Regional Conditioning
One commenter supported the Corps increased emphasis on regional conditioning to ensure that the new and modified NWPs authorize only those activities that result in minimal adverse effects on the aquatic environment. Numerous commenters objected to imposing regional conditions on the new and modified NWPs and stated that the Corps should rely on case-specific special conditions instead of regional conditions. Several commenters said that regional conditioning of the NWPs is unnecessary and contrary to the purpose of the NWPs, which is to authorize activities that have minimal adverse effects. Two commenters suggested that the Corps impose more stringent national terms and conditions on the NWPs instead of relying on regional conditions. One commenter indicated that the Corps reliance on regional conditions for the new and modified NWPs demonstrates that these NWPs authorize activities with more than minimal adverse effects. Two commenters said that regional conditions do not provide adequate protection for wetlands.
We do not agree that only case-specific special conditions should be added to NWPs. Regional conditions are more effective at ensuring that NWPs authorize only those activities with minimal adverse effects on the aquatic environment, individually and cumulatively. Regional conditions also benefit the regulated public by providing them with advance notice of additional NWP restrictions and promoting consistency in the implementation of the NWP program. Regional conditions are necessary because aquatic resource functions and values vary considerably across the country. Utilization of regional conditions is not contrary to the NWP program because those conditions help ensure that the NWPs do not authorize activities with more than minimal adverse effects on the aquatic environment.
Imposing more stringent national terms and limitations on the NWPs instead of imposing regional conditions would not be a practical alternative, because it would severely limit the ability of the NWPs to authorize many activities that have minimal adverse effects on the aquatic environment. It is far more efficient to develop NWPs that authorize most activities that have minimal adverse effects on the aquatic environment and allow division and district engineers to limit the use of these NWPs or exercise discretionary authority in specific situations that may result in more than minimal adverse effects on the aquatic environment. For particular regions of the country or specific waterbodies where additional safeguards are necessary to ensure that the NWPs authorize only those activities with minimal adverse effects, regional conditions are the appropriate mechanism. Case-specific discretionary authority or special conditions cannot substitute for regional conditions in many cases, especially for those NWP activities that do not require notification to the District Engineer. For example, regional conditions can lower PCN thresholds for activities in high value waters to allow district engineers to review those activities and determine if the work can be authorized by NWPs. Division and district engineers are much more knowledgeable about local aquatic resource functions and values and can prohibit or limit the use of the NWPs in high value waters. We contend that regional conditioning of the NWPs provides effective protection for high value wetlands and other aquatic habitats.
Several commenters indicated that regional conditions should be more consistent between Corps districts. One of these commenters also stated that regional conditions should be based on environmental factors and climate, not political boundaries. One commenter recommended Corps division boundaries as the smallest unit for consistency in regional conditions. Another commenter suggested state boundaries as the smallest unit for consistency of regional conditions. Several commenters said that regional conditions make it more difficult for companies that work in more than one state to efficiently manage their operations to comply with the NWPs.
To a certain extent, regional conditions are based on environmental factors but it is usually necessary to provide some consistency within political boundaries, such as state boundaries. Consistency within a particular state is beneficial to the regulated public because it results in more effective cooperation between state agencies, such as the state agencies responsible for making Section 401 and CZMA determinations, and the Corps. In those states where more than one Corps district is present, we have recommended that those Corps districts develop, to the extent practicable, consistent regional conditions statewide. However, we recognize that there may be certain regions within a state, such as specific high value waterbodies, that may warrant regional conditions that are not necessary in other areas of that state. Different regional conditions can be imposed in those unique situations. Within Corps division boundaries, there is often wide variability in aquatic resource functions and values. Therefore, consistency in regional conditions at a scale larger than a state is contrary to the purpose of the regional conditioning process, which is to consider local differences in aquatic resource functions and values to ensure that the NWPs do not authorize activities with more than minimal adverse effects on the aquatic environment. Companies that work in more than one Corps district or more than one state will have to comply with the regional conditions established in each district or within each state.
