vegetation by

the structures.

The NWP is specific to the purpose of moorage of vessels, thus

structures will be small compared to the vessels. Fleeting and

anchorage areas are determined by the U.S. Coast Guard and indicated on

navigation charts. They are for concentrating vessels in an area that

minimizes navigation impacts to other vessels while the former vessels

wait for unloading cargo, etc. Shading impacts are not expected as

these areas are usually in deep water and the structures and buoys

seldom produce measurable shading. NWP 9 is reissued without change.

10. Mooring Buoys: The Corps did not propose changes to this NWP.

One commenter expressed concerns about the limitations or

specifications on the size or number of mooring buoys, and the

environmental restrictions on location.

Comments regarding specific areas that should be excluded or other

special restrictions that are needed to protect special areas such as

shellfish beds or submerged aquatic vegetation should be dealt with by

contacting the appropriate district and requesting the addition of

regional conditions. Based on our experience, we do not anticipate that

the mooring buoys and anchorage systems will have more than minimal

adverse effects, either individually or cumulatively. NWP 10 is

reissued without change.

11. Temporary Recreational Structures: The Corps proposed no

changes to this NWP. A few commenters were concerned that the NWP may

[[Page 65884]]

cause removal of riparian vegetation and alter the nearby shore aquatic

environment, and that the Corps should define ``temporary,'' ``small

floating docks'' and ``seasonal''. A commenter requested that the NWP

be expanded for certain commercial activities other than jet ski,

parasailing, and similar rentals, provided the activity is of temporary

duration.

We disagree with the approach of attempting to define national time

limitations on temporary or seasonal structures because of the seasonal

variations for different recreational activities from region to region.

Regional conditions can be developed for the NWP and/or the District

Engineer may use discretionary authority, on a case-by-case basis, if

duration, structure size, or location require such action. Limiting the

NWP to discrete events would greatly reduce its utility. This

nationwide permit was proposed to authorize temporary recreational

structures which overall would have only minimal adverse effects. Given

this, and the discretionary authority provisions, the Corps believes

that the NWP adequately balances the need for temporary recreational

structures in waters of the United States, while protecting riparian

and aquatic resources. NWP 11 is reissued without change.

12. Utility Line Backfill and Bedding: The Corps proposed rewording

of this NWP to include discharge of dredged material from the trench

excavation, and requested comments establishing limitations for special

aquatic sites. A large number of comments addressed NWP 12. Based on

the comments we received and the Corps internal evaluation of the

implementation of NWP 12, we have made substantial changes to this

permit. We have added a PCN review for four situations: for any

activity that would be authorized under NWP 12 that involves more than

500 linear feet in waters of the United States; for any project that

involves mechanized landclearing of forested areas; for any utility

line that is placed parallel to a water of the United States; and for

any activity involving authorization under section 10 of the Rivers and

Harbors Act of 1899. We believe that these increased limitations will

ensure that no more than minimal adverse effects to the aquatic

environment will occur.

The comments were closely split between supporting issuance without

changes and supporting issuance with limitations. Several commenters

were opposed to reissuance based on environmental impacts. Many

commenters, requesting limitations, made suggestions on those limits:

200 linear feet, 1,000 linear feet in forested wetlands, 6 inch

diameter utility line, 0.33 and 0.5 of an acre. Some commenters

suggested PCN procedures above particular limits: 6 inch diameter line,

0.5 of an acre. The allowed duration of side casting also received

suggestions: no side casting, 14 days, 30 days. Work with a maximum

width of 30 feet was suggested by two commenters.

The variation in wetland values across the nation dictates that a

limitation, or threshold for PCN, not overly restrict use of the NWP or

unnecessarily add administrative burden to any large geographic area.

Potential impacts will vary with the construction methods. The acreage

limitation presents the possibility that high value wetlands could

suffer more adverse effect at less acreage than the limitation/PCN

threshold, but low value or easily recovering wetlands would require

unnecessary added administrative procedure when exceeding an acreage

limitation/threshold. An acreage limit of 0.33 acres would allow a

nearly 2\1/2\ mile long utility line trench that was one foot wide.

This could be a minimal impact in some areas, but may require an

individual permit in other geographic areas and/or wetland types or

values.

Based on careful review of all the comments, we have determined

that certain limitations should be established and that certain

activities will require a Corps-only PCN. We have added section 10 to

this permit to allow districts to authorize projects that cross

navigable waters. To ensure the navigable capacity of such waters will

not be adversely affected, we have also established a PCN for any

authorization that involves work in section 10 waters. We have also

explicitly stated that mechanized landclearing, including landclearing

of forested wetlands, for overhead utility lines may be authorized

under NWP 12. To ensure that only minimal adverse effects will occur,

we have established a PCN requirement for any utility line that will

require landclearing of forested wetlands. We have also included the

requirement for a PCN whenever a utility line is placed parallel to a

stream bed. Finally, in order to ensure that only minimal adverse

effects will occur, we have established a PCN requirement for any use

of NWP 12 that exceeds 500 linear feet in waters of the United States.

Several commenters recommended that stream crossings be allowed

only if perpendicular to the stream. One commenter suggested that bank

stabilization must occur by segments rather than at the completion of

the entire project. Another stated that laying utility lines on bottoms

of streams should be discouraged. Several recommended that alternative

routes be examined more thoroughly. We have added several PCN

requirements, including one for situations where a utility line is

proposed to be placed parallel to a stream bed. Generally, utility

lines are placed perpendicular to a stream and we are, with this

notice, directing the Corps districts to critically evaluate any

projects that may be proposed to be placed parallel to a water of the

United States. Moreover, we believe that it should be an exceptional

case where a district authorizes a utility line within, or within

wetlands parallel to, a stream bed for more than 100 feet. With the

added PCN review, by the Corps, for any project that should be subject

to a generalized alternative analysis (i.e., more than simply adjusting

the alignment slightly to ensure minimal adverse effects), the district

will use its discretionary authority to require an IP.

Several commenters believe that this permit should not be used in

combination with other permits (see additional discussion on stacking

permits). This restriction would be too limiting for many projects that

have minimal adverse effects for the entire project including utility

lines. At times, utility lines are considered ``single and complete

projects'' as they support existing developments but will also support

other future development. We have added a PCN for any stacking of NWP

12 with any other NWP.

Several commenters appeared to be confused with the word

``subaqueous''. Two commenters suggested slightly different wordings

and deleting ``subaqueous''. The term subaqueous referred to below the

surface of the ground (wetland) or water surface; a line laid on the

surface does not require a section 404 permit but any mechanized

landclearing to lay such a line would. We have dropped ``subaqueous''

as we feel the reference is not needed and confusing. One commenter

desired authorizing maintenance of landclearing. Most maintenance

consists of cutting the wetland vegetation above the soil, which is not

regulated under section 404 when the soil is not disturbed. If

maintenance of a utility line corridor involves landclearing as defined

in 33 CFR 323.2(d)(1), it would require additional authorization.

One commenter was confused about the ``single and complete

project'' requirement for an NWP combined with an individual permit in

relation to the required section 10 permit for utility

[[Page 65885]]

lines crossing navigable waters. The NWP authorization covers the

excavation and backfill portion in conjunction with the remaining

single and complete portion of the line that continues beyond the

navigable water, usually in wetlands. ``Single and complete'' for a

linear project under the NWPs is defined at 33 CFR 330.2(i); briefly, a

linear project is single and complete at each widely separate water

crossing. Also, the navigable water portion of the structure (utility

line) required a permit under section 10 because it was not included in

NWP 12 authorization. Although we have added section 10 to NWP 12, the

single and complete provision for linear projects remains in effect.

In the past, NWP 12 has not included Section 10 authorization,

which has added an individual permit procedure (usually a Letter of

Permission) to the authorization of a utility line in navigable waters.

The Corps has decided to add section 10 authorization to minimize the

administrative procedures and decrease the time needed for

authorization. However, we are requiring a PCN for review of navigation

impacts and requiring procedures for notifying the National Oceanic

Atmospheric Administration for charting the utility line to protect

navigation.

A few commenters were confused by the term ``parallels a water.''

