27. Stream and Wetland Restoration Activities: In the July 21, 1999, Federal Register notice, we proposed to modify NWP 27 to authorize the restoration of tidal waters and the restoration and enhancement of non-tidal streams and non-tidal open waters.
One commenter supported the expansion of this NWP to tidal waters. This commenter requested clarification regarding which restoration activities can occur in Section 10 waters and tidal waters. One commenter said that the title of this NWP should be changed to include creation activities. This commenter asked for clarification concerning the types of wetland creation activities that are authorized by this NWP. This commenter said that a Corps permit should be required only if the wetland creation activity includes connecting the wetland creation site to waters of the United States. One commenter said that restoration activities should be limited to restoring areas to their historic state and another commenter stated that NWP 27 should authorize activities that are part of a watershed improvement plan. One commenter said that this NWP should have enforceable conditions and permittees should be required to obtain restoration agreements that are approved by the Corps and the resource agencies. One commenter recommended a 2 acre limit for this NWP. Another commenter recommended that the Corps add a note to this NWP that is similar to the note at the end of NWP 39, which describes open waters of the United States.
This NWP authorizes the restoration of former tidal waters, the enhancement of degraded tidal wetlands, and the creation of tidal wetlands. We do not agree that it is necessary to include the word "creation" in the title of this NWP, since it is clearly indicated in the first paragraph of this NWP that wetland creation activities are authorized. This NWP provides authorization for all wetland creation activities, provided those activities comply with the terms and conditions of this NWP. Wetland creation activities that do not involve discharges of dredged or fill material into waters of the United States do not require a Section 404 permit. We do not agree that this NWP should be limited to restoring wetlands to their historic state, because restoration projects result in net improvements to the aquatic environment, even though they may not restore former waters to their historic state. This NWP can authorize the restoration, enhancement, and creation of aquatic habitats that are part of a watershed improvement plan.
We do not agree that it is necessary to execute restoration agreements for all activities authorized by this NWP. Such a provision would likely to discourage landowners from conducting these activities. Since this NWP authorizes activities that benefit the aquatic environment, an acreage limit would be counterproductive. The activities authorized by this NWP either require notification to the district engineer or involve oversight by other Federal agencies, which will ensure that only activities that benefit the aquatic environment are authorized by this NWP. A definition of the term "open water" is included in the "Definitions" section of the NWPs. Therefore, it is not necessary to include a note in this NWP.
One commenter said that this NWP should authorize the restoration and enhancement of tidal wetlands and streams. Another commenter stated that NWP 27 should authorize restoration, enhancement, and creation activities in drainage ditches, because it is difficult to distinguish between drainage ditches and streams in the mid-West. Several commenters believe that significant stream destruction can be authorized by this NWP and suggested imposing a limit of 250 linear feet on stream impacts.
This NWP authorizes the restoration and enhancement of tidal wetlands, but it does not authorize the restoration of tidal streams, particularly the open water areas of tidal streams. However, the restoration and enhancement of riparian zones next to tidal streams is authorized by this NWP. The restoration of tidal streams is not authorized by NWP 27 because changes in tidal aquatic habitats may result in more than minimal adverse effects on the aquatic environment. The restoration of tidal streams can be authorized by individual permits or regional general permits. This NWP authorizes the restoration and enhancement of non-tidal streams that were channelized to create drainage ditches, including the restoration and enhancement of riparian zones next to those streams. Since the activities authorized by NWP 27 benefit the aquatic environment and most activities require notification or oversight by other agencies, we do not agree that it is necessary to impose a linear limit on stream impacts.
One commenter said that this NWP should authorize only those activities that are conducted or sponsored by Federal or state agencies. Two commenters support the use of this NWP to authorize the restoration of aquatic habitats on public or private land. One commenter stated that the recommendation in paragraph (c) to plant native species on the project site should be modified to require the permittee to use local sources of plant materials.
Limiting this NWP to activities conducted or sponsored by Federal or state agencies would preclude the use of an NWP for many aquatic habitat restoration, enhancement, and creation activities conducted by private individuals that benefit the aquatic environment. We do not agree that permittees should be required to use local sources of plant materials.
One commenter objected to the provision that allows the relocation of aquatic habitats on the project site, stating that this provision is contrary to the avoidance and minimization requirements of the NWPs. Another commenter said that the relocation of aquatic habitats should be authorized only when it is ecologically preferable than avoidance and minimization. This commenter also requested that the NWP contain a provision that requires the relocated waters to be equal or greater in acreage than the waters of the United States filled as a result of the authorized activity. One commenter indicated that the relocation of aquatic habitats on the project site should not be authorized by this NWP.
Allowing the relocation of non-tidal waters on the project site is not contrary to General Condition 19 because NWP 27 requires authorized activities to result in net gains in aquatic resource functions and values. We are retaining the provision that allows the relocation of non-tidal waters on the project site.
One commenter opposed the use of rip rap for activities authorized by this NWP and another commenter supported the use of rip rap. One commenter said that the removal of accumulated sediments requires a Corps permit only when the work is conducted in navigable waters (i.e., Section 10 waters). Another commenter asked if the removal of accumulated sediments is authorized only once or if this activity can occur for the duration of the project to maintain the restored areas. One commenter stated that this NWP should also authorize the management of the restored, created, or enhanced waters.