One commenter stated that the Corps assertion that regional conditions cannot be elevated to headquarters is inconsistent with the regional conditioning process established in the July 1, 1998, Federal Register notice. Three commenters indicated that division engineers should be able to increase the acreage limit of an NWP or delete or modify conditions of an NWP through regional conditions and recommended that the Corps revise its regulations to provide division engineers with such authority.
The authority to require regional conditions lies solely with division engineers and cannot be elevated to the Headquarters level. The regulations for the NWPs (33 CFR Part 330) clearly state that the modification, suspension, or revocation of any NWP on a regional basis is the decision of the division engineer. The regional conditioning process described in the July 1, 1998, Federal Register notice did not include elevation of NWP regional conditions to headquarters. Meetings between Corps district commanders and Regional Administrators of EPA and Regional Directors of the U.S. Fish and Wildlife Service and National Marine Fisheries Service were to occur to discuss proposed regional conditions and resolve any disputes concerning those regional conditions (see 63 FR 36048).
As discussed in the July 21, 1999, Federal Register notice, division and district engineers cannot use regional conditioning to make the NWPs less restrictive. Only the Chief of Engineers can modify an NWP to make it less restrictive, if it is in the national public interest to do so. Such a modification must go through a public notice and comment process. However, if a Corps district determines that regional general permits (RGPs) are necessary for activities not authorized by NWPs, then that district can develop and implement regional general permits to authorize those activities, as long as those regional general permits comply with Section 404(e) of the Clean Water Act. However, we have established a six month moratorium on RGPs and LOPs that are germane to the new and modified NWPs to allow districts time to assess the true need for such RGPs and LOPs.
One commenter stated that the regional conditioning process violates the Administrative Procedures Act and that proposed regional conditions must be published in the Federal Register for comment. This commenter said that posting draft regional conditions on Internet home pages provides inadequate notice because most citizens do not use the Internet. This commenter also requested that the Corps publish a notice in the Federal Register that includes all proposed regional conditions to solicit public comments on those regional conditions. Several commenters objected to the regional conditioning process because all draft regional conditions were not available when the July 21, 1999, Federal Register notice was published. Two commenters said that regional conditions should not be drafted or subject to comment until the new and modified NWPs are issued.
Regional conditions for the NWPs do not need to be published in the Federal Register for public comment. It is important to remember that regional conditions are issued by division commanders, not Corps headquarters. District public notices for regional conditions provide adequate opportunities for public comment. Since the proposed regional conditions do not affect the process for issuing the new and modified NWPs, we do not agree that it was necessary to have all draft regional conditions posted on district Internet home pages at the same time the July 21, 1999, Federal Register notice was published. The 75-day comment period provided adequate opportunities for the public to consider both the July 21, 1999, Federal Register notice and all draft regional conditions proposed by Corps districts.
One commenter stated that it is difficult for prospective permittees to determine in which district their activities would occur and recommended that the Corps make maps of district boundaries available. One commenter suggested that high value waters subject to regional conditioning include warm water fisheries and waters with benthic macroinvertebrates.
The Corps has a general map of Corps division and district boundaries that is available on the Internet at http://www.usace.army.mil/inet/locations/bdry-pages/. This interactive map also provides links to Corps district home pages. Due to the scale of this map and since most Corps district boundaries are based on watershed boundaries, prospective permittees should contact the nearest Corps district office to determine which Corps district will review their PCN or permit application. Division engineers can determine that waters of the United States supporting warm water fisheries or benthic macroinvertebrates are high value waters that should be subject to regional conditioning.
Essential Fish Habitat
For the proposed new and modified NWPs published in the July 21, 1999, Federal Register notice, we conducted programmatic Essential Fish Habitat (EFH) consultation with the National Marine Fisheries Service (NMFS), pursuant to Section 305(b)(2) of the Magnuson-Stevens Fishery Conservation and Management Act. In response to our request for programmatic consultation, NMFS made two programmatic EFH conservation recommendations. The first EFH conservation recommendation was for Corps districts to work with NMFS regional offices to the extent necessary to develop NWP regional conditions that conserve EFH and are consistent with NMFS regional EFH conservation recommendations. The second EFH conservation recommendation indicated that paragraph (e) of General Condition 13, which states that district engineers will provide no responses to resource agency comments on PCNs, should not apply to EFH conservation recommendations provided by NMFS.
