14. Linear Transportation Crossings: In the July 21, 1999, Federal Register notice, we proposed to modify NWP 14 to authorize the construction, expansion, modification, or improvement of linear transportation crossings, with a higher acreage limit for public linear transportation crossings constructed in non-tidal waters, excluding non-tidal wetlands adjacent to tidal waters.
Two commenters said that the proposed modification of NWP 14 will authorize activities with more than minimal adverse effects on aquatic environment. Two commenters said that this NWP should have the same terms and conditions as NWPs 41 and 43 because these NWPs authorize similar activities.
The terms and conditions of this NWP will ensure that only activities with minimal adverse effects on the aquatic environment will be authorized. Most activities authorized by this NWP require notification to the district engineer, which will allow case-by-case review of proposed NWP 14 activities. NWPs 14, 41, and 43 authorize distinctly different activities and should not contain the same terms. However, these NWPs can be combined to authorize a single and complete project, provided the activity complies with General Condition 15.
One commenter supported limiting the modification of this NWP to the authorization of linear transportation crossings. Another commenter said that this NWP should not authorize new linear transportation crossings. A commenter stated that the maintenance of road crossings should be exempt from permit requirements and that NWP 14 should be needed only for the construction of new crossings. One commenter indicated that this NWP should be limited to the construction of span bridges and should not authorize culverted crossings. A commenter said that the NWP should authorize integral features associated with the linear transportation crossing. One commenter objected to the proposed modification, stating that it should not authorize the expansion of airport runways. Two commenters said that the term "public-use airport" should be used when describing airport runways that are to be used by the general public and considered as public transportation crossings.
We have not changed the categories of authorized activities from the proposed modification of NWP 14 published in the July 21, 1999, Federal Register notice. Some road crossing maintenance activities may qualify for the Section 404(f) exemption and not require a DA permit. Maintenance activities that require changes in the configuration or design of the linear transportation crossing are authorized by this NWP, provided the work meets the terms and conditions of the NWP and results in minimal adverse effects on the aquatic environment. We do not agree that this NWP should be limited to span bridges. Culverts and fords can be used to construct linear transportation crossings that have minimal adverse effects on the aquatic environment. Features that are an integral part of the linear transportation crossing, such as interchanges, rail spurs, stormwater detention basins, and water quality enhancement measures are authorized by this NWP. However, this NWP can be combined with other NWPs to authorize a single and complete project provided the activity complies with the requirements of General Condition 15. We maintain our position that this NWP should authorize the expansion of airport runways. We do not agree that it is necessary to incorporate the term "public-use airport" in the text of the NWP. District engineers will determine on a case-by-case basis whether the construction of a linear transportation crossing for an airport is a public or private activity.
Several commenters objected to the differentiation between public and private linear transportation crossings for the acreage limits of the proposed modification of this NWP. Two commenters agreed that public linear transportation crossings should have higher acreage limits under this NWP. One commenter requested clearer definitions of the terms "public" and "private" as used in the context of this NWP. This commenter asked if the determination whether a particular activity is public or private depends upon the users of the linear transportation crossing or the project proponent. For example, if a private developer is required to build a road that will be used by the general public as a condition of subdivision approval, would that road be considered a public or private road for the purposes of this NWP?
We maintain our position that public linear transportation crossings should have a higher acreage limit because they fulfill a larger proportion of public interest factors and the government agencies that typically sponsor and build these projects have the resources necessary to ensure that these projects have minimal adverse effects on the aquatic environment. Public transportation projects often require detailed planning processes to document compliance with the National Environmental Policy Act, Section 404 of the Clean Water Act, and other applicable laws. As a result, we have decided that it is appropriate to impose a higher acreage limit for public linear transportation projects in non-tidal waters, excluding non-tidal wetlands adjacent to tidal waters.
Public linear transportation crossings are available for use by the general public. Private linear transportation crossings are restricted to use by an individual or a specific group of individuals. The users of the crossing determine whether the crossing is public or private, not the builder of the transportation crossing. Public roads that are constructed as a condition of subdivision approval and will be used by the general public are considered public linear transportation crossings for the purposes of this NWP.
