III. Comments and Responses on Specific Nationwide Permits
3. Maintenance: In the July 21, 1999, Federal Register notice, we proposed to modify this NWP to authorize the removal of accumulated sediment in the vicinity of existing structures and authorize activities in waters of the United States associated with the restoration of uplands damaged by storms, floods, or other events. These additional activities are in paragraphs (ii) and (iii), respectively, of this NWP.
One commenter said that the proposed modifications are not maintenance activities and should not be authorized by this NWP. Some commenters requested clarification whether this NWP only applies to activities not statutorily exempt under section 404(f)(1)(B) of the Clean Water Act. One commenter objected to this NWP, stating that it is used to change existing projects to different use categories. Another commenter asked what is meant by the phrase "minor deviations in the structure's configuration or filled area."
We believe that the activities authorized by paragraphs (ii) and (iii) of this NWP are maintenance activities. The note at the end of this NWP states that NWP 3 authorizes the repair, rehabilitation, or replacement of any previously authorized structure or fill that does not qualify for the Section 404(f) exemptions for maintenance. The first sentence of paragraph (i) explicitly states that NWP 3 does not authorize changes in use for the authorized structure or fill. The phrase "minor deviations in the structure's configuration or filled area" allows the project proponent to make minor changes to a previously authorized structure or fill during the repair or maintenance activity so that the structure or fill complies with current construction standards or other regulations.
Several commenters supported the removal of the notification requirement from paragraph (i) of this NWP. One commenter said that replacement activities should allow reconfiguration of structures such as marina piers. One commenter believes that paragraph (i) contains contradictory language because it authorizes the repair, replacement, or rehabilitation of previously authorized, currently serviceable structures or fills and the replacement of structures destroyed by storms. Another commenter said that some maintenance activities take longer than two years and recommended that the NWP be modified to accommodate those longer repair periods. One commenter recommended that the NWP authorize the use of cofferdams during maintenance activities.
The reconfiguration of marinas is authorized by NWP 28. The reconfiguration of other types of structures may be authorized by other NWPs, regional general permits, or individual permits. Authorizing the repair of currently serviceable structures or fills and the replacement of structures or fills damaged by storms, floods, or other discrete events is not contradictory because both of these activities are maintenance activities that typically have minimal adverse effects on the aquatic environment. These provisions are also consistent with the Section 404(f) exemptions for maintenance. We do not agree that it is necessary to increase the two-year limit for maintenance activities because this amount of time is adequate for most maintenance activities. In addition, NWP 3 contains a provision that allows district engineers to waive this time limit. The use of cofferdams during maintenance activities may be authorized by NWP 33.
Some commenters recommended removing the proposed limitations in paragraph (ii) of NWP 3. Several commenters suggested adding acreage limits to paragraph (ii) and others suggested that the 200 linear foot limit should be reduced to 50 feet. One commenter stated that this provision is unnecessary and that NWP 3 should not be modified to authorize this activity. Another commenter said that paragraph (ii) should not authorize the installation of rip rap.
We believe that the 200 linear foot limit for the removal of accumulated sediments in the vicinity of existing structures is appropriate and will ensure that this NWP authorizes only activities with minimal adverse effects on the aquatic environment. The removal of accumulated sediments allows structures to continue to function properly and ensure the safety of the users of the structure. The installation of rip rap is often necessary to protect these structures after the accumulated sediment is removed and should be authorized by this NWP as part of the single and complete project.
One commenter supported paragraph (iii) of the proposed modification of NWP 3, which authorizes activities in waters of the United States associated with the restoration of uplands damaged by storms and other discrete events. One commenter said that paragraph (iii) is unnecessary because these activities should be considered exempt and bank stabilization can be authorized by NWP 13. One commenter stated that the activities authorized by paragraph (iii) will have more than minimal adverse effects on the aquatic environment. Two commenters objected to the proposed modification, stating that it would prevent natural stream processes from occurring and allow stream channelization. A commenter said that this NWP should not authorize bank stabilization activities in floodplains. Another commenter stated that separate authorization should not be required if excavated material is used to replace material that is lost as a result of erosion. One commenter recommended modifying the text of paragraph (iii) to state that the NWP does not authorize the replacement of uplands lost through gradual erosion processes.
The intent of paragraph (iii) of NWP 3 is to authorize activities in waters of the United States associated with the replacement of uplands that are damaged as a result of storms and other catastrophic events. The restoration of uplands damaged as a result of storms and other catastrophic events is exempt from Section 404 permit requirements, as long as the upland area is replaced to its original extent. For example, a hurricane may cause substantial erosion and destroy a section of a road constructed in uplands or on a permitted fill. The restoration of those uplands or the permitted fill and the replacement of the destroyed road are exempt from Section 404 permit requirements, provided the area is repaired to its original extent. However, the restoration work may involve activities in waters of the United States, which are authorized by paragraph (iii), provided those activities comply with the terms and conditions of NWP 3. We maintain our position that this is a maintenance activity that should be authorized by NWP 3. Paragraph (iii) does not authorize new stream channelization or stream relocation activities. We believe that bank stabilization is a necessary component of this activity and should be authorized by paragraph (iii) as part of the single and complete project. We concur with the last comment in the previous paragraph and have made the appropriate modification of the text of paragraph (iii).
One commenter indicated that the district engineer should have discretion over which flood damage repair activities require notification and another commenter said that notification should not be required for any of these activities. One commenter suggested that the 50 cubic yard limit for removal of obstructions should be replaced with 500 linear foot and 1/3 acre limits.
We contend that notification should be required for all of the activities authorized by paragraph (iii) to ensure that these activities result in minimal adverse effects on the aquatic environment. We do not agree that the 50 cubic yard limit for the removal of obstructions should be replaced with 500 linear foot or 1/
3 acre limits.
In response to a PCN, district engineers can require special conditions on a case-by-case basis to ensure that the adverse effects on the aquatic environment are minimal or exercise discretionary authority to require an individual permit for the work. The issuance of this NWP, as with any NWP, provides for the use of discretionary authority when valuable or unique aquatic areas may be affected by these activities. This NWP is subject to General Condition 25, which requires notification for activities in designated critical resource waters. NWP 3 is reissued with the modifications discussed above.
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