We concur with both of these EFH conservation recommendations. We have directed our district offices in geographic regions with EFH to coordinate with NMFS regional offices to develop, to the extent necessary, regional conditions for the new and modified NWPs that conserve EFH and are consistent with NMFS regional EFH conservation recommendations. In addition, we have added a sentence to paragraph (e) of General Condition 13 to require district engineers to respond to NMFS within 30 days of receipt of any EFH conservation recommendations. This requirement is necessary to comply with section 305(b)(4)(B) of the Magnuson-Stevens Fishery Conservation and Management Act.
Workload Implications of the New and Modified Nationwide Permits
A large number of commenters stated that the lower acreage limits and PCN requirements of the new and modified NWPs, as well as the three proposed general conditions, will result in substantial increases in the number of standard permit applications processed by the Corps and processing times for all Section 404 permits. Many commenters objected to the proposed NWPs because the Corps did not explain how it will handle the increase in workload. A number of commenters said that if the proposed changes to the NWP program are implemented, the Corps will need to increase its resources to process the additional standard applications and PCNs in a timely manner. One commenter said that the cumulative impact analysis requirements will increase the Corps workload while another commenter cited regional conditions as another factor that will increase the Corps workload.
One commenter predicted that the Corps will experience an increase of 17,000 individual permit applications per year. Another commenter estimated an increase of 2,000 individual permits per year as a result of the proposed changes. This commenter also predicted that average individual permit processing times will increase from 89 days to 350 days over the next six years and estimates that the permit application carryover will double during that time period.
The workload and compliance costs study conducted by IWR, and mentioned above in the overview, for the proposal published in the July 21, 1999, Federal Register showed that the proposed NWP package would result in a 50% increase in the number of standard individual permit applications received by the Corps per year. The study estimated that the Corps would receive 4,429 additional standard permit applications per year and receive 2,878 fewer NWP PCNs per year. As a result of the increased standard permit workload, the average amount of time that it takes for the Corps to process permit applications would increase three to four times within five years. Likewise, the permit application backlog would increase by the same amount during that five year period.
The changes to the new and modified NWP issued today, including the 1/2 acre limit and the modification of the general condition for fills in 100-year floodplains, are estimated to result in 40% fewer standard permit applications compared to the proposal published in the July 21, 1999, Federal Register. Also, the standard permit processing times and the permit application backlog would increase by one and a half to two times the amount for FY 1998.
We have also reviewed an analysis, based on the July 21, 1999, proposal, that was conducted on behalf of the National Association of Counties. This analysis examined the impacts of the July 21, 1999, proposal on the Corps workload and costs to the Corps and the regulated public.
We have not proposed any changes to our approach for analyzing cumulative adverse effects on the aquatic environment cause by NWPs. Therefore, cumulative adverse effect analysis will not impose additional workload on Corps district offices. Although regional conditions will cause some increases in the Corps workload, those increases are manageable and necessary to ensure that the NWPs do not authorize activities that result in more than minimal adverse effects on the aquatic environment.
One commenter said that the increases in workload caused by the three proposed general conditions are offset by the increased scope of applicable waters for these NWPs, because many of these activities would have required individual permits when NWP 26 was in place. In contrast, another commenter stated that the proposed NWPs will result in more individual permit applications because the new NWPs do not authorize activities in tidal waters.
We do not agree that the larger geographic scope of the new NWPs, when compared to the geographic scope of NWP 26, will offset the increase in workload caused by the new NWP general conditions. For example, General Condition 26 prohibits discharges of dredged or fill material into waters of the United States within 100-year floodplains of stream segments below headwaters. Since NWP 26 did not authorize discharges of dredged or fill material into tidal waters, prohibiting the use of the new NWPs in tidal waters will not cause any increases in the number of individual permit applications processed by the Corps.
Other Issues
In response to the July 21, 1999, Federal Register notice, some commenters raised additional issues related to the new and modified NWPs. Several commenters expressed concern that none of the new and modified NWPs authorize oil and gas development facilities. These commenters said that NWP 26 was used to authorize these facilities where no regional general permits (RGPs) are available and recommended that the Corps develop such an NWP. One commenter suggested that the Corps modify NWP 39 to authorize oil and gas wells as industrial facilities.