The Corps had suggested, in the proposal, that care should be taken

during the placement of a utility line parallel to a waterbody. We are

concerned with the potential adverse effects associated with the

placement of a utility line parallel to a waterbody and, therefore,

have modified and clarified this language. We have removed the proposed

language and have added a PCN requirement for the placement of a

utility line within a water of the United States parallel to a stream

and have clarified that ``parallel to a stream'' means installation of

a utility line lengthwise to the bed of the stream. Furthermore, we

have added a PCN requirement for proposed projects that would involve

placing utility lines along stream beds (see discussion above). Two

commenters suggested clarifying whether the NWP included discharges for

access roads and foundations for structures supporting overhead

transmission lines. Structural fills for overhead utility line supports

are often permitted by NWP 25. Access roads could be authorized by NWP

14 or 26 in some cases. The Corps has clarified that mechanized

landclearing is authorized for overhead utility lines as long as the

width is kept to the minimum necessary. Furthermore, as discussed

above, we have added a Corps-only PCN for landclearing forested areas.

Access roads and foundations for overhead lines are not authorized. NWP

12 is reissued with modifications as discussed above.

13. Bank Stabilization: The Corps proposed no changes to this NWP.

Two commenters wanted to keep the current language of the nationwide

permit with no changes, while another expressed general support.

Several commenters objected to limitations on length of project area or

quantities of fill, particularly for flood control structures. A few

commenters stated that the limitation of one cubic yard of fill per

linear foot should not include any earthen backfill to return the bank

to a former footprint, and that the limitation should apply only to

fills that encroach into the pre-existing waterway. Their reasoning is

that this would allow reconstruction of failed levees and road

embankments and would not result in a loss of wetlands or jurisdiction

relative to the pre-failure condition. These commenters also note that

the prohibition of any fill in any special aquatic site is a

restriction that unduly constrains projects and often renders this NWP

inapplicable. They recommend that impacts to special aquatic sites of

up to 0.1 acres be allowed without notification, and that greater

acreage be allowed with notification. These commenters further

recommend that use of biotechnological slope protection or other

methods relying on vegetative stabilization be allowed greater PCN

thresholds to encourage such usage.

We believe expansion of the scope of this NWP would result in a

potential for more than minimal adverse effects. The permit is designed

specifically for the protection of existing bank lines at the time of

protection and does not authorize filling to restore the original bank

line or any other intermediate alignment of the bank. Adjustment in the

alignment of the bank is allowed only for reasonable and practical

design and construction considerations within the limitations of NWP

13.

Two commenters recommended removing the special aquatic site

restriction for ephemeral watercourses when there is no flow under the

premise that such areas are defined as wetlands under a broad

definition. These commenters also recommend that the nationwide permit

recognize that there is likely to be a construction zone 30 feet or

greater along the bank within jurisdictional areas where project

impacts will be incurred for installation of bank protection.

We disagree that wetlands in ephemeral systems are necessarily of

lesser value than other waters simply because they do not contain water

at all times of the year. Therefore, removal of special aquatic site

restrictions is not warranted. We do recognize that certain bank

stabilization projects necessitate keying in the toe of the slope to

ensure adequate protection, and that such work requires a construction

footprint that will impact additional areas beyond the waters of the

United States. If any such adverse effects are likely to be more than

minimal for a particular waterbody, the Corps will add regional

conditions to ensure that only minimal adverse effects will occur.

One commenter stated that notification is an unnecessary level of

Federal review, and that it usurps the states' authority to assess

site-specific impacts to water quality under section 401.

This is not an expansion of authority because notification has been

a condition of this nationwide permit since its last re-authorization

in January 1991. Likewise, it does not usurp the authorities of the

states pursuant to section 401 of the Clean Water Act. A state may

condition its 401 water quality certification for this NWP so that it

will review projects over 500 feet in length, and issue or deny site-

specific section 401 certification.

Many commenters were opposed to the reissuance of this nationwide

permit because they perceived it to be used in ways inappropriate to

its intended use, such as a precursor to channelization of

watercourses. Specifically, they suggested that permittees might use

this nationwide permit to construct flood control works, and how

riprapping affects existing hydrology with adverse effects on habitat

and adjoining properties. Several commenters stated that this

nationwide permit should specifically exclude channelization, noting

that bank stabilization projects can adversely affect habitats adjacent

to jurisdictional waters that may support plant or animal populations

that are equally limited. We agree that channelization is an

inappropriate use of this nationwide permit. It is the responsibility

of each district to determine whether a particular project is

contributing to greater than minimal cumulative adverse effects, and to

exercise discretionary authority if they believe such effects are

occurring.

Several commenters noted that this nationwide permit should be used

selectively on a regional or watershed basis to prevent cumulative

adverse effects in sensitive habitats. Others stated that this

nationwide permit needs

[[Page 65886]]

better monitoring and compensatory mitigation, or should always require

compensatory mitigation. One commenter stated that this nationwide

permit should not be used in conjunction with any other nationwide

permit.

We believe the provisions for regional conditioning and asserting

discretionary authority will ensure that greater than minimal adverse

effects do not occur. Mitigation is being required where appropriate to

achieve minimal adverse effects, but we do not believe that all bank

stabilization projects require mitigation because many projects have

minimal effects, in fact often positive effects, on aquatic resources

without mitigation. For example, riprap on an eroding barren bank will

typically increase habitat diversity and reduce turbidity in downstream

waters.

One commenter stated that because erosion has occurred after some

projects permitted under this nationwide permit were constructed, the

Corps should not reissue it unless it can demonstrate that such

projects will perform as expected. Another commenter noted how some

projects of inadequate design integrity would eventually wash

downstream with potentially adverse effects on water quality, aquatic

habitat, public safety, and aesthetics.

The Corps evaluates projects to determine if they are in compliance

with Clean Water Act requirements, including whether the project will

only result in minimal adverse effects for NWPs, and to ensure that

they are not contrary to public health or safety. We believe that the

bank stabilization methods employed are generally effective even in

cases where there is no reporting to the Corps. Although a washout of

shore protection could occur, such unusual flows would also wash out

unprotected shorelines and structures or natural features such as

trees, rocks, and the like, all of which would wash downstream.

One commenter questioned whether this nationwide permit could be

used in lieu of NWP 2 for stabilization projects in artificial canals.

Another commenter recommended that this nationwide permit should be

used only on artificial canals.

NWP 13 can be used in lieu of NWP 2 where appropriate. However,

restricting its use only to artificial canals would unduly restrict its

utility.

Several commenters recommended retaining the notification

requirements, particularly for those projects in excess of 500 linear

feet. Several commenters called for lowering the PCN threshold to 100,

200 or 300 feet to more appropriately address cumulative impacts. One

commenter suggested that the cubic yardage limit for notification be

100,000 cubic yards. Several commenters stated that the nationwide

permit should specifically mention the types of bank stabilization

allowed, with an emphasis on methods that did not include landscaping.

Many others recommended excluding certain materials such as gravel,

asphalt, tires, automobiles, building rubble, poured concrete, driven

sheet piles, and structural timber bulkheads. Two commenters stated

that projects authorized under this nationwide permit should not

include seawalls or bulkheads on open or natural shorelines and should

not allow backfilling for the purpose of creating fast land or

reclamation. Three commenters stated that use of concrete rubble should

only be used if it meets acceptable riprap standards for size and

density, is free of contaminants, is faced with acceptable rock riprap,

and has all rebar cut flush with the surface.

We believe the terms and conditions that prohibit discharges in

special aquatic sites (including wetlands) prohibit the use of

unsuitable and toxic materials, limit the shore stabilization to 1

cubic yard per linear foot, and require that the proposed stabilization

be the minimum necessary, are sufficient to alleviate these concerns.

In some cases where the adverse effects could be more than minimal

(i.e., discharges on more than 500 feet of shoreline, and/or greater

than one cubic yard per linear foot of shoreline) notification to the

DE is required. Also, where potentially high value aquatic resources

may be impacted with less than 500 feet of bank protection, the Corps

division can regionally condition NWP 13. The intent is to accommodate

a wide range of users, techniques and materials with minimal time delay

and maximum protection of valuable wetland resources. NWP 13 is

reissued without change.

14. Road Crossing: The Corps proposed no changes to this NWP. Many

commenters suggested that this NWP should not be reissued or should be

modified for a number of reasons including the following: it should not

be used for large road projects with multiple wetland crossings; the

breadth of the road crossings are not constrained; the acreage

allowance should be reduced; and this NWP is most frequently stacked

with other NWPs, causing adverse effects to exceed minimal. A few

commenters recommended that a maximum acreage impact limit be applied

to large road projects with multiple crossings of waters of the United

States (including wetlands and other special aquatic sites).

