Applicable Waters for the New and Modified Nationwide Permits
A number of commenters objected to the increased scope of waters in which the proposed NWPs published in the July 21, 1999, Federal Register could be used. One commenter stated that the NWPs should be used only in headwaters and isolated waters. Two commenters supported the use of the new and modified NWPs in non-tidal waters. Three commenters objected to prohibiting the use of the new and modified NWPs in tidal waters and non-tidal wetlands adjacent to tidal waters. One commenter stated that the Corps has not provided justification for excluding the new and modified NWPs from non-tidal wetlands that are adjacent to tidal waters and recommended that the Corps utilize the term "contiguous" instead of "adjacent."
We contend that limiting the new NWPs to non-tidal waters, except for non-tidal wetlands adjacent to tidal waters, provides adequate protection of the aquatic environment and helps ensure that these NWPs authorize only activities with minimal adverse effects. Regional conditioning of the new and modified NWPs by division engineers will provide additional protection by restricting or prohibiting the use of the new and modified NWPs in high value waters. General Condition 25 will also protect high value waters. General Condition 26 does not allow permanent, above-grade fills in the 100-year floodplain downstream of the headwaters.
We do not agree that the new and modified NWPs should be used in tidal waters or non-tidal wetlands adjacent to tidal waters. We have identified tidal waters as high value waters on a national basis. Non-tidal wetlands adjacent to tidal waters contribute to the ecological integrity of tidal waters and should not be subject to the new and modified NWPs. District engineers can develop regional general permits for discharges into non-tidal waters adjacent to tidal waters, if such regional general permits are needed for activities that result in minimal adverse effects on the aquatic environment, individually or cumulatively.
One commenter requested that the Corps define the term "adjacent" for the purposes of the new and modified NWPs. One commenter stated that the definition of the term "adjacent" at 33 CFR 328.3(c) is confusing for use in the NWP program and that the Corps needs to provide a definition that is easily understandable by the regulated public. This commenter also said that the NWPs should be limited to only those non-tidal wetlands that are both adjacent to and inundated by spring tides; wetlands landward of the mean high tide line would be considered as non-tidal wetlands adjacent to tidal waters and wetlands landward of the spring high tide line would not be considered adjacent to tidal waters. Two commenters asked the Corps to provide a clear explanation of the upstream limit of non-tidal wetlands adjacent to tidal waters and whether non-tidal wetlands miles upstream of tidal waters would be considered adjacent to those tidal waters.
For the new and modified NWPs, the definition of the term "adjacent" at 33 CFR 328.3(c) will be used. Since aquatic systems vary considerably across the country, we cannot establish more specific criteria at a national level to further define adjacency. District engineers will make appropriate determinations of adjacency, based on regional hydrologic conditions.
Wetlands located between mean high water and the spring high tide line are tidal wetlands because they are inundated by tidal waters (see 33 CFR 328.4(b)(1)). Non-tidal wetlands that are bordering, contiguous, or neighboring to tidal waters are considered adjacent to those tidal waters. The upstream limit of non-tidal wetlands adjacent to tidal waters is determined by the degree of influence of the tidal waterbody on non-tidal wetlands. Those non-tidal wetlands that exert direct hydrologic influence on tidal waters are considered adjacent to those tidal waters. For the purposes of the NWPs, non-tidal streams located upstream of the head of tide are not considered adjacent to tidal waters, although those streams eventually flow into tidal waters and are part of the surface tributary system. Wetlands adjacent to non-tidal streams are within the scope of waters for the new and modified NWPs.
One commenter stated that the new and modified NWPs should not authorize discharges into prairie potholes, playa lakes, or vernal pools. Another commenter said that the NWPs should not be used in rare and irreplaceable wetlands.
We do not agree that the new and modified NWPs should be subject to a national prohibition against discharges of dredged or fill material into prairie potholes, playa lakes, or vernal pools. Rare and irreplaceable wetlands have not been formally defined. General Condition 25 restricts activities in designated critical resource waters. Further, division engineers can regionally condition these NWPs to restrict or prohibit discharges into high value waters. For those activities that require notification, district engineers can exercise discretionary authority if the proposed work will result in more than minimal adverse effects on the aquatic environment.
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