When we developed the new and modified NWPs that will replace NWP 26, we considered an NWP to authorize oil and gas facilities. However, when we surveyed Corps districts to determine how frequently such an NWP would be used, we found that there was little need for this NWP because most of the districts that frequently authorize oil and gas facilities have issued RGPs to authorize these activities. The development of RGPs for this activity is more appropriate than developing a new NWP. We do not agree with the recommendation to modify NWP 39 to authorize these activities, because NWP 39 authorizes building pads and attendant features, and oil and gas wells are not buildings.
Two commenters recommended that the Corps develop an NWP to authorize the construction of fish passage facilities and other stream enhancement activities, such as relocating a portion of a stream channel to provide proper alignment for fish passage, because these activities were authorized by NWP 26.
We do not agree that there is sufficient need to develop a new NWP to authorize the construction of fish passage facilities. Stream enhancement activities may be authorized by NWP 27, provided the proposed work meets the terms and conditions of this NWP. Discharges into waters of the United States associated with the construction of fish passage facilities may also be authorized by other NWPs, RGPs, or individual permits.
Several commenters requested that the Corps reverse its decision to withdraw NWP B, which was proposed in the July 1, 1998, Federal Register notice to authorize master planned development activities. One of these commenters stated that the withdrawal of proposed NWP B is contrary to "smart growth" initiatives.
Our decision to withdraw NWP B is discussed in the October 14, 1998, and July 21, 1999, Federal Register notices. We have not changed our position on this matter, but we could propose an NWP for master planned development activities at a later time. We do not agree that the withdrawal of NWP B is contrary to smart growth initiatives, because developments that are part of smart growth planning efforts can be authorized by other NWPs, such as NWP 39, RGPs, and individual permits.
One commenter objected to the draft NWPs, stating that they do not authorize certain activities associated with railroad operations, such as the completion of drainage improvements along unstable embankments, bank stabilization to protect tracks from slide events, small fills associated with the installation of signals and switches, and the construction of miscellaneous structures associated with railroad tracks.
Some of these activities can be authorized by existing NWPs, including some of the NWPs modified today. For example, bank stabilization activities to protect railroad tracks from slide events may be authorized by NWP 13. Small fills associated with the installation of signals, switches, and minor drainage improvements may be authorized by NWP 18. NWP 14 may also be used to authorize some activities associated with railroads, since railways are linear transportation projects. These activities can also be authorized by RGPs and individual permits, if they do not qualify for authorization under the NWP program.
Two commenters said that a new NWP should be developed to authorize the construction of flood control improvements, including structures and fills for flood control facilities. Two commenters stated that the new and modified NWPs and regional conditions will make it more difficult to maintain a previously authorized flood-control facility.
We do not agree that a new NWP should be developed for the construction of flood control facilities. Such activities are likely to result in more than minimal adverse effects on the aquatic environment by reducing or eliminating the natural functions and values of open waters, including streams, and floodplains. Flood control activities may be authorized by NWPs, RGPs, or individual permits. The new and modified NWPs will not make it more difficult to maintain flood control facilities. We have withdrawn the proposed general condition for impaired waters. General Condition 26, Fills in 100-year Floodplains, does not apply to NWP 31, which authorizes the maintenance of existing flood control facilities.
One commenter requested that the Corps develop a new NWP to authorize abandoned mined land cleanup activities, since NWP 27 does not authorize all of these activities. This commenter said that NWP 26 was used to authorize these activities.
During the reissuance process for the existing NWPs that will begin in 2001, we will consider developing an NWP to authorize discharges of dredged or fill material into waters of the United States for abandoned mined land cleanup projects.
One commenter recommended that the Corps revoke the NWPs in all watersheds or sub-basins that have exceeded 8% imperviousness. Another commenter suggested that the Corps condition the NWPs to encourage or require planting of native plant species in areas that are impacted by NWP activities, because such a condition would support Executive Order 13112, entitled "Invasive Species." Two commenters said that the Corps should develop and implement a classification system that assesses the potential for restoring or enhancing degraded wetlands to encourage restoration or enhancement, instead of issuing permits to fill these areas.