The Corps regulatory policy regarding linear projects and what

constitutes a single and complete crossing is well established (RGL 88-

6). Individual channels in a braided stream or individual arms of a

large, irregularly-shaped wetland or lake, etc., are not separate

waterbodies. For linear projects, the single and complete project

requirement for individual NWPs will be applied to a waterbody at a

single location. That is, each waterbody impacted by a roadway will be

considered a single and complete crossing at that location. Where a

roadway intersects a single waterbody such as a meandering river at

separate but distinct locations, each crossing is considered a single

and complete crossing. The purpose of the ``single and complete''

language is to preclude situations where one project will repeatedly

crisscross one waterbody when such multiple crossings can be

practicably avoided.

Several commenters expressed support for this NWP as proposed.

Others indicated that there should be no limits on the length or area

of a crossing. Two commenters suggested that the NWP 26, 1 to 10 acre

provision be incorporated and that acreage be the only controlling

limit. Two other commenters recommended the length be increased to 400

linear feet and one suggested that the acreage be increased to acre. A

few commenters opposed the inclusion of the ``Notification'' general

condition in this NWP.

We carefully considered the suggestions to limit the width of the

roadway as well as to expand the length and maximum acreage for the

roadway. We concluded, however, that the limits in the NWP as proposed

represent a tested balance. With regard to stacking NWP 14 with other

NWPs, we have conditioned this NWP to not allow NWP 18 or NWP 26 to be

combined with it for the purpose of expanding the allowable road

crossing footprint. In addition, a Corps-only PCN is required any time

this NWP is combined with any other NWP. (See discussion on ``Stacking

of NWPs'' in section II above.). NWP 14 is reissued with the

modification discussed above.

15. U.S. Coast Guard Approved Bridges: The Corps proposed no

changes to this NWP. A few commenters expressed concerns about the

impacts associated with the construction of access fills, fill removal,

and restoration of preconstruction grades. Another commenter was

concerned about revegetation with native species after completion of

such preconstruction

[[Page 65887]]

grade restoration activities. One commenter encouraged inclusion of

conditions to require excavation and removal of old approach fills when

they have been replaced. Another commenter stated that the impacts

related to Coast Guard bridges can be significant and that issuance of

the NWP contributes to an incomplete and less than thorough review by

the Coast Guard. A few commenters felt that the Corps had

inappropriately delegated Section 404 responsibility to another agency.

Based on the requirement of this NWP and the ability of the DE to

assert discretionary authority should the nature of the impacts

warrant, we believe that this NWP is an efficient means to regulate the

construction of bridges. The regulations also allow for the development

and inclusion of conditions to address particular project aspects such

as removal of old approach fills, revegetation specifications, etc. The

comments regarding the delegation of regulatory authority are

apparently based on the misinterpretation of the permit language. The

Coast Guard has been given the task of reviewing such bridge

construction pursuant to section 9 of the Rivers and Harbors Act of

1899. A Department of the Army permit pursuant to section 404 of the

Clean Water Act is still required for the discharge of dredged or fill

material into waters of the United States associated with the

construction of the proposed bridges and causeways. NWP 15 is reissued

without change.

16. Return Water From Upland Contained Disposal Areas: The only

change the Corps proposed to this NWP was a change in wording to note

that, in certain circumstances, dredging may now require a section 404

permit. One commenter requested that the NWP require an NPDES permit. A

couple of commenters recommended that the NWP not be applicable to

dredged material taken from areas of known sediment contamination or

where there is reason to believe that the discharge is contaminated. A

few commenters stated that water quality violations could result from

the NWP unless it is limited to the activities authorized by, and

operating in conformance with, currently valid permits or exemptions.

One commenter suggested that all return water be tested for

contaminants. A couple of commenters thought that the original text and

the clarification were unclear without specifying when the activity may

require a section 404 permit relative to the excavation rule, or when a

section 10 permit may be required.

This NWP authorizes the return of effluent to waters of the United

States from upland contained disposal areas, and is not intended to

address the dredging activity. However, a Department of the Army permit

pursuant to section 10 is required for structures or work in, or

affecting, navigable waters of the United States, as that term is

defined in 33 CFR parts 322 and 329. A Section 404 permit is required

for any addition or redeposition of dredged material associated with

any activity that destroys or degrades a water of the United States as

defined in parts 323 and 328, unless the discharger demonstrates to the

satisfaction of the Corps or EPA, as appropriate, prior to the

discharge, that the activity will not have such an effect. The effluent

subject to NWP 16 has been administratively defined as a discharge of

dredged material. Based upon Corps experience and knowledge of dredging

and disposal operations, we believe that the technology is readily

available to control the quality of the return water from contained

upland disposal sites. Any adverse environmental effects resulting from

this type of activity would be minimal, provided the effluent meets

established water quality standards and adequate monitoring of the

activity is performed to assure compliance with these standards. With

this in mind, it is our intent to provide the states an opportunity to

review each activity under this NWP authorization to assure compliance

with state water quality standards. We see no need to require

additional state review unless the water quality certification for the

NWP has been denied. The prospective permittee must receive an

individual certification or waiver from states that have denied water

quality certification for the NWP authorization. The Corps has no

authority to determine NPDES program requirements. NWP 16 is reissued

with the proposed changes.

17. Hydropower Projects: The Corps proposed no changes to this NWP.

The comments received addressing NWP 17 were all related to the

potential impacts associated with hydropower projects and stated the

position that NWP 17 is contrary to the NWP program's provision

allowing only activities of similar nature and of minimal impacts.

We are maintaining the notification requirement for this NWP to

enable us to assess the nature of the impacts associated with each

project and whether to exert discretionary authority. In addition, the

Federal Energy Regulatory Commission has the responsibility of

examining environmental impacts for those small hydropower projects at

existing reservoirs. NWP 17 is reissued without change.

18. Minor Discharges: The Corps proposed a modification to the

wording of this NWP to clarify how the Corps measures excavation

activities for the purpose of determining compliance with the NWP. This

was based on existing guidance developed after the Corps revised the

definition of ``discharge of dredged material'' at 33 CFR 323.2(d) to

clarify when the Corps regulates incidental discharges of dredged

material associated with excavation activities. (See August 25, 1993,

Federal Register, 58 FR 45008.) Based on this existing procedure, this

clarification does not affect the number and type of activities that

are regulated under this NWP. When measuring the quantity of the

discharge of dredged or fill material, the Corps will include the

volume of any excavated area (i.e., the volume of the substrate

excavated) which is below the plane of the ordinary high water mark

(OHWM) or high tide line (HTL). Many commenters expressed uncertainty

regarding how to measure the 25 cubic yards of discharge authorized by

this NWP. Some commenters requested that the allowable area of impact

be increased to 2/10 acres. The Corps continues to believe that the

current volume and acreage limits are, and have proven to be,

appropriate to ensure that the adverse effects are no more than minimal

for the purpose of authorization by this NWP and is not changing those

limits. We are providing the following guidance to clarify how NWP 18

quantities are measured.

How to determine quantities under NWP 18: NWP 18 applies to all

waters of the United States. For projects that are;

Below and waterward of the OHWM or HTL:

Volume: The cubic yardage of any dredged or fill material placed;

plus,

The cubic yardage of the substrate excavated.

Acreage: The acreage of any areas that are filled, excavated,

flooded and drained.

Landward of the OHWM or HTL:

Volume: Not applicable. Only acreage limits apply.

Acreage: The acreage of any areas that are filled, excavated,

flooded and drained.

For projects that are both below and waterward of the OHWM or HTL

and that are landward of the OHWM or HTL, the acreage is the sum of the

two acreages as determined above, while the volume is that measured

below and waterward of the OHWM or HTL. For example, a permittee may

place 50

[[Page 65888]]

cubic yards in a wetland landward of the OHWM provided the fill does

not exceed \1/10\ of an acre and the District Engineer determines that

the impacts are minimal. In this example, there was no material placed

below and waterward of the OHWM or HTL, therefore the cubic yard

(volume) limit was zero and not exceeded. Furthermore, the total

acreage was less than \1/10\ acres. NWP 18 may be combined with NWP 19

to authorize activities in navigable waters of the United States (i.e.,

Section 10 waters). NWP 18 is issued as proposed.

19. Minor Dredging: The Corps proposed a modification to this NWP

to authorize, under section 404 of the Clean Water Act, the incidental

discharges associated with the dredging activities in navigable waters

of the United States. This was necessary after the Corps revised the

definition of ``discharge of dredged material'' at 33 CFR 323.2(d) to

clarify when the Corps regulates incidental discharges of dredged

material associated with excavation activities. (See August 25, 1993,

Federal Register, 58 FR 45008.) This clarification does not affect the

number and type of activities that are regulated under this NWP. Many

commenters supported keeping the quantity limit at the existing level.

