DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
Decision Document
Extension of Expiration Date of Nationwide Permit 26
PROBLEM: Nationwide permit (NWP) 26 is one of approximately 40 NWPs issued by the Corps of Engineers for nationwide use to authorize projects that have minimal adverse effects on the aquatic environment. Most of the NWPs authorize structures, work or discharges that are associated with specific types of projects, while NWP 26 covers fill activities in isolated waters and waters above the "headwaters" point on streams. NWP 26 has been the subject of much controversy, including whether or not it is in compliance with Section 404(e) of the Clean Water Act, because it is based on a category of waters. Section 404(e) states that nationwide permits may be issued "for any category of activities" if "the activities in such category are similar in nature".
The Corps is proposing to allow NWP 26 to expire and to replace it with new and modified nationwide permits (NWPs) that will authorize most of those activities with minimal adverse effects on the aquatic environment that are currently authorized by NWP 26. This will ensure that the NWP program is based on types of activities and continues to authorize work that has no more than minimal adverse effects on the aquatic environment. The proposed new and modified NWPs were published in the July 1,1998, FEDERAL REGISTER (63 FR 36040-36078). In the July 1, 1998, FEDERAL REGISTER and again in the October 9, 1998, FEDERAL REGISTER, the Corps proposed modifications of its normal process to issue, reissue or modify NWPs, which extended the date to issue replacement NWPs for NWP 26. This extension was proposed to ensure that there is adequate time to effectively involve the other agencies and the public in a new regional conditioning process. NWP 26 was scheduled to expire on December 13, 1998.
In the July 1,1998, FEDERAL REGISTER, the Corps requested comments on a proposal to extend the expiration date of NWP 26 from December 13, 1998, to March 28, 1999. When the Corps first established the December 13, 1998, expiration date for NWP 26, we did not contemplate the additional process for public coordination and development of regional conditions. [For complete discussion of the issues concerning the reissuance and modification of NWP 26, please refer to the December 13, 1996, issue of the FEDERAL REGISTER (61 FR 65874-65922) and the July 22, 1998, FEDERAL REGISTER (63 FR 39276-39280).]
SUMMARY OF COMMENTS: In response to the July 1, 1998, FEDERAL REGISTER notice, comments were received on the proposed extension of the expiration of NWP 26 as well as comments on the larger proposal to issue new NWPs and modify existing NWPs. However, the deadline to comment on the extension of NWP 26 was July 31, 1998, while the deadline to comment on the new and modified NWPs was August 31, 1998. Approximately 305 commenters specifically referenced the extension of the expiration date of NWP 26. Among those, about 199 were in favor of the extension and 106 were against it. Of those in favor of the extension, almost all represented building, realty, mining or other organizations or state agencies. Of the respondents opposed to the time extension, about half represented environmental, civic or other organizations or state agencies.
Response to Specific Comments
1. Many of the commenters opposed to the extension stated that the Corps would be "breaking a promise" to revoke NWP 26. The Corps is not wavering in this commitment. The Corps has also committed to not allowing a gap between the expiration of NWP 26 and the issuance of the replacement NWPs. We continue our commitment to both the expiration of NWP 26 and to preventing the occurrence of a gap in NWP coverage. To meet both of these goals, it is necessary to extend the expiration date of NWP 26. This is due to the need to extend the issuance of the replacement NWPs to reflect the reality of the added public involvement process that must be completed; a process which allows for full consideration of comments, input from other agencies, and development of regional conditions.
2. Many of those opposed to the extension also stated that NWP 26 has been the "biggest source of wetland destruction" and that it does not comply with Clean Water Act (CWA) requirements for (nationwide) general permits to have minimal adverse effects and to authorize activities similar in nature. As explained in the July 22, 1998, FEDERAL REGISTER (63 FR 39276-39280), the Corps believes that NWP 26 complies fully with the CWA but that further clarity and consistency can be achieved with the proposed replacement and modified, activity based, NWPs.
3. Many of those opposed to the extension believe that it is contrary to the goal stated in the President's Clean Water Action Plan to gain 100,000 acres of wetlands per year by 2005. The Corps will contribute to that goal by requiring compensatory mitigation for most projects, including those that adversely affect more than 1/3 acre of wetlands and by improving the quality and consistency of that compensation. That effort is under way and will simply be further supported by the new and modified NWPs and regional conditions.
4. Commenters in favor of the extension stated that it is needed to prevent a lapse when no NWP is available to authorize projects that currently qualify for authorization under NWP 26. This could result in project delays and increased costs for applicants. The Corps agrees that such a lapse would result in unnecessary delays and costs for applicants and workload increases for the Corps.
5. Many commenters in favor of the extension requested that no specific expiration date be established, but rather that NWP 26 expire when the new and modified NWPs go into effect. They believe that the Corps previous record of tardiness and inability to meet deadlines also argues against establishment of an expiration date. They believe that an expiration date could result in pressure to complete the process without fully evaluating public comments and fully coordinating with other agencies. Some also believe that agency coordination could result in significant changes to the proposal, or even a decision to not issue new NWPs. Any of these outcomes could result in the need to extend NWP 26 again.
The Corps is committed to setting a schedule and meeting it, thus avoiding another extension. We recognize that the process is complex and not entirely predictable and we understand the desirability of setting an expiration date for NWP 26, which coincides with the date of implementation of the new and modified NWPs. This simultaneous expiration/implementation date would avoid the need to propose additional extensions due to delays, beyond the control of the Corps, in the process to issue the NWPs. However, we also believe that it is important to set a reasonable date that the public can rely on for planning purposes and to confirm our commitment to replacing NWP 26.
6. Several commenters requested removal of the 500-foot prohibition for filling or excavating linear feet of a streambed under NWP 26. However, that decision has been made previously and the Corps final decision to keep the limitation was published in the July 22, 1998, FEDERAL REGISTER (63 FR 39276-39280).
7. Several commenters questioned whether there would be a "grandfather provision" for projects authorized by NWP 26 shortly before its final expiration date. As in the past, permittees who receive an NWP 26 authorization before NWP 26 expires will have up to 12 months to complete the authorized activity, provided they have commenced construction, or are under contract to commence construction, prior to the date NWP 26 expires (see 33 CFR 330.6(b)). This provision applies to all NWP authorizations unless discretionary authority has been exercised on a case-by-case basis to modify, suspend, or revoke the authorization in accordance with 33 CFR 330.4(e) and 33 CFR 330.5 (c) or (d).
DECISION: Extension of the expiration date of NWP 26 will ensure fairness to the regulated public by continuing to provide an NWP for activities in headwaters and isolated waters that have minimal adverse environmental effects until the proposed activity-specific NWPs that will replace NWP 26 become effective. If NWP 26 were to expire on the originally scheduled date of December 13, 1998, then most project proponents would have to apply for authorization through the individual permit process, although some activities might be authorized by other NWPs or regional general permits. For many activities with minimal adverse environmental effects, this would result in unnecessary burdens on the regulated public without added environmental benefits.
Due to the additional amount of time required to develop the proposed new and modified NWPs and regional conditions, the Corps is changing the expiration date of NWP 26 and the date the new and modified NWPs become effective to September 15, 1999.
/signed/
RUSSELL L. FUHRMAN
Major General, U.S. Army
Director of Civil Works
7 Oct 1998
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