Rip rap provides habitat for many species of aquatic organisms and its use should be authorized by this NWP, provided the authorized work results in net gains in aquatic resource functions and values. The Corps regulatory authority regarding excavation activities in waters of the United States is addressed in a previous section of this Federal Register notice. The removal of accumulated sediments is authorized by this NWP as often as necessary to maintain the restored areas, although the permittee should endeavor to locate the sediment source and try to stabilize that area to reduce inputs of sediment in the restored waters. This NWP authorizes activities necessary to maintain the restored, enhanced, or created aquatic habitats.
One commenter asked for a definition of the term "small" water control structure. This commenter recommended defining a small water control structure as a structure that impounds water to a maximum depth of 2.5 feet or less. This commenter also requested clarification concerning the extent of mechanized landclearing activities that are authorized by this NWP to remove undesirable vegetation. This commenter said that mechanized landclearing should be limited to establishing or maintaining native herbaceous wetland plant species and selected plant species that provide food for wildlife. This commenter recommended limiting mechanized landclearing to vegetation that has a diameter at breast height of 4 inches or less.
We do not believe that it is necessary to specify the dimensions of small water control structures that are authorized by this NWP. For those activities that require notification, the district engineer will determine whether the water control structure is authorized by this NWP. This NWP authorizes mechanized landclearing to remove undesirable vegetation and we recommend replacing the removed vegetation with native plant species. We do not agree that mechanized landclearing activities authorized by this NWP should be limited to vegetated that has a diameter at breast height of 4 inches or less, because the proposed work may require the removal of larger undesirable trees.
One commenter supported the provision that the conversion of natural wetlands to another aquatic use is not authorized by NWP 27. Two commenters stated that the construction of water impoundments should not be authorized by this NWP. One commenter opposed the prohibition against the impoundment of streams or the conversion of forested wetlands to construct waterfowl impoundments, because this commenter believes that these activities benefit the aquatic environment. This commenter supports the term of NWP 27 that prohibits the channelization of streams.
We maintain our position that this NWP should not authorize the impoundment of streams or the conversion of forested wetlands to construct waterfowl impoundments. These activities often result in more than minimal adverse effects to the aquatic environment by destroying or degrading habitat that is utilized by many other species of wildlife. However, open water impoundments can be created from uplands on the project site or by converting a non-tidal emergent or scrub-shrub wetland, provided that wetland type is recreated elsewhere on the project site and there are net gains in aquatic resource functions and values on the project site.
One commenter stated that all reversion activities on agricultural lands should be authorized by NWP 40 and all reversion activities on reclaimed surface coal mined lands should be authorized by NWP 21. Another commenter requested clarification of the provision that authorizes the reversion of wetlands restored, created, or enhanced on prior converted cropland. This commenter also suggested that a five year time limit for reversions should apply to agreements with the U.S. FWS or NRCS that do not have time limits. One commenter stated that the paragraph of NWP 27 that address reversion activities implies that the Corps is asserting jurisdiction over wetlands that were created on prior converted cropland, even though a Corps permit was not required to restore wetlands on that cropland. This commenter said that the Corps cannot consider all created wetlands to be jurisdictional wetlands.
It is more appropriate to authorize reversion activities by NWP 27, since this NWP was likely to be used to authorize the initial wetland restoration, enhancement, or creation activity. This NWP authorizes the reversion of wetlands that were restored, enhanced, or created on prior converted cropland that has not been abandoned, because prior converted croplands are not waters of the United States and a Section 404 permit is not required for discharges of dredged or fill material into prior converted cropland. We do not agree that it is necessary to impose a five year limit for reversions on U.S. FWS or NRCS agreements that do not have time limits. A Section 404 permit is not required to revert wetlands that are not considered waters of the United States.
One commenter supported the note in the proposed modification of NWP 27, which states that compensatory mitigation is not required for activities authorized by this NWP, provided there are net increases in aquatic resource functions and values in the project area. Two commenters said that this NWP should be used to authorize all compensatory mitigation projects. One commenter supports the use of NWP 27 to authorize the establishment of mitigation banks. Many commenters objected to the use of NWP 27 to authorize discharges of dredged or fill material into waters of the United States to construct mitigation banks. Several commenters oppose this provision, stating that mitigation banks should be subject to public comment because they affect local development patterns and land prices. The Corps received comments that it appeared that NWP 27 could be used to authorized mitigation banks that may not have been approved by an Interagency Mitigation Banking Review Team. That was not our intent. NWP 27 can only be used to authorize impacts at a mitigation bank that has been approved under the National Interagency Federal Mitigation Banking Guidance.
We maintain our position that NWP 27 may be used to authorize compensatory mitigation projects, including mitigation banks, that involve activities in waters of the United States, provided the work results in a net increase in aquatic resource functions and values in the project area. The use of NWP 27 to authorize mitigation banks does not override the Federal guidance for the establishment, use, and operation of mitigation banks that was issued in 1995. We do not agree that it is necessary to require individual permits for all mitigation banks, because they benefit the aquatic environment.
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 27 is reissued with the modifications discussed above.
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