We agree and continue to believe that the 25 cubic yard limit is

acceptable. We have allowed and will continue to allow NWPs 18 and 19

to be used for the same project in section 10 navigable waters of the

United States. NWP 19 cannot be used in section 404-only waters. We

believe that the requirement of NWP 19 that prohibits excavation in

wetlands, coral reefs, sites supporting submerged aquatic vegetation,

and anadromous fish spawning areas, and the requirement of NWP 18 that

requires notification in special aquatic sites, including wetlands, and

the requirement of NWP 18 that requires notification in excess of 10

cubic yards, will ensure that impacts resulting from these activities

will be minimal. For example no more than 35 cubic yards could be

excavated from navigable waters of the United States without a

notification to the Corps. Furthermore, no activity between 35 and 50

cubic yards of combined excavation and discharge could occur without a

notification to the Corps and a Corps determination that the adverse

effects would be minimal. NWP 19 is issued as proposed.

20. Oil Spill Cleanup: The Corps proposed no changes to this NWP.

One commenter suggested a regional condition to require that activities

be conducted in conformance with the National Response Team Integrated

Contingency Plan Guidance. Even though this guidance is used to assist

an applicant to develop one plan to satisfy several applicable laws, it

is strictly voluntary on the applicant's part to develop one

consolidated response plan. The Corps believes it is most important to

verify that the response is conducted in accordance with the Spill

Control and Countermeasure Plan required by 40 CFR 112.3 and any

existing state contingency plan, and that the regional response team

(if one exists) concurs with the proposed containment and cleanup

effort. This NWP authorizes the structures and fills used to effect the

oil spill cleanup. Other Federal and state agencies have lead

responsibility to administer oil pollution laws. NWP 20 is reissued

without change.

21. Surface Coal Mining Activities: The Corps proposed the

consideration of expanding this NWP for mining activities on previously

mined lands that have not been subject to restoration. Several comments

supported the proposed inclusion of previously mined areas and a few

expressed opposition. Some commenters stated that this proposal should

not apply to wetlands restored under the Surface Mining Control and

Reclamation Act (SMCRA) of 1977 or NWP 27. Another commenter questioned

whether the NWP applies to pre-1977 SMCRA. Comments about mitigation

presented a wide range of possibilities: Support for on-site mitigation

after completion of mining; mitigation ratio should be set at 1:1 on-

site as proposed; flexibility is needed to apply mitigation on-site

and/or off-site; and mitigate off-site before mining begins; mitigate

concurrent with mining. One commenter stated that restricting the

mitigation to on-site would economically stop a mining operation. Many

commenters opposed the bond, stating that this is already required by

the SMCRA and at least some state agencies.

The remining of abandoned areas requires application under Title V

of the SMCRA. As with new mining, the Office of Surface Mining (OSM)

coordinates such proposals with the Federal and state resource agencies

and determines whether or what mitigation is required. The Corps has

decided that specific language referencing remining abandoned mines is

not required within the nationwide permit text. The NWP, as worded,

will allow remining of abandoned mines. The Corps will strongly

encourage remining of abandoned mines where the wetlands are of low

value, rather than mining new areas with wetlands that were not

previously disturbed. The Corps will review the Title V application for

compliance with the NWP. The Corps will only require a bond for

mitigation when OSM or the state agency has not required a bond.

Requiring a bond in certain cases is consistent with existing policy.

(See 33 CFR 325.4).

One commenter expressed concern over the area impacted (i.e.,

ancillary activities). The NWP specifically applies only to the coal

excavation area. Additionally, any facilities, such as buildings, to be

placed in waters of the United States would require separate

authorization by the Corps.

Several commenters desired restrictions such as set-backs, no

stream relocations, no impacts to wetlands which would be difficult to

replace, and acreage limits. Another requested an exemption from

mitigation for certain chemical compositions of the wetland soil. We

believe that each case will be so specific that it is best reviewed

case-by-case.

A couple of commenters stated that the Corps was delegating its

authority to the OSM and that this NWP did not comply with section

404(e). Minimizing duplication of Federal regulation is one of the

goals of the President's Wetland Plan and is one of the principal

purposes of NWP 21. We believe that the Corps should not duplicate the

intensive review performed by OSM in coordination with other Federal

and state resource agencies. OSM complies with the same Federal

environmental laws, such as National Environmental Policy Act, Fish and

Wildlife Coordination Act, Endangered Species Act, and National

Historic Preservation Act as the Corps does in executing its regulatory

program. The Corps reviews the Title V information to assure that the

impact analysis and mitigation are in compliance with the Corps policy

and regulations. The NWP authorization is not valid until the mining

activity has been authorized by OSM or by a state with an approved

Title V program. To assure that the Corps receives a complete

application, we have revised the NWP to include a requirement for an

OSM or state-approved mitigation plan. NWP 21 is reissued with the

modifications described above.

22. Removal of Vessels: The Corps proposed no changes to this NWP.

However, a few commenters requested that the term ``minor fills'' be

the same as that for Nationwide Permit 18, and one commenter requested

that this NWP require a PCN that would specifically require contacting

the State Historic Preservation Officer (SHPO) to ensure against damage

to vessels potentially eligible for listing in the National Register.

Another commenter requested

[[Page 65889]]

notification to the SHPO since the Abandoned Shipwreck Act gives states

title to, and management authority of, certain shipwrecks.

The criteria described in Nationwide Permit 18 for minor discharges

of dredged or fill material could be used as a guide in evaluating the

environmental impacts, but is not meant to be a definition of ``minor

fill''. This term is intended to be subject to the DE's interpretation

on a case-by-case basis as a project is being evaluated. The existing

language of NWP 22 does not allow its use for any ship or vessel that

is listed or eligible for listing unless the district determines that

the activity complies with the National Historic Preservation Act. The

Corps will, in any particular case, coordinate with the SHPO regarding

historic properties, including concerns with regard to the Abandoned

Shipwreck Act. We believe that the restrictions within this NWP in

conjunction with General Condition 12 and the Corps regulations at 33

CFR 330.4(g), are sufficient to protect against damage to historic

properties. NWP 22 is reissued with no changes.

23. Approved Categorical Exclusions: The Corps proposed no changes

to this NWP. A few commenters supported expansion of Nationwide Permit

23 to cover state environmental program approvals, especially for flood

control work, and all emergency work by a public agency.

State programs are not required to comply with NEPA and states have

varying environmental protection programs. Therefore, the Corps cannot

base a nationwide permit on state approvals as NEPA Categorical

Exclusions (CE). Regional and programmatic general permits are

effective tools that can be developed at the district level for state

programs that meet or exceed the Federal CWA requirements. Emergency

work can normally be authorized under other nationwide permits such as

NWP 3 and 37, or the Corps emergency permit authority.

A few commenters requested the NWP be regionalized with regional

conditions and asked that districts publish public notices for proposed

CEs and lists of approved CEs. The Division Engineers have the

authority to add regional conditions to any nationwide permit and are

currently in the process of considering recommendations for conditions

on these nationwide permits. All CEs are available in the Federal

Register and we intend to make them available on our Internet homepage

which is currently being developed.

A number of commenters opposed continuation of the existing

nationwide permit. They stated that the permit is often misused,

especially by the Highway Departments. Most of these commenters called

for revision of NWP 23 to require periodic review (every 5 years at the

renewal of the general permit) and assessment of approved CEs (citing

new knowledge and outdated agency Environmental Assessments), limits on

the area of wetlands that may be impacted (similar to Nationwide Permit

26), and limiting (to 25-50 feet) or excluding stream channelization.

Some commenters called for excluding bridges and culverts in those

streams that support fish, and excluding stacked concrete slabs that

create low water dams.

The Corps does, upon being furnished a notice of an agency's CE,

solicit public comment, and review the CE for approval for

authorization by this nationwide permit. We may include conditions for

authorization as a part of that approval. This is an ongoing process

and the U.S. Coast Guard has recently updated their CEs and requested

approval for authorization under the NWP. RGL 96-1 has already been

issued for Coast Guard CEs and we will soon publish our findings and

determinations in the Federal Register. We will continue to monitor the

CEs approved for authorization under this nationwide permit and make

adjustments through changes in conditions, new approvals, and removal

of previously approved CEs when warranted. General Condition 4

prohibits substantial disruption of movement of aquatic life species

indigenous to the waterbody.

Some commenters called for not renewing Nationwide Permit 23 due to

misuse, violations of 404(e), and illegal delegation to other agencies

of the Corps determination of which projects are subject to Clean Water

Act review.

