SUPPLEMENTARY INFORMATION:
Background
In the December 13, 1996, issue of the Federal Register (61 FR 65874) the Corps reissued NWP 26 for a period of two years and announced its intention to replace NWP 26 with activity-specific NWPs. NWP 26 authorizes discharges of dredged or fill material into headwaters and isolated waters, provided the discharge does not result in the loss of greater than 3 acres of waters of the United States or 500 linear feet of stream bed. Headwaters are non-tidal streams, lakes, and impoundments that are part of a surface tributary system to interstate or navigable waters of the United States with an average annual flow of less than 5 cubic feet per second. Isolated waters are non-tidal waters of the United States that are not part of a surface tributary system to interstate or navigable waters and are not adjacent to such surface tributary systems to interstate or navigable waters.
In the July 1, 1998, issue of the Federal Register (63 FR 36040) the Corps published its initial proposal to replace NWP 26, including 6 new NWPs, modifying 6 existing NWPs, modifying 6 NWP general conditions, and adding one new NWP general condition. In the October 14, 1998, issue of the Federal Register (63 FR 55095), the Corps published a supplementary proposal to limit the use of the proposed new and modified NWPs in 100-year floodplains, impaired waters, and designated critical resource waters. In the October 14, 1998, Federal Register notice, the Corps also announced the withdrawal of the proposed NWP for master planned development activities and the extension of the expiration date of NWP 26 to September 15, 1999. The Corps also announced, in the October 14, 1998, Federal Register notice, its intent to solicit additional comments on the proposed new and modified NWPs and regional conditions proposed by Corps districts.
As a result of the comments received in response to the July 1, 1998, and October 14, 1998, Federal Register notices, the Corps made changes to the proposed NWPs and general conditions. The Corps also modified and reproposed the three new NWP general conditions to limit the use of NWPs in 100-year floodplains, impaired waters, and designated critical resource waters. The draft NWPs and general conditions were published in the July 21, 1999, issue of the Federal Register (64 FR 39252) for a 45-day comment period. Concurrent with this Federal Register notice, Corps districts proposed the latest drafts of their proposed regional conditions for the new and modified NWPs. In the September 3, 1999, issue of the Federal Register (64 FR 48386), the Corps announced that the comment period for the draft NWPs and general conditions was extended an additional 30 days to provide a 75-day comment period. The comment period for the July 21, 1999, Federal Register notice ended on October 7, 1999. In the September 3, 1999, Federal Register notice, the Corps also announced that the expiration date of NWP 26 was extended to January 5, 2000.
As a result of the number of substantial comments received in response to the July 21, 1999, Federal Register notice and the need for additional time to review those comments and develop the final NWPs and general conditions, the Corps issued another Federal Register notice on December 15, 1999 (64 FR 69994). This Federal Register notice announced a revised expiration date for NWP 26 and the process for accepting NWP 26 PCNs. The expiration date for NWP 26 was extended to April 14, 2000.
Since the schedule published in the December 15, 1999, Federal Register notice has changed, we are extending the expiration date of NWP 26 to June 5, 2000. NWP 26 PCNs submitted on or before March 9, 2000, (whether required or not) will be reviewed under the existing terms and conditions of NWPs. If those activities are authorized by NWP 26, their authorizations will be valid until February 11, 2002. If the activity is under construction or under contract prior to February 11, 2002, the permittee will have 12 additional months to complete the authorized activity. NWP 26 PCNs for activities that require notification which are submitted after March 9, 2000, will be reviewed under the new and modified NWPs or other types of DA authorization, such as individual permits. NWP 26 activities that do not require a PCN are authorized by NWP 26 until June 5, 2000. For those NWP 26 activities that do not require notification, the permittee has 12 months to complete the work if construction begins or is under contract before June 5, 2000.
The terms and limits of the new and modified NWPs are intended to authorize activities that have minimal adverse effects on the aquatic environment, individually and cumulatively. Most of the new NWPs authorize activities in non-tidal waters of the United States, excluding non-tidal wetlands adjacent to tidal waters. The acreage limit for most of the new and modified NWPs is 1/2 acre. For the new and modified NWPs, the Corps has established pre-construction notification (PCN) thresholds to ensure that any activity that potentially may have more than minimal adverse effects on the aquatic environment is reviewed by a district engineer on a case-by-case basis. Most of the new NWPs require submission of a PCN for discharges of dredged or fill material resulting in the loss of greater than 1/10 acre of waters of the United States. Regional conditions may be added to the NWPs by division engineers to lower notification thresholds.
The new and modified NWPs issued today will become effective on June 5, 2000. This Federal Register notice begins the 90-day Clean Water Act Section 401 water quality certification (WQC) and Coastal Zone Management Act (CZMA) consistency determination processes. Because of the changes to the proposed new and modified NWPs, including the general conditions, we have increased the normal 60-day WQC and CZMA consistency determination processes to 90 days. During this 90-day period, Corps divisions and districts will finalize their regional conditions for the new and modified NWPs.
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