We do not agree that the NWPs should be revoked simply because the amount of impervious surface within a particular watershed has exceeded a certain threshold. District engineers will monitor the use of the NWPs to ensure that the NWPs do not authorize activities with more than minimal adverse effects on the aquatic environment, individually or cumulatively. We cannot require all permittees to plant native species at sites impacted by activities authorized by NWPs, but they are encouraged for vegetated buffers. While we encourage restoration and enhancement of degraded wetlands as compensatory mitigation for activities authorized by DA permits, including NWPs, we cannot develop a classification system to identify these areas and prohibit discharges of dredged or fill material into those waters.
Two commenters requested that the final notice announcing the issuance of the new and modified NWPs include a statement that the three new NWP conditions proposed in the July 21, 1999, Federal Register notice should not become conditions on all Corps permits, including individual permits. Two commenters said that any regional general permits or Section 404 letters of permission issued by Corps districts must include the three proposed new NWP general conditions.
We agree that the proposed general conditions limiting the use of NWPs in designated critical resource waters, impaired waters, and waters of the United States within 100-year floodplains should not be incorporated into all Corps permits. RGPs issued by Corps districts can authorize only activities that result in minimal adverse effects on the aquatic environment. Since RGPs are local solutions for implementing the Corps regulatory program, these general permits will thoroughly address local concerns for the aquatic environment. Therefore, it is not necessary for all RGPs issued by district engineers to contain conditions limiting their use in designated critical resource waters, impaired waters, and waters of the United States within 100-year floodplains. Standard permits are subject to the public interest review process, which considers impacts to public interest factors, including critical resource waters, impaired waters, and waters of the United States within 100-year floodplains.
One commenter recommended that the Federal Register notice announcing the final new and modified NWPs contain a compilation of all regulatory information concerning the NWPs to make the preamble discussions available to the regulated public. Another commenter indicated that the Corps cannot issue provisional NWP authorizations in states that have denied water quality certification for those NWPs.
All Federal Register notices concerning the new and modified NWPs are currently available to the public. Due to the length of these notices and the many changes that have occurred since these NWPs were initially proposed on July 1, 1998, it would be impractical to compile the preambles for all of these notices into one document. In the July 21, 1999, Federal Register notice (64 FR 39261), we addressed comments concerning the issuance of provisional NWP verifications and we have not changed our position on this matter.
One commenter said that the new NWPs and general conditions should not become effective until six to nine months after the new NWPs are issued, so that activities that have already been planned can proceed under the NWPs issued in 1996. One commenter objected to using NWPs to authorize the expansion of existing projects, stating that this discourages avoidance and minimization of losses of waters of the United States. One commenter stated that the new and modified NWPs should address impacts to prior converted cropland. Several commenters said that NWP 29 should be revoked.
The new and modified NWPs, including the new and modified general conditions, will become effective on June 5, 2000. Until the effective date of the new and modified NWPs and general conditions, the current NWPs (as published in the December 13, 1996, Federal Register) are applicable. Permittees that begin work, or are under contract to begin work, prior to the effective date of the new and modified NWPs, have one year to complete the work under the term and conditions of the NWPs issued in 1996. However, in a notice published in the December 15, 1999, issue of the Federal Register (64 FR 69994), we established a procedure for processing NWP 26 PCNs. We do not agree that a longer implementation schedule is necessary. In addition, an extended implementation schedule would be contrary to our intent to replace NWP 26 with activity-specific NWPs that authorize activities with minimal adverse effects on the aquatic environment.
The use of NWPs to authorize the expansion of existing projects does not discourage avoidance and minimization of activities in waters of the United States. These activities are required to comply with all NWP terms and conditions, including General Condition 19, and must result only in minimal adverse effects on the aquatic environment. The new and modified NWPs do not need to address impacts to prior converted cropland, since these areas are not waters of the United States. If prior converted cropland is abandoned and reverts back to jurisdictional wetlands, then those areas are subject to the permit requirements of Section 404 of the Clean Water Act. We do not agree that NWP 29 should be revoked, since it authorizes single family housing activities with minimal adverse effects on the aquatic environment.
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