We believe the Corps current review process of the lead agency's

decision ensures that the CE is not misapplied. The Corps does not

necessarily approve all of an agency's CEs. Only those consistent with

the NWP program are approved. Furthermore, in the recent action on the

Coast Guard CEs, the Corps requires a PCN for some actions with the

potential to result in more than minimal impacts.

One commenter requested that we require a cultural resources

inventory before approving CEs.

Compliance with cultural resource requirements is the

responsibility of the lead Federal agency. CEs are developed in

accordance with NEPA. All other Federal environmental laws and

regulations, including the cultural resource and historic preservation

laws, must still be satisfied by the agency proposing the CE. NWP 23 is

reissued without change.

24. State Administered Section 404 Programs: The Corps proposed no

changes to this NWP and the only commenter providing comments specific

to the permit expressed support for this nationwide permit as written.

NWP 24 is reissued without change.

25. Structural Discharge: Corps proposed clarification that this

NWP may be utilized for general navigation purposes. A few commenters

recommended issuance of this NWP as proposed. One commenter stated that

this NWP should not be reissued because it has not been demonstrated

that the adverse environmental effects are only minimal, and that

individual permits provide greater protection to environmental

resources. We believe the impacts resulting from the portion of these

projects regulated by the Corps are typically very small and localized.

Any project can be further conditioned to ensure that adverse effects

are minimal or mitigated appropriately, if necessary. If it is

determined that any particular project would not qualify for this NWP

because adverse effects are not minimal, the DE can exercise

discretionary authority and instruct the applicant on the procedures to

seek authorization under an IP.

One commenter requested clarification of the significance of

changing the previously worded ``piers and docks'' to ``mooring

cells''. Another commenter stated that ``docks and piers'' should be

specifically included, noting the current authorization does include

such wording.

We recognize that piers and docks are not mentioned in this NWP;

however, they would be covered if their construction methods entailed

discharge of material into tightly sealed forms or cells. We do not

feel it necessary to specifically include piers and docks, because

their construction often requires driving piles, which typically does

not require a Section 404 permit. The structure itself may require a

Section 10 permit if located in navigable waters of the United States.

One commenter stated that this NWP should include well pads for

monitoring, and surveillance wells used for monitoring pollutants and

groundwater parameters of aquifers.

We do not believe it is necessary or appropriate to include such

uses under this NWP, because Nationwide Permit 18, covering Minor

Discharges, would be more suitable.

One commenter noted that this NWP does not propose any limitations.

Several others recommended limitations

[[Page 65890]]

on this NWP, including no more than 20 mooring cells, size thresholds

such as less than 8,000 square feet for pile-supported structures, or

spacing between piles of at least six feet. Two commenters stated that

this NWP should authorize the side-casting of material for placement of

the forms or construction of pile caps. One commenter stated that

mechanized landclearing for access to the project site for the

placement of structural members should be authorized by this NWP. One

commenter recommended that this NWP specifically not authorize river

boat mooring cells for gambling purposes.

We believe that the actual footprint of project impacts typical of

the types discussed in the NWP are limited sufficiently such that

further limitations are not necessary. However, each district may

implement special conditions or regional general conditions on a case-

by-case basis as deemed necessary. We agree that side-casting of

material for construction of pile caps is appropriate provided it is

kept to the minimum necessary, that material is not placed in such a

manner that it is dispersed by currents or other forces, and that

preconstruction contours are maintained. However, we do not believe

that mechanized landclearing to access the project site should be

authorized under this NWP. Finally, we do not see the significance of

differentiating between mooring cells used for general navigation

purposes versus those that may be used for mooring of gambling vessels.

NWP 25 is reissued with the proposed clarification.

26. Headwaters and Isolated Waters Discharges: The Corps proposed

two options to change the previous thresholds associated with this NWP

and committed to regional conditioning of the NWP to ensure minimal

adverse effects. Numerous comments were received and are addressed by

categories in the following text. Based on the recommendations from the

public and other agencies, as well as the Corps internal review of

implementation of NWP 26 over the past 5 years, we have made

substantial changes to the permit. We have reduced the thresholds of

NWP 26 to \1/3\ and 3 acres, added a limitation for linear waterbodies

of 500 linear feet, and stated that we believe that most projects above

\1/3\ acre will result in mitigation requirements to offset adverse

effects to the aquatic environment. We believe that these additional

limitations that we have placed on NWP 26 will greatly improve the

environmental protection afforded by Corps review of projects under

this NWP and will better ensure that no more than minimal adverse

effects will occur. In addition to the substantial limitations that we

have placed within the terms and limitations of the NWP 26 at the

national level, we are directing our districts to carefully evaluate

the aquatic systems in their districts and, working with the Corps

divisions and the other Federal and state agencies, add additional

limitations as necessary for added protection of the aquatic

environment. These changes are detailed below in our discussion of the

comments we received.

General: More than 500 commenters provided comments specifically

addressing NWP 26. Numerous commenters expressed opposition to NWP 26,

expressing concern that NWP 26 authorizes activities that are not

similar in nature and activities that have greater than minimal impacts

both individually and cumulatively, concluding that NWP 26, in many

cases, is therefore, ``illegal''. Many of these commenters believe that

the NWP should be deleted while many acknowledge a necessity for such a

nationwide permit, but feel that the NWP must be modified to respond to

the growing concerns for the potential cumulative effects resulting

from activities authorized by this permit.

Many of these commenters also expressed concern that wetlands

impacted by NWP 26 (those above headwaters and isolated wetlands) are

as valuable, if not more so, than other wetlands to which NWP 26 does

not apply. These commenters state that there is no scientific evidence

that supports the concept that these wetlands are of less value and

refer to a 1995 National Academy of Sciences' National Research Council

Report, which states: ``the scientific basis for policies that

attribute less importance to headwater areas and isolated wetlands than

to other wetlands is weak.'' Some of these commenters also commented

that there is no scientific basis for the threshold limits.

Numerous commenters expressed the view that the NWP has worked

well, that there is no evidence to indicate that it is resulting in

more than minimal adverse effects and that the loss or further limiting

of NWP 26 would result in increased regulatory burdens on the public,

less regulatory certainty, unacceptable work load increases for the

Corps, increased processing times, project delays, and an overall

lessening of the regulatory program's ability to protect waters of the

United States.

The Corps proposed 3 options for acreage limits that would define

when a PCN must be submitted. These options were:

Option 1: 1 to 10 Acres (no change)

Option 2: \1/2\ to 5 acres

Option 3: \1/3\ to 3 acres

Thresholds: Approximately 70% of the more than 400 comment letters

on these threshold options expressed a preference for Option 1, no

change in the thresholds of 1 and 10 acres.

Many of these commenters suggested that a lowering of the

thresholds would result in a lessening of the practice by developers of

minimizing their wetland fills to fit under the thresholds because the

thresholds would be too low to meet. The result then being, that they

would be forced into the PCN or individual permit process and would

apply for non-minimized fills. Many commenters also estimated that the

Corps work load would increase significantly, thus causing the Corps to

be less effective in its mission to protect wetlands. A few commenters

believed that in those cases where mitigation is required for all fills

(often a state or county requirement), that the effect of causing

developers to reduce fill areas to even smaller fills (by lowering the

threshold to 1/3 of an acre) could be more, smaller mitigation sites.

A few commenters preferred changing the thresholds to option 2.

Approximately 30% of those commenting on this subject preferred

option 3, (\1/3\ & 3 acres). Most of these commenters expressed the

view that the current thresholds are allowing more than minimal adverse

effects and that the lower levels would better assure that the NWP

would not result in more than minimal adverse effects.

A few commenters recommended that the thresholds be increased to

enhance flexibility and program efficiencies.

The Corps acknowledges the concerns, expressed principally by

natural resource agencies and environmental groups, for the potential

level of adverse effects resulting from NWP 26 in its present form. The

Corps also acknowledges the concerns of the regulated public for the

potential lessening of regulatory certainty and flexibility in the

program through further limitation of the scope of NWP 26.

The Corps agrees that the level of cumulative adverse effects under

NWP 26 must be reduced and more effectively mitigated. We will later

discuss the manner in which the Corps has addressed the concerns

regarding impacts to the aquatic environment. We also believe it is

important to understand the history and derivation of the Corps NWP

program.

