II. General Comments
In the following discussion, where the comments and responses were the same as for the July 21, 1999, Federal Register notice, we referred to the July 21, 1999, Federal Register notice instead of repeating those responses.
Many commenters objected to the proposed NWPs for the following reasons: (1) The proposed NWPs are too complex; (2) the proposed NWPs are contrary to the Congressional intent of Section 404(e) of the Clean Water Act; (3) the proposed NWPs are contrary to the Administration's 1993 Wetlands Plan, which states that Federal regulatory programs should be fair, flexible, and effective; (4) the proposed NWPs are contrary to the 1998 Clean Water Action Plan, which states that duplication between Federal, state, and local agencies and Tribal governments should be reduced wherever possible; (5) the conditions of these NWPs will cause many activities with minimal adverse effects on the aquatic environment to be processed as individual permits; and (6) these NWPs will result in unnecessary and costly burdens on the regulated public, increase delays, and increase the Corps workload without providing any benefits.
We have reduced the complexity of these NWPs as much as possible by making the scope of applicable waters for most of the new NWPs the same and establishing similar PCN thresholds. In addition, we have eliminated the indexed acreage limits from NWPs 39 and 40 and established a 1/2 acre limit for these NWPs. However, some complexity is unavoidable because different activities in waters of the United States do not have the same effects on the aquatic environment and each NWP must have different conditions to address those dissimilar impacts. The new and modified NWPs are conditioned to ensure that only those activities that have minimal adverse effects on the aquatic environment are authorized by these permits.
The new and modified NWPs are not contrary to Section 404(e) of the Clean Water Act, because each NWP authorizes activities that are similar in nature, with terms and conditions to ensure that those NWPs authorize only activities with minimal adverse effects on the aquatic environment. These NWPs still provide an expedited authorization process when compared to the standard permit process, because the district engineer must respond to the applicant within 45 days of the receipt date for a complete preconstruction notification (PCN). The 45-day PCN review period is shorter than the average evaluation time for individual permits, which was 100 days in FY 1999.
The new and modified NWPs comply with the President's 1993 Wetlands Plan, by allowing the Corps regulatory program to continue to provide effective protection of wetlands and other aquatic resources and avoid unnecessary impacts to private property, the regulated public, and the aquatic environment. The new and modified NWPs, including the new and modified general conditions, will more clearly address individual and cumulative adverse effects on the aquatic environment and ensure that those adverse effects are minimal. The new and modified NWPs address specific applicant group needs and provide more predictability and consistency to the regulated public. During the development of these NWPs, we recognized the concerns of the natural resource agencies and environmental interest groups for potential adverse effects on the aquatic environment resulting from activities authorized by these NWPs and the regulated public's need for certainty and flexibility in the NWP program.
Although certain aspects of the new and modified NWPs duplicate existing Federal, state, and local agency programs, such duplication is not contrary to the 1998 Clean Water Action Plan because it provides additional protection for the aquatic environment. While some state and local governments may address some of the same issues that are addressed by the NWPs and general conditions, there are many areas of the country where those issues are not addressed. Therefore, we believe it is necessary to add certain conditions to the NWPs to address potential adverse effects to the aquatic environment. For example, General Condition 9 requires a water quality management plan for certain NWP activities, unless the state or Tribal Section 401 agency requires an adequate water quality management plan. If the state or Tribe does not adequately address impacts to water quality through its water quality certification process, the district engineer can require additional measures such as stormwater management facilities and vegetated buffers to protect water quality. There are circumstances where the Corps needs to consider more stringent NWP requirements to ensure that the adverse effects to the aquatic environment are minimal, individually and cumulatively.
We agree that the terms and conditions of the new and modified NWPs may cause some activities with minimal adverse effects on the aquatic environment to be subject to the individual permit process. It is important to note that aquatic resource functions and values differ greatly across the country. When developing NWPs that have national applicability, there will be many parts of the country where the terms and limits of the NWPs will not authorize some activities that have minimal adverse effects on the aquatic environment. In these areas, district engineers can issue regional general permits in the future to provide expedited authorization for categories of activities with minimal adverse effects on the aquatic environment.
