General Terms and Limits of NWPs
One commenter stated that the acreage limits for the new and modified NWPs are too high. One commenter said that the NWPs should not have an acreage limit greater than 1 acre. Other commenters recommended maximum acreage limits of 1/3 acre and 1/4 acre. Several commenters suggested higher acreage limits for NWP activities in ephemeral streams located in the western United States. Two commenters said that the NWPs should have lower acreage limits for activities in certain types of wetlands, such as forested wetlands, playas, prairie potholes, vernal pools, kettles, pocosins, and bogs. Two commenters opposed the use of indexed acreage limits.
We have fully considered comments concerning acreage limits for the new and modified NWPs. To simplify the new and modified NWPs and ensure that these NWPs still authorize only activities with minimal individual and cumulative adverse effects on the aquatic environment, all of the new NWPs, except for NWP 41, will have a 1/2 acre limit. We have not imposed a 1/2 acre limit on NWP 41 because it only authorizes activities that benefit the aquatic environment. The acreage limits for specific NWPs are discussed in detail in the preamble discussions for each NWP. Division engineers can regionally condition these NWPs to lower acreage limits if there are specific concerns for the aquatic environment in a particular part of the country. We do not agree that there should be higher acreage limits on the NWPs for discharges of dredged or fill material into ephemeral streams in the western states, due to the national scope of the NWPs. However, Corps districts may issue RGPs with larger acreage thresholds in any local situations where they determine that the activity would result in no more than minimal adverse effects, individually or cumulatively. Division engineers can also regionally condition these NWPs to restrict or prohibit their use in certain types of high value waters of the United States. We have eliminated the indexed acreage limits from NWPs 39 and 40 because the simple 1/2 acre limit is a more effective way to ensure that these NWPs authorize only activities with minimal adverse effects and the vast majority of activities authorized by NWP 26 are below or slightly above 1/2 acre.
Many commenters indicated that the PCN thresholds for the new and modified NWPs should be 1/3 acre, instead of 1/4 acre. These commenters believe the difference between these two notification thresholds is too small to provide any value and that the lower PCN threshold will increase the Corps workload without providing any benefits. One commenter recommended providing more consistency in PCN thresholds for the NWPs. Several commenters stated that PCNs should be required for all activities authorized by NWPs and one commenter remarked that PCNs should be required for all discharges into special aquatic sites. One commenter said that lower acreage limits for the NWPs should result in fewer PCN requirements, not a lowering of PCN thresholds.
To further ensure that the new NWPs authorize only activities with minimal adverse effects on the aquatic environment, we have established a 1/10 acre PCN threshold for the new NWPs (except for NWP 41) and retained the original PCN thresholds for impacts to open waters, including streams. The notification threshold for NWP 14 has also been lowered to 1/10 acre. The 1/10 acre PCN threshold will result in a workload increase for Corps districts, but we believe that this increase will be minor, since many permittees request written verification of NWP authorizations, even when notification is not required. We believe that the PCN thresholds in the new and modified NWPs are consistent. There are circumstances, such as NWP 39 activities that impact open waters, where we believe it is necessary to review all proposed activities. However, we do not agree that is necessary to require notification for all NWP activities because most minor activities authorized by NWPs result in minimal adverse effects. Division engineers can impose regional conditions on NWPs to lower PCN thresholds in those geographic areas where there is the potential for more than minimal adverse effects on the aquatic environment. We do not agree that lower acreage limits should result in fewer PCN requirements because the notification process is necessary to address activities that might result in more than minimal adverse effects.
Several commenters suggested adding PCN requirements for discharges into ephemeral streams, not just perennial and intermittent streams, because ephemeral streams are important in arid regions. One commenter recommended reducing the 500 linear foot PCN threshold for perennial and intermittent stream impacts to 200 linear feet. One commenter said that PCNs should be required for all discharges into open waters to allow district engineers to determine appropriate vegetated buffer requirements.
Except for those NWPs that require notification for all activities or all discharges of dredged or fill material into open waters, we believe that notification requirements for stream impacts should be limited to perennial and intermittent streams, since discharges of dredged or fill material into ephemeral streams are likely to result in minimal adverse effects. In geographic areas where discharges of dredged or fill material into ephemeral stream beds may result in more than minimal adverse effects on the aquatic environment, division engineers can regionally condition these NWPs to require notification for these activities. For some of the new NWPs, we have replaced the 500 linear foot PCN threshold for stream bed impacts with a 300 linear foot limit. Division engineers can impose regional conditions to require a PCN threshold to address activities that may result in more than minimal adverse effects. With the exception of NWP 39, we do not agree that it is necessary to require notification for all discharges of dredged or fill material into open waters to determine vegetated buffer requirements. Vegetated buffers are not required for all activities authorized by the NWPs. District engineers will determine on a case-by-case basis when it is appropriate to require vegetated buffers next to open waters.
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