In 1977, the Corps developed the headwaters and isolated waters

[[Page 65891]]

nationwide permit (NWP 26) as we extended section 404 jurisdiction to

all waters of the United States (including isolated and headwaters

areas). Prior to 1977, the Corps did not require Section 404 permits

for discharges of dredged or fill material into waters in these

geographic areas. Over the past 19 years NWP 26 has been revised in an

attempt to ensure that activities are not authorized under NWP 26 if

such activities would result in more than minimal adverse effects,

either individually or cumulatively, to the waters of the United

States, including wetlands. While the Corps had to assure compliance

with this statutory requirement (Clean Water Act section 404(e)), it

also had to consider the environmental and programmatic implications of

an extremely heavy regulatory workload.

The most recent data and scientific literature indicate that

isolated and headwater wetlands often play an ecological role that is

as important as other types of wetlands in protecting water quality,

reducing flood flows, and providing habitat for many species of fish

and wildlife. For example, in many parts of the Nation, isolated and

headwater wetlands comprise a significant portion of the functioning

wetlands that remain in existence. As previously noted, the National

Academy of Sciences concluded in its 1995 report on wetlands that there

is no scientific basis for policies that attribute less importance to

headwater areas and isolated wetlands than to other wetlands.

In light of our internal evaluation of NWP 26, and a careful

consideration of all comments regarding its reissuance, we have

determined that a modified approach to NWP 26 and eventual replacement

of NWP 26 is necessary in order to ensure that in the future no more

than minimal adverse effects occur to the waters of the United States,

both individually and cumulatively. This determination is supported

fully by the majority of comments from the public and other Federal and

state resource agencies. Therefore, NWP 26 will be immediately modified

and eventually replaced with a new approach to authorizing activities

with minimal adverse effects. This new approach will take into account

the Corps workload and a desire to reduce unnecessary regulatory

burdens.

The approach that we are implementing today will ensure that only

activities resulting in minimal adverse effects go forward under NWP

26, while maintaining flexibility and expedited permitting for

applicants proposing such projects. Based on the desire to develop a

more specific data base on the specific types of activities authorized

under NWP 26 and an improved data base on impacts of projects

authorized under NWP 26, we have determined that a phased approach to

NWP 26 is necessary. In this regard, we are, with this notice, issuing

a modified NWP 26 for a period of two years rather than the normal 5

year period for all other nationwide permits. During this two year

period, which starts with today's date, the Corps will collect

additional data on the types of activities regulated and develop,

propose, and issue new nationwide permits to replace the revised NWP

26. Although we recognize the ecological importance of isolated and

headwater wetlands and the potential for impacts to these resources by

NWP 26, we believe it is necessary to reissue NWP 26, in its more

restrictive and environmentally sensitive form, during the two year

phase out period to ensure fairness to the regulated public and to

allow for development of activity specific replacement NWPs. The

replacement permits, which will be activity specific, will be published

for public review and comment approximately 18 months from today

(approximately May 1998). The Corps is entering this initiative with a

completely open view to the final outcome and would welcome any

comments from the public over the next six months regarding specific

categories of activities that should be considered for new nationwide

permits. Such comments should be directed to the address listed in the

ADDRESS section of this notice. For example, NWP 29 is an activity-

based NWP for single family residences with a \1/2\ acre fill

limitation. Another example could be fills associated with the

expansion of existing commercial developments, with acreage limit

specific conditions, and a PCN to evaluate the potential for more than

minimal impacts. In taking this approach, the Corps will evaluate the

types of activities that are currently authorized under NWP 26 and

identify appropriate limitations for the activity-specific NWPs to

ensure that the ``minimal adverse effects'' requirement of section 404

(e) is met. It is also important to note that the public will have an

opportunity to formally comment on the proposed replacement permits

once they are officially proposed in approximately 18 months.

During the two year period that may be required to issue activity-

specific permits to replace NWP 26, we believe that certain

modifications to NWP 26 are necessary. Thus, we are changing the

threshold limits to \1/3\ and 3 acres. Using these thresholds, the

maximum fill allowable under NWP 26 will be 3 acres. Discharges over

\1/3\ acre will require a PCN. Although a number of projects between 3

and 10 acres will now need individual permits, we believe that the

increase in workload will be manageable. Moreover, a key element of the

Corps' ability to manage the increased workload is the requirement of a

Corps-only PCN for fills between \1/3\ and 1 acre. While we do not

believe that the notification of other agencies is necessary for

activities in the \1/3\ to 1 acre range, we will provide quarterly NWP

26 data to the Federal resource agencies for their programmatic review.

The Corps will also coordinate its evaluation of those proposed

activities that involve issues relevant to other Federal agency

expertise (e.g., endangered species, water quality standards). In

addition, the Federal resource agencies will be provided a copy of the

PCN for fills over 1 acre and given an opportunity to comment to the

Corps before the work is verified as authorized under NWP 26.

The Corps will continue to work closely with Federal and state

resource agencies to add necessary regional conditions and procedures

to the revised NWP 26. As with all nationwide permits, we will

emphasize the requirement to avoid and minimize impacts on-site.

In summary, the revisions proposed today for NWP 26, and its

planned replacement with activity-specific general permits, recognize

fully the requirement to ensure that adverse effects to the waters of

the United States are no more than minimal and the need to provide an

expedited review process for truly minor activities. In taking the

phased approach, we allow for an orderly transition from the previous

NWP 26 to a set of activity-specific replacement nationwide permits. It

is our intent to make this change in a manner that minimizes disruption

and confusion for the regulated public, while at the same time

improving environmental protection.

To further ensure that geographical areas or waters do not receive

greater than minimal adverse effects through the excessive use of NWP

26, we are with this notice directing district and Division Engineers

to carefully review areas under their authority with a view toward

additional regional limitations to NWP 26. We believe that every

district has high value aquatic areas where NWP 26 must be further

limited or revoked.

Further, Division Engineers may revoke the NWP for specific

geographical areas. District engineers

[[Page 65892]]

also have the authority to exercise discretionary authority and require

an IP on a case-by-case basis when they determine that the ``minimal

adverse effects levels'' will be exceeded. Furthermore, we are

directing district and Division Engineers to further reduce impacts by

requiring mitigation for most projects from \1/3\ to 3 acres through

the PCN process. In most cases, mitigation for impacts below 1 acre

will be most beneficial through mitigation banks and ``in lieu fee''

programs. In lieu fee programs allow permittees to obtain mitigation

through funds paid to groups who will use these funds to restore,

create, enhance, and preserve wetlands. Such groups include states,

counties and land trusts. Such in lieu fee approach is currently in

place and very successful in the state of Ohio. Our Huntington

district, in conjunction with the state, established a fee structure

for NWP 26 authorizations. The fees go to Ohio Department of Natural

Resources and are used to acquire, restore and manage former wetlands.

Review Period: A large percentage of those who commented on the

proposal to increase the 30 day pre-construction notification period,

expressed opposition to the proposal. They commented that 30 days is

adequate and that an increase in the review period would only result in

reviewers delaying their review rather than conducting more extensive

reviews; that more extensive reviews, if conducted, are unnecessary for

projects of NWP 26 magnitude, and that the proposal would result in an

unnecessary extension in the processing time of what is currently a

good expedited process. Approximately 30% of the commenters felt that

the increase should be implemented in order to provide for more

thorough review. One commenter recommended the elimination of the ``de

facto'' authorization provision, because there is no logic to allowing

the elimination of wetlands as a result of administrative situations.

Having given full consideration to the comments received and

discussed the topic at length with the resource agencies involved, we

have concluded that it is necessary to extend the review period to 45

days while maintaining the ``de facto'' authorization provision.

Increasing the review period by only 15 days will, we believe, allow

adequate and efficient review of the increased number of NWP 26

applications expected due to the lowering of the PCN thresholds, and

will not place an unfair burden on the regulated public. The de facto

authorization provision is considered necessary to provide a reasonable

control on the review period for these relatively minor actions and to

provide as much regulatory certainty as possible to the regulated

public.

Regionalization: Many Commenters supported the concept of

regionalization of the NWPs by districts either because of the

opportunity to provide additional protection to sensitive ecological

areas, as well as more appropriately to provide protection for

regionally differing environments.

Many commenters were opposed to the concept of regionalization of

the NWPs by districts because of concern that districts would,

unnecessarily, further limit the applicability of the NWPs when they

have been found by the Corps to authorize less than minimal adverse

effects nationwide.

