Procedural Comments
Many commenters stated that the Corps was required to hold public hearings on the draft NWPs proposed in the July 21, 1999, Federal Register notice. Some of these commenters said that the draft NWPs, especially the three proposed new NWP general conditions, represent a substantial change from the proposed NWPs published in the July 1, 1998, Federal Register notice and that these changes warrant an additional public hearing. Numerous commenters stated that the 75-day comment period was inadequate to thoroughly review and comment on the July 21, 1999, Federal Register notice. Some of these commenters said that the comment period should be extended because many districts did not post their draft regional conditions on their Internet home pages quickly enough.
We believe that we have fully complied with the public hearing requirements of the Clean Water Act. After the publication of the July 1, 1998, Federal Register notice, public hearings on the proposed new and modified NWPs were held across the country, including a public hearing in Washington, DC on August 19, 1998. The proposal published in the July 21, 1999, Federal Register was a modification of the original July 1, 1998, proposal to replace NWP 26 with activity-specific NWPs.
The 75-day comment period for the July 21, 1999, Federal Register notice provided adequate time for the public to review and comment on the draft NWPs. Within one week of the publication of the July 21, 1999, Federal Register notice, 31 out of 38 districts had posted their draft regional conditions on their Internet home pages, which allowed the public sufficient time to consider how the regional conditioning process affected the proposed new and modified NWPs. All Corps districts had posted their draft regional conditions on their Internet home pages by September 3, 1999.
A large number of commenters said that the Corps has completely ignored the economic and workload implications of the new and modified NWPs and general conditions proposed in the July 21, 1999, Federal Register notice. These commenters indicated that the economic impacts of this proposal would be substantial. Many commenters stated that the new and modified NWPs should not be issued or implemented until an economic and workload analysis study is completed.
As required by the Energy and Water Development Appropriations Act, 2000, we have prepared, through the Institute for Water Resources (IWR), a study of the workload and compliance costs that would be incurred by the July 21, 1999, proposal. The study report will be available on the Internet at the Corps headquarters regulatory home page. This study demonstrated that the proposal published in the July 21, 1999, Federal Register would result in substantial increases in workload and costs to the Corps and the regulated public. The proposed new and modified NWPs, including the three proposed general conditions, would result in a 50% increase in the number of standard permit applications received by the Corps each year. The proposed new and modified NWP package would increase the Corps costs for processing permit applications at the current levels of service by $11.5 million annually, nearly a 15% increase over FY 1998 program funding. In addition, the July 21, 1999, proposal would also increase the direct compliance costs incurred by the regulated public by $46 million annually. In contrast, the modifications to the new and modified NWPs issued today (i.e., the 1/2 acre limit and the revised floodplain condition) would result in impacts very similar to the IWR estimate for a 1/2 acre approach to the NWPs. That IWR estimate was 40% fewer standard permit applications than the July 21, 1999, proposal and 30% less in direct compliance costs. It is also important to note that the modified NWPs being issued today will protect the aquatic environment substantially better than the July 21, 1999, proposal would. These final NWPs are also less complex than the proposed NWPs, which will assist the regulated public.
Many commenters stated that the proposed new and modified NWPs, including the proposed general conditions, violate the Administrative Procedures Act (APA). These commenters said that the Corps has failed to provide an adequate administrative record and failed to demonstrate that the proposed acreage limits and other restrictions are necessary to provide protection for the aquatic environment. Some of these commenters stated that the Corps must provide an environmental basis for the acreage limits of the new and modified NWPs. Several commenters said that the proposal to issue new and modified NWPs to replace NWP 26 falls under the jurisdiction of the APA, because these NWPs are an agency statement of general applicability to implement, interpret, or prescribe a law or policy. A number of commenters stated that the proposed NWPs violate the APA because the schedule published in the July 21, 1999, Federal Register notice implies that the decision to issue these NWPs and new general conditions was predetermined and the schedule did not include adequate time for the Corps to carefully consider comments received in response to that notice.
The new and modified NWPs issued today comply with Section 404(e), which requires notice and opportunity for public hearing. The Corps notice and comment process is virtually the same as the APA process. We have prepared an adequate administrative record to justify the issuance of these NWPs. In addition, we have fully considered all comments received in response to the July 21, 1999, Federal Register notice to determine the terms and conditions for the new and modified NWPs. This included three extensions of the final NWP issuance in order to fully and fairly consider all comments.
The acreage limit for an NWP is established so that the NWP authorizes most activities that result in minimal adverse effects on the aquatic environment, individually or cumulatively. However, since NWPs are issued for national applicability, the terms and conditions of NWPs, including the acreage limits, must be restrictive enough to ensure that the NWPs authorize only those activities with minimal adverse effects on the aquatic environment, individually and cumulatively, across the country. The NWPs also contain notification requirements that provide district engineers with the opportunity to review certain activities to determine if those activities will result in minimal adverse effects on the aquatic environment. Aquatic resource functions and values vary considerably across the country. Therefore, the minimal adverse effects determination by Corps districts is based site-specific or regional criteria.
The acreage limits of the new and modified NWPs do not preclude any proposed activity from qualifying for a DA permit. If a proposed activity does not meet the terms and conditions of an NWP, then that activity could be authorized by other forms of DA permits. Regional general permits may be available to authorize certain activities that have minimal adverse effects on the aquatic environment based on local environmental conditions. The proposed work may also be authorized by individual permits, including letters of permission, if the activity involves more than minimal adverse effects on the aquatic environment.
We recognize that there are specific activities or classes of activities in areas of the country that will result in minimal adverse effects on the aquatic environment, but exceed the acreage limits of the new and modified NWPs. Corps districts can develop regional general permits in the future to authorize these activities.
Several commenters stated that the Corps is obligated to minimize regulatory burdens on small businesses, as required by Small Business Regulatory Enforcement Fairness Act of 1996. Two commenters said that the Corps is not in compliance with the Regulatory Flexibility Act because an "initial regulatory flexibility analysis" was not provided in the Federal Register notice. One commenter indicated that the Corps must comply with the Congressional Review Act. Another commenter said that the July 21, 1999, proposal to issue new and modified NWPs does not comply with Executive Order 12630, "Governmental Actions and Interference with Constitutionally Protected Property Rights," because the Corps has not identified the takings implications of the proposed NWPs.
The new and modified NWPs comply with the Small Business Regulatory Enforcement Fairness Act of 1996 because they provide an expedited authorization for activities in waters of the United States that have minimal adverse effects on the aquatic environment. We are not required to provide an initial regulatory flexibility analysis because we proposed to issue new and modified NWPs, not change our regulations. The Corps believes it is not required to submit the final new and modified NWPs to Congress pursuant to the Congressional Review Act, but as a matter of comity, we will submit the final NWPs to Congress. The new and modified NWPs will not result in the taking of private property because the NWPs provide an expedited authorization process for certain activities in waters of the United States that have minimal individual and cumulative adverse effects on the aquatic environment but require a Corps permit. If a proposed activity does not comply with the terms and conditions of an NWP, then the project proponent can request another form of DA permit, including regional general permits, letters of permission, or individual permits. Therefore, there are no takings implications for these NWPs.
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