However, for six months after the publication date of the new and modified NWPs, district engineers will not issue regional general permits or letters of permission (LOPs) that explicitly authorize the same activities as the new and modified NWPs. This six month period will allow Corps districts to assess how effectively the new and modified NWPs authorize activities with minimal adverse effects on the aquatic environment, individually and cumulatively.
As required by the Energy and Water Development Appropriations Act, 2000, we have conducted a study of the workload and compliance costs of the NWPs, including the new general conditions, proposed in the July 21, 1999, Federal Register notice. The report for this study was finalized in January 2000. This report is available on the Internet at the Corps headquarters regulatory home page.
The workload and compliance costs study determined that the proposal published in the July 21, 1999, Federal Register would increase the number of standard individual permit applications received by the Corps by 4,429 per year. This and other workload increases would result in direct compliance costs incurred by the regulated public by an estimated $46 million annually. The study also examined indirect compliance costs (i.e., opportunity costs) of the July 21, 1999, proposal. The indirect compliance costs include the opportunity costs that result from increases in permit processing times and an estimate of foregone development value caused by the vegetated buffer requirement. The study estimates that the processing times for standard permits would steadily increase each year if the July 21, 1999, proposal were to be implemented and Corps budget resources are not increased. Within five years, the average standard permit processing time and number of backlogged permit applications would increase three to four times the levels measured in FY 1998.
The study also examined an alternative replacement NWP package that included lowering the acreage limit of the new and modified NWPs to 1/2 acre and withdrawing the three proposed new NWP general conditions. The alternative replacement NWP package would result in 40% fewer standard permit applications and 30% less direct compliance costs than the July 21, 1999, proposal would. After five years, the standard permit processing times and permit application backlog would be approximately 1/2 of that estimated for the proposal published in the July 21, 1999, Federal Register.
Many commenters objected to the Corps statement in the July 21, 1999, Federal Register notice that NWPs are optional permits, and that if they do not want to comply with the terms and conditions of the NWPs, then they can request an individual permit. Numerous commenters indicated that the new and modified NWPs are likely to result in decreased protection of the aquatic environment because of the higher numbers of individual permits and a greater workload for the Corps that would result if these NWPs were implemented as proposed. Some commenters also stated that the new and modified NWPs would also result in less protection of the aquatic environment because project proponents would have less incentive to build projects with smaller impacts to aquatic resources due to the strict acreage limits, notification requirements, and conditions. In contrast, one commenter said that developers will modify their projects to comply with the new and modified NWPs. Another commenter said that the costs to the Corps and regulated public that are imposed by the new and modified NWPs will be offset by the additional environmental protection provided by those NWPs.
NWPs provide an expedited Corps permit process for activities that have minimal adverse effects on the aquatic environment, individually and cumulatively. The NWPs are conditioned to ensure that only activities with minimal adverse effects are authorized. If a prospective permittee cannot comply with all of the terms and conditions of the NWPs, then he or she can request another form of Department of the Army (DA) authorization, such as a regional general permit or a standard individual permit.
We believe that the terms and conditions of the new and modified NWPs, including the 1/2 acre limit and 1/10 acre PCN threshold, are substantially more protective of the aquatic environment. The terms and conditions of these NWPs will ensure that only activities with minimal adverse effects on the aquatic environment are authorized by NWPs. Many project proponents will design their projects to comply with the 1/2 acre limit so that they can qualify for an NWP and receive authorization more quickly than they could through the standard permit process.
Many commenters stated that the new and modified NWPs would cause more than minimal adverse effects on the aquatic environment, individually and cumulatively. A few commenters said that the proposed NWPs do not comply with the requirement that general permits authorize only activities that are similar in nature. A number of commenters objected to the NWPs, because they provide no opportunity for the public to comment on individual projects.