The Corps believes there are benefits to be gained through regional

conditioning of NWP 26, both for natural resource protection and for

the regulated public. Guidance being provided to the districts and

divisions will require that the districts provide opportunity for full

public review and comment in the process for establishing regional

conditions, and will require that they consider modifications of the

acreage limits and limitations of use, based on types of aquatic

resources and activities. They will also consider potential impacts to

the regulated public, to district workloads, and the ability of the

district to effectively implement the regulatory program. Further

definition of the permit, through regional conditions, will provide the

regulated public with increased certainty and predictability while at

the same time further ensuring against use of the permit under

circumstances that may cause greater than minimal adverse effects. The

fact that districts and divisions do regionalize NWP 26 through

regional conditions to protect certain aquatic systems is one of the

reasons that the Corps has determined that only minimal adverse effects

occur nationwide.

Notification: Several commenters felt that all actions permitted

under NWP 26 should be reported to the Corps to provide the Corps with

full knowledge of the extent and impacts of such actions. In general,

these same commenters also suggested that the Corps keep more extensive

records of this information and make it readily available to the

general public.

One commenter expressed concern for the lack of data collected by

the Corps with regard to the use of NWP 26 and the corresponding lack

of analysis to support the determination that NWP 26 results in no more

than minimal adverse effects. A few commenters expressed the belief

that the Corps is not fulfilling an earlier commitment to monitor and

evaluate the impacts of NWP 26.

The reduction of the PCN threshold from 1 to \1/3\ acre will

significantly increase the percentage of activities reported to the

Corps and provide an adequate level of information for continued

monitoring of authorizations under NWP 26. Notification will have

essentially three threshold limits. We have established a reporting

requirement for all impacts up to the minimum threshold of \1/3\ acre.

This report, which will include basic information such as the name of

the permittee, location of the activity, description of the work, and

the types and size of the impacted area, will be required within 30

days of the completion of the work. We are encouraging support of, and

participation in, this important information gathering process so the

Corps can better determine ways to protect wetlands in a fair, flexible

and effective manner. Next, we will require a ``Corps-only''

notification for impacts between \1/3\ and 1 acre. These PCNs will be

reviewed by the Corps to assure compliance with permit conditions, and

to determine what level and type of mitigation should be required.

Finally, authorization under NWP 26 will require full resource agency

coordination under the notification procedures for impacts between 1

and 3 acres. For all the PCNs, the Corps review will ensure that no

more than minimal adverse effects will occur and that appropriate

mitigation will be required.

The Corps collected data from its district offices on the use of

all NWPs for Fiscal Year 1995, including NWP 26. The data shows that

13,837 activities were authorized by NWP 26, impacting approximately

5020 acres of wetlands, with an average of 0.36 acres of impact per NWP

26 authorization. The Corps received approximately 5809 acres of

mitigation for these impacts, yielding a mitigation ratio of

approximately 1.15:1. To ensure continued monitoring of NWP 26 and all

other NWPs, the Headquarters office will begin collecting quarterly

data from the field beginning in the second quarter of fiscal year

1997. The data parameters will include, at a minimum, the use of the

NWPs, both actual and estimated (for those with non-reporting

thresholds), impact acreage, resource types, geographic locations

(e.g., counties) and mitigation received. These parameters will be

further set forth in guidance to the districts following the

publication of this Federal Register notice and after coordination with

the other Federal resource agencies.

[[Page 65893]]

Mitigation: Several commenters suggested that a threshold be set

for requiring mitigation. Some recommended a threshold of one acre be

set, above which mitigation would be required and one recommended

mitigation be provided at a 2:1 ratio. A review of NWP 26 verifications

provided in fiscal year 1995 indicates that more than an acre of

mitigation was provided for every acre filled. We believe that this

fulfills the national goal of no net loss in wetlands. We do not

believe it is appropriate to require mitigation in every case or at a

standardized ratio nationwide. We believe mitigation determinations are

better established on a local and/or case-by-case basis. Therefore, we

have not required a specific ratio as a general condition of NWP 26.

However, we do believe that most actions involving fill of 1/3 acres or

more will have some level of mitigation, based on the Corps

determination of aquatic functions and values lost. Corps districts may

establish fixed ratios for particular waterbodies or specific types of

waters in their areas. Districts may also set specific in lieu fee

schedules within their areas.

Many commenters raised concerns that, by applying compensatory

mitigation in the context of a NWP, the Corps authorizes activities

that, but for the mitigation, may have more than minimal adverse

environmental effects. Those commenters were concerned that the CWA

requires that only activities with minimal effects may be authorized by

a general permit. Activities that have more than minimal adverse

effects are subject to the individual permit process and the associated

analysis of alternatives, individual public notice procedures, and

other aspects of individual review that help to ensure that potential

adverse effects are fully avoided and minimized before any activity is

approved.

Given these concerns, the Corps will be considering whether or not

modifications to the mitigation provisions of the regulations are

appropriate and will be meeting with other Federal agencies to discuss

this issue. In the interim, the Corps is seeking specific comment on

the use of compensatory mitigation in the context of the Nationwide

Permit program and any recommendations for modification to the

mitigation provisions. Should the Corps determine that revision to this

policy is appropriate, a rulemaking process to change the regulations

at 33 CFR part 330 may be necessary. This process would include notice

and full opportunity for public participation.

Subdivisions: One commenter recommended deleting all wording on

subdivisions except that which clarifies the single-use applicability

of NWP 26. More specifically the commenter recommends deletion of the

exemption provisions of the NWP 26 subdivision rules.

One commenter suggested that ``commercial,'' ``industrial,'' and

``office'' subdivisions should not be held to the same restrictions as

residential development because of their more extensive level of

planning and design.

One commenter suggested that the October 5, 1984, date for

subdivision exception be changed to January 21, 1992.

We have evaluated these comments and continue to believe that the

subdivision language in NWP 26 is appropriate. We do not agree that, as

a general matter, commercial office or industrial projects are

necessarily subject to better planning than many large residential

developments.

Environmental Impact Statement: A number of commenters recommended

that an Environmental Impact Statement (EIS) or study be conducted

prior to the re-issuance of NWP 26, because of their perception that

the use of the NWP is causing or will cause extensive impacts to

wetlands.

The Corps collected data from its district offices on the use of

all NWPs for Fiscal Year 1995, including NWP 26. These data show that

13,837 activities were authorized by NWP 26 impacting approximately

5,020 acres of wetlands, with an average of 0.36 acres of impact per

NWP 26 authorization. The Corps received approximately 5,809 acres of

mitigation for these impacts, yielding a mitigation ratio of

approximately 1.15:1. To ensure continued monitoring of NWP 26 and all

other NWPs, the Headquarters office will begin collecting quarterly

data from the field beginning in the second quarter of Fiscal Year (FY)

1997. The data parameters will include, at a minimum, the use of the

NWPs, both actual and estimated (for those with non-reporting

thresholds), impact acreage, resource types, geographic locations

(e.g., counties) and mitigation received. These parameters will be

further set forth in guidance to the districts following the

publication of this Federal Register notice and after coordination with

the other Federal resource agencies.

Furthermore, the Corps has conducted an analysis of the

environmental impacts associated with the re-authorization of this

permit in compliance with the requirements of NEPA. This analysis has

been documented in an Environmental Assessment in accordance with NEPA

and resulted in a Finding of No Significant Impact in accordance with

NEPA. Therefore, an EIS is not required. The Corps believes that the

modified NWP 26 structure, along with regional conditions and case

specific discretionary authority, will ensure that adverse effects are

no more than minimal on a watershed basis. We believe that it is

inappropriate to simply sum the total acres of impact nationwide and

assume significant impacts. We believe that environmental effects must

be viewed on a watershed basis. With the substantial level of

mitigation required by the Corps for impacts to the higher value

wetlands, we believe that the environmental effects are not

significant.

Corps Workload: The Corps agrees with the majority of commenters

that a general permit, such as NWP 26, is necessary for fair,

effective, and efficient implementation of the Corps regulatory

program. Although the final NWP 26 we are issuing today will increase

the Corps workload, we believe that overall workload will remain

manageable.

To evaluate the effects of the current changes to NWP 26 on Corps

workload, we analyzed data collected during surveys of the Corps

districts during FY94 and FY95. Additionally, data from quarterly

reports was used to determine IP workload. We estimate that the changes

we are implementing today will increase the number of PCNs for NWP 26

(due to the lowering of the PCN threshold) by nearly 10,000, compared

to the estimated 2,700 evaluated in 1996. However, the vast majority of

the additional 10,000 additional PCNs will be Corps-only evaluations.