Many commenters recommended a 2 acre limit for public linear transportation crossings. One commenter suggested a 3 acre limit. Two commenters said that the 1 acre limit for public linear transportation crossings is too low. Several commenters stated that this NWP should have a 1/3 acre limit. One commenter said that the length of fill should not exceed 200 feet and another commenter remarked that the 200 foot restriction for fills should be removed from the NWP. Two commenters recommended replacing the 200 foot limit with a 500 foot limit. One commenter suggested a 500 linear foot limit for stream bed impacts.
We have determined that the maximum acreage limit for this NWP should be 1/2 acre, to ensure that this NWP only authorizes activities with minimal adverse effects on the aquatic environment. For public linear transportation crossings constructed in non-tidal waters of the United States, excluding non-tidal wetlands adjacent to tidal waters, the acreage limit will be 1/2 acre. For public linear transportation crossings in tidal waters or non-tidal wetlands adjacent to tidal waters, the acreage limit will be 1/3 acre. For private linear transportation crossings, the acreage limit will be 1/3 acre. The 200 foot limit for the length of fill in waters of the United States will be retained for public linear transportation crossings constructed in tidal waters or non-tidal wetlands adjacent to tidal waters and for private linear transportation crossings.
One commenter said that PCNs should be required for all activities authorized by this NWP. Several commenters recommended a PCN threshold of 1/3 acre. Two commenters suggested that PCNs should be required for discharges of dredged or fill material resulting in the loss of greater than 500 linear feet of stream bed. Three commenters said that notification should not be required for all discharges into special aquatic sites. One commenter requested clarification concerning when a PCN is required for discharges into waters of the United States that are not special aquatic sites.
We have modified this NWP to require notification for discharges of dredged or fill material resulting in the loss of greater than 1/10 acre of waters of the United States. We are retaining the notification requirement for all discharges of dredged or fill material into special aquatic sites. If the proposed work does not involve discharges of dredged or fill material into special aquatic sites, the prospective permittee is required to notify the district engineer if the proposed work will result in the loss of greater than 1/10 acre of waters of the United States.
One commenter asked if the acreage limits for this NWP apply only to permanent losses of waters of the United States. Three commenters requested clarification whether the requirement for a mitigation proposal in paragraph (c) applies to the mitigation process (i.e., avoidance, minimization, and compensation) or only to compensatory mitigation. One commenter said that there should be an acreage threshold for the requirements of paragraph (c). One commenter said that mitigation should be required for all impacts to waters of the United States and another commenter stated that mitigation should be required for discharges resulting in the loss of greater than 1 acre of waters of the United States.
In accordance with the definition of the term "loss of waters of the United States" in the "Definitions" section of the NWPs, the acreage limit applies only to permanent losses of waters of the United States. We have inserted the word "compensatory" before the phrase word "mitigation proposal" in paragraph (c) to clarify that the prospective permittee must submit a compensatory mitigation proposal with the PCN. The requirement for a compensatory mitigation proposal applies only to those activities that require notification. District engineers can determine, on a case-by-case basis, that compensatory mitigation is not necessary to offset losses of waters of the United States because the work, without compensatory mitigation, will result in minimal adverse effects on the aquatic environment. We have also inserted the phrase "of waters of the United States" after the term "temporary losses" in paragraph (c) to clarify that the required statement must address temporary losses of waters of the United States.
One commenter suggested that notification should be required if NWP 14 was previously used to authorize a road crossing on the same waterbody. Another commenter objected to considering each crossing of a separate waterbody as a distinct single and complete project. One commenter said that the second sentence of paragraph (h) should be deleted because it contradicts the definition of the term "single and complete project."
Since notification is required for all discharges of dredged or fill material into special aquatic sites and discharges resulting in the loss of greater than 1/10 acre of waters of the United States, most activities authorized by this NWP will require notification to the district engineer. If NWP 14 is used more than once by different project proponents to cross a single waterbody, the district engineer will assess the adverse effects on the aquatic environment and determine if those adverse effects are minimal. The second sentence of paragraph (h) does not contradict the Corps definition of the term "single and complete project" at 33 CFR 330.2(i).
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 restricts its use in designated critical resource waters. For linear transportation crossings resulting in discharges of dredged or fill material into waters of the United States within 100-year floodplains, General Condition 26 requires the permittee to notify the district engineer and demonstrate that the proposed work complies with FEMA or FEMA-approved local floodplain construction requirements. NWP 14 is reissued with the modifications discussed above.
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