We have developed terms and conditions for the new and modified NWPs to ensure that they authorize only those activities that result in minimal individual or cumulative adverse effects on the aquatic environment. The new and modified NWPs have PCN thresholds that require prospective permittees to notify district engineers prior to conducting activities that could result in more than minimal adverse effects. Most of the new and modified NWPs require notification to district engineers for discharges resulting in the loss of greater than 1/10 acre of waters of the United States. Division engineers can regionally condition these NWPs to lower notification thresholds, protect high value waters, or add additional restrictions to ensure that authorized activities result only in minimal adverse effects. District engineers will review PCNs on a case-by-case basis to determine if the adverse effects of the proposed work are minimal. If the adverse effects of a particular activity are more than minimal, the district engineer can either add conditions to the NWP authorization to ensure that the adverse effects on the aquatic environment are minimal or exercise discretionary authority to require an individual permit for the proposed work.
Each of the new and modified NWPs authorizes activities that are similar in nature, in full compliance with section 404(e) of the Clean Water Act. This issue was discussed in detail in the July 21, 1999, Federal Register notice (64 FR 39263), and we have not changed our position on this matter.
The intent of general permits, including NWPs, is to efficiently authorize activities that have minimal adverse effects on the aquatic environment. These activities are usually non-controversial, and would generate few or no comments from the public if they were subject to the standard permit process. Conducting full public interest reviews for activities with minimal adverse effects on the aquatic environment would substantially increase the Corps workload with little or no added value for the aquatic environment.
A large number of commenters objected to the proposed NWPs, stating that the new and modified NWPs would result in significant wetland losses. Many commenters said that the new and modified NWPs would undermine the Administration's goal of net gain in wetland acreage stated in the Clean Water Action Plan.
The new and modified NWPs will not result in significant losses of wetlands because they are conditioned to require prospective permittees to avoid and minimize impacts to waters of the United States on-site to the maximum extent practicable (see General Condition 19). In addition, the 1/2 acre limit will substantially reduce wetland losses. Compensatory mitigation is often required for activities that require notification to the district engineer, which offset losses of wetlands and other aquatic habitats so that significant losses of wetlands do not occur as a result of the NWP program.
As discussed in the July 21, 1999, Federal Register notice, the NWP program supports the Administration's goal of no net loss and is not contrary to the goals of the Clean Water Action Plan.
Several commenters objected to the proposed NWPs, stating that the NWPs place too much reliance on the assertion of discretionary authority by district engineers. They said that this process does not provide adequate protection of the aquatic environment. Another commenter stated that the proposed NWPs are inappropriately based on the intent of the prospective permittee, instead of potential impacts to aquatic resources. One commenter indicated that there is too much overlap between the new and modified NWPs, which would be confusing to permit applicants.
We disagree with these commenters, because the notification process allows case-by-case review of those activities that have the potential for more than minimal adverse effects on the aquatic environment. If the adverse effects of the proposed activity are more than minimal, then the district engineer can either add special conditions to the NWP authorization to ensure that the activity results in minimal adverse effects or exercise discretionary authority and require an individual permit. This process provides substantial protection for the aquatic environment.
The new and modified NWPs are activity-specific to satisfy the requirements of section 404(e) of the Clean Water Act. These NWPs address impacts to the aquatic environment, because they are limited to certain types of waters and are conditioned to ensure that the adverse effects resulting from the authorized work are minimal, individually and cumulatively. Since these NWPs are activity-specific, they have to reflect specific categories of work that are conducted by individuals of certain occupations.
Although there is some overlap between the activities authorized by the new and modified NWPs, such redundancy is necessary because our intent was to develop NWPs that authorize single and complete projects generally without having to resort to using multiple NWPs. For instance, NWP 39 authorizes most features of residential, commercial, or institutional developments, including road crossings and stormwater management facilities.
Several commenters stated that the NWPs should only authorize activities that are water dependent. One of these commenters said that limiting the NWPs only to water dependent activities would result in a regulatory program that is easier to administer and result in wetland gains. Some commenters indicated that the proposed NWPs do not comply with the Section 404(b)(1) guidelines.