We estimate that the NWP 26 we are issuing will result in approximately

500 additional individual permits nationally (approximately a 10%

increase over Fiscal Year 1996). This increase will be due to

applicants requesting IP authorization of projects with impacts greater

than 3 acres, but which would have qualified for verification under the

old NWP 26 guidelines. The Corps would not be in a position to evaluate

all, or even a majority, of the activities we currently authorize under

NWP 26 without severe impacts to the Corps responsiveness to the

regulated public. The Corps regulatory program verified approximately

14,000 NWP 26 actions (including both those projects for which a PCN

was required and those for which no PCN was required but verification

was requested) and evaluated 5,040 IP actions in FY96. The workload

associated with the additional processing of just the 14,000 currently

verified NWP 26 cases as IPs, would increase the IP work load by a

factor of 4 to approximately 29,000. An IP

[[Page 65894]]

workload increase of this magnitude would render the program

ineffective, and would be a disservice to the American public and

overall environmental protection. Additionally, it is estimated by

Corps districts that another 20,000 NWP 26 activities were accomplished

during FY96 without the requirement for reporting to the Corps.

Complete elimination of NWP 26 would result in an increase in the IP

workload by approximately seven fold. This level of increase would

greatly extend the processing time for IPs, make Corps resources

unavailable for jurisdictional determinations and enforcement actions,

and severely reduce our ability to continue to protect the aquatic

environment.

Others: The Corps intends to initiate substantial improvements to

its data collection for all NWPs, particularly NWP 26. Furthermore,

during the two year period that NWP 26 is currently issued, the Corps

will collect data on the types of activities as well as impacts to the

aquatic environment and mitigation required. We are also instituting a

self reporting requirement for fills below 1/3 acre. The Corps will

continue to collect data on acres of impact and mitigation on a

permanent basis.

A few commenters recommended including a linear footage limitation

on headwater systems of 200-500 feet (consistent with other NWP

limitations) for application to linear wetlands and headwater streams.

We concur with this comment and have placed such a limitation on

NWP 26 for activities directly affecting (filling or excavating) more

than 500 linear feet of the stream bed of creeks and streams.

Therefore, no activity that adversely effects greater than 500 linear

feet of the stream bed can be authorized under NWP 26. The threshold of

500 linear feet was chosen to maintain consistency within the NWP

program (500 linear feet is the PCN threshold for NWPs 12 and 13). We

believe this additional limitation will enhance the program's ability

to ensure that projects with potentially greater than minimal impacts

will not be authorized under the NWP.

One commenter suggested that if wetlands are the driving force in

lowering acreage limits, then lower acreage limits should only be set

for impacts to wetlands and that it may be appropriate to raise the

acreage limitations for projects that affect only ephemeral drainage

areas. A few other commenters similarly recommended that the term

``headwaters'' include all naturally ephemeral streams regardless of

their mean annual flow, in that they only exceed the average annual

flow criteria because of high peak flows during the winter months,

which artificially skew the average flow rates.

We believe the existing definition for headwaters, as currently

written in 33 CFR 330.2(b), adequately provides for the consideration

of ephemeral tributary systems and accommodates this comment. In

addition, headwaters whether vegetated or not provide important flood

storage and water quality values to the overall aquatic system. If some

ephemeral drainage areas are truly low value the districts can develop

and issue regional general permits to expand coverage.

Several commenters expressed the concern that NWP 26 reduces the

program's protection of vernal pools and requested that the filling of

vernal pools not be allowed under NWP 26.

We believe the provisions for ``discretionary authority'' at both

the division and district levels is adequate to accommodate the

concerns for unique waters.

One commenter stated that the NWP does not meet the regulatory

requirements of the Natural Resources Conservation Service's Wetland

Conservation Provisions (Swampbuster program) and continues the

application of inconsistent standards on the communities regulated by

the section 404 and Swampbuster programs.

The Corps finds no conflicts between this NWP and programs

administered by the Natural Resource Conservation Service and is

working closely with the NRCS to provide consistency in our programs.

Since the standards for the two programs are different, as are the

program goals, some differences will exist. We are committed to

minimizing the differences to the extent possible.

One commenter stated that Corps districts differ in the

methodologies used to calculate or determine where the ``5 cubic feet

per second'' point is on waterways and that the methodology should be

standardized. The commenter also recommended that there be a designated

record keeping method and that the information be distributed or made

available to the public.

We believe that the definition of headwaters is adequate to

establish consistency in determination methodologies. The determination

is normally an analytical one; however, abbreviated or simplified

estimating methods are considered appropriate on a regional basis. We

do intend to establish standard reporting methods for data collection.

One commenter felt that there is a need to clarify the definition

of ``single and complete project'' for this NWP, suggesting that the

permit should be applied differently (perhaps different thresholds) for

projects that differ in purpose and size.

The Corps has provided guidance to the field regarding the

definition of ``single and complete project'' and believes it would be

inappropriate and inconsistent to modify that guidance for this permit.

NWP 26 is designed to address minor filling activities with less than

minimal impacts. Neither the magnitude of the project, nor the level or

public interest, nor the nature of the applicant, are relevant

considerations to the decision on whether the project's adverse effects

are minimal. Our definition of ``single and complete'' project does not

allow piecemealing projects regardless of the type of project.

One commenter requested a definition of special aquatic sites.

The definition of ``special aquatic sites'' is provided in the

section 404(b)(1) Guidelines (40 CFR 230.3(q-1)). No further definition

is considered necessary for the purposes of this nationwide permit.

A few commenters recommended that the Corps coordinate all

applications with natural resources agencies, including applications

for activities under one acre in size.

The Corps believes that activities involving less than 1 acre of

waters of the United States are generally minor in nature, and that

multiple Federal agency review is not necessary. The Corps staff is

well trained in the biological and environmental sciences and is fully

qualified to assess potential impacts. The Corps experience with agency

response to the existing PCN for 1-10 acres indicates that the natural

resource agencies, which also have limited human resources, provide

very few site specific substantive responses at the lower end of the 1-

10 acre range. Thus, we would expect even fewer comments for projects

with impacts below 1 acre. Also, the additional administrative workload

associated with agency coordination would seriously impact the Corps

ability to focus on projects with greater impact.

A few commenters recommended the Corps strictly enforce the

requirement for all NWP 26 applicants to submit a wetland delineation

with the pre-discharge notification.

The Corps strives to implement the program in as reasonable and

flexible a manner as possible so as not to impose unnecessary burdens

on members of the regulated public. We do require wetland delineations

to the extent necessary to identify the resources being affected and

the necessity for adequate mitigation when appropriate. The level of

[[Page 65895]]

refinement of such wetland delineations is left to the discretion of

the districts on a case-by-case basis. NWP 26 is reissued with

modifications as discussed above.

27. Wetland and Riparian Restoration and Creation Activities: The

Corps proposed to modify this NWP to allow projects to occur on any

Federal lands. We also requested comments on whether to allow creation

of wetlands and their subsequent reversion on reclaimed surface coal

mined lands, to eliminate the 5 year window of reversion opportunity

and allow the reversion to occur at any time in the future, to allow

use of NWP 27 for any voluntary restoration/creation project, to

include enhancement as an option, and to require a written agreement in

all cases.

There were several commenters for and an equal number of commenters

against the proposed modification of the permit to allow projects to

occur on all Federal lands. One commenter felt that the proposed permit

would grant more flexibility on Federal lands. Another commenter felt

that the Corps should not require review and approval of an Operation

and Maintenance Plan for projects on Federal lands or carried out by

Federal agencies since the Corps does not review or approve such plans

for projects on private lands. We believe that all Federal agencies

should be encouraged to participate in wetland restoration and creation

projects and have modified the permit for all Federal lands. Because

the permit is limited to restoration, enhancement and creation

activities and because authorizations for those projects occurring on

Federal land will not provide the opportunity for reversion of the

wetlands without a permit from the Corps, we concur that an Operations

and Maintenance Plan approval is unnecessary and we have not included

this requirement in the final permit.

Several commenters supported the consideration of expanding the

permit to allow for the creation of wetlands and their subsequent

reversion on reclaimed surface coal mined lands, provided the wetlands

were voluntarily created under an OSM permit or an applicable state

program permit. A few were opposed to this idea. Some stated that

wetlands created due to hydrologic or topographic features of the

landscape that may occur during reclamation should not be excluded. One

commenter stated that the existence of a Surface Mining Control and

Reclaimation Act (SMCRA) permit document and a certification that

reclamation has been performed in accordance with permit requirements,

should be sufficient to document the fact that the wetland construction

was voluntary and non-mitigative. The Corps believes the potential for

gaining several thousand acres of additional created wetlands through

this provision warrants modification of the permit as outlined in t

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