We addressed the issue of water dependency in the preamble of the July 21, 1999, Federal Register notice and have not changed our position on this issue. The new and modified NWPs comply fully with the requirements for general permits in the Section 404(b)(1) guidelines (see 40 CFR 230.7).
A few commenters opposed the new and modified NWPs because they said that the Corps has failed to define the term "minimal effects" in an understandable or meaningful way. Many commenters stated that the minimal adverse effects criterion for the NWPs is too subjective and that an assessment procedure that considers the size of impacts and quality of waters must be used instead.
The term "minimal effect" as it is used in the context of general permits, including NWPs, cannot be simply defined. The terms and conditions of general permits are established so that those permits authorize most activities that result in minimal adverse effects on the aquatic environment. Preconstruction notifications are an important mechanism to ensure compliance with the minimal adverse effect requirement. Case-specific special conditions and regional general conditions are also important for addressing site-specific and regional concerns for the aquatic environment and ensuring that the NWPs authorize only activities with minimal adverse effects. For activities that require notification to the district engineer, the minimal adverse effects determination requires consideration of site-specific factors, such as the quality of waters that may be impacted by the proposed work, the functions and values of those waters, the geographic setting of the proposed work, and other factors. The minimal adverse effects criterion must be subjective, due to the complexity of the analysis required.
Two commenters suggested issuing the new NWPs with an expiration date of February 11, 2002, so that these NWPs will expire on the same day as the current NWPs. One commenter said that the new NWPs should be reevaluated when the current NWPs are reevaluated to determine if the use of all NWPs will result in more than minimal impacts. Two commenters recommended allowing NWP 26 to expire in January 2000 and not issuing the new NWPs until the next NWP reissuance in 2002. In the interim, individual permits would be required for activities that do not qualify for any of the current NWPs.
The new and modified NWPs issued today will expire on June 5, 2005 (i.e., five years from their effective date). However, when the current NWPs are proposed for reissuance in 2002, the new and modified NWPs are likely to be part of that proposal, so that all of the NWPs will be on the same five year cycle for review. We do not agree with the third comment of the previous paragraph. Allowing NWP 26 to expire prior to the effective date of the new and modified NWPs would be unfair to the regulated public.
Several commenters requested that the expiration date for NWP 26 should be extended to the expiration date of the current NWPs to ensure that NWP 26 is available until the effective date of the new and modified NWPs.
We do not agree that it is necessary to extend the expiration date of NWP 26 to February 11, 2002, because the new and modified NWPs will become effective on June 5, 2000. Keeping NWP 26 in place while the new and modified NWPs are effective would be contrary to the Corps goal of replacing NWP 26 with activity-specific NWPs.
One commenter suggested that the Corps clarify in this Federal Register notice that activities authorized by NWP 26 prior to the expiration date will continue to be authorized by NWP 26 for 12 months, provided the permittee has commenced construction or is under contract to commence construction. Another commenter recommended changing the 12-month grandfather provision for the NWPs to 24 months to provide adequate time for the completion of transportation projects.
A permittee who receives an NWP 26 authorization prior to the expiration date will have up to 12 months to complete the authorized activity, provided the permittee commences construction, or is under contract to commence construction, before the date NWP 26 expires (see 33 CFR 330.6(b)). Except as indicated below, this provision applies to all NWP authorizations unless discretionary authority has been exercised on a case-by-case basis to modify, suspend, or revoke the NWP authorization in accordance with 33 CFR 330.4(e) and 33 CFR 330.5(c) or (d). We do not agree that it is necessary to increase the time period for the grandfathering provision from 12 months to 24 months. However, anyone who submitted a NWP 26 PCN on or before March 9, 2000, will have until February 11, 2003, to complete the work, provided the permittee receives an NWP 26 verification and has commenced construction or signed a construction contract prior to February 11, 2002.
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