41. Reshaping Existing Drainage Ditches: In the July 21, 1999, Federal Register notice, we proposed to issue an NWP to authorize discharges of dredged or fill material into non-tidal waters of the United States, excluding non-tidal wetlands adjacent to tidal waters, to modify the cross-section of drainage ditches constructed in these waters.
Two commenters opposed the issuance of this NWP if certain channelized streams are considered to be drainage ditches. One commenter said that these activities should be reviewed through the individual permit process. Another commenter stated that this NWP will be abused by landowners who want to reshape the banks of their drainage ditches under the guise of improving water quality.
The maintenance of drainage ditches that were constructed by channelizing streams may be eligible for the Section 404(f) exemption. The purpose of NWP 41 is to provide a general permit that authorizes the reshaping of existing serviceable drainage ditches constructed in non-tidal waters of the United States, excluding non-tidal wetlands adjacent to tidal waters, in a manner that benefits the aquatic environment. This NWP does not authorize reshaping of drainage ditches that increases the area drained by the ditch. We do not agree that this NWP will be abused by landowners, because of the stringent terms of the NWP. Division engineers can revoke this NWP in areas where the reshaping of drainage ditches constructed in non-tidal waters of the United States results in more than minimal adverse effects on the aquatic environment, individually or cumulatively.
Several commenters said that NWP 41 is unnecessary, because these activities are authorized by NWP 3 or are exempt from Section 404 permit requirements. A commenter stated that the discussion of the Section 404(f) exemption for ditch maintenance in the July 21, 1999, Federal Register notice is inaccurate because it did not include the recapture provision of Section 404(f)(2). Another commenter indicated that if the intent of NWP 41 is to improve water quality, then these activities should be authorized by NWP 27.
NWP 3 does not authorize the reshaping of drainage ditches constructed in waters of the United States. Maintenance activities explicitly identified in Section 404(f) are exempt from permit requirements, subject to the recapture provisions of Section 404(f)(2). NWP 27 authorizes the restoration, enhancement, and creation of aquatic habitats, not the reshaping of drainage ditches.
One commenter said that this NWP should apply to all man-made ditches, whether or not they are currently serviceable, as long as the cropland draining to the ditch has not been abandoned. A commenter requested criteria that will be used to determine whether a particular ditch is currently serviceable. Another commenter recommended expanding the scope of this NWP to authorize ditch relocation. One commenter said that sidecasting into waters of the United States should not be authorized by this NWP. Another commenter suggested that this NWP should not authorize activities that involve the installation of concrete lining or other hard structures.
This NWP applies only to the reshaping of existing serviceable drainage ditches constructed in waters of the United States. It does not authorize the reconstruction of drainage ditches. We have replaced the word "existing" with the word "currently" in the first sentence of this NWP. For the purposes of NWP 41, the definition of the term "currently serviceable" is the same as the definition provided in NWP 3. This NWP does not authorize ditch relocation, because relocating a drainage ditch is likely to result in draining of areas that were not previously drained. We have modified NPW 41 to allow for the temporary sidecasting of material into waters of the United States. Material may be temporarily sidecast (up to three months) into waters of the United States, provided the material is not placed in such a manner that it is dispersed by currents or other forces. The District Engineer may extend the period of temporary sidecasting not to exceed a total of 180 days, where appropriate. This NWP does not authorize discharges of dredged or fill material into waters of the United States to line drainage ditches with concrete or other hard structures.
Several commenters said that the scope of waters for this NWP should be expanded to include tidally influenced drainage ditches. One commenter stated that the text of this NWP is misleading because the Corps has no legal authority to regulate the reshaping of drainage ditches landward of the ordinary high water mark if there is no wetland hydrology. Another commenter recommended adding a provision to NWP 41 which states that the maintenance of existing drainage ditches to their original dimensions and configuration is exempt from Section 404 permit requirements.
We do not agree that this NWP should be expanded to authorize discharges of dredged or fill material into tidal waters of the United States or non-tidal wetlands adjacent to tidal waters. The text of NWP 41 clearly states that it authorizes discharges of dredged or fill material into non-tidal waters of the United States, excluding non-tidal wetlands adjacent to tidal waters. If the ditch reshaping activity does not involve discharges of dredged or fill material into waters of the United States, including wetlands, then the project proponent does not need a Section 404 permit. The text of this NWP includes a reference to the Corps regulations that address the Section 404(f) exemptions.
One commenter believes that the water quality benefits of the activities authorized by this NWP are doubtful and that the use of this NWP will increase the drainage of wetlands. Another commenter stated that the activities authorized by this NWP will prevent the development of woody vegetated buffers, which contradicts the goal of no net loss of wetlands and discourage stream restoration. Three commenters said that reshaping a drainage ditch will increase its hydraulic capacity. One of these commenters indicated that the project proponent should be required to demonstrate that the proposed work will not increase the area drained by the ditch. Two commenters indicated that compensatory mitigation should be required for the activities authorized by this NWP because drainage ditches drain wetlands.
Drainage ditches can be reshaped to improve water quality, without increasing the area drained by those ditches. This NWP does not authorize ditch reshaping activities that expand the area drained by the ditch. The removal of woody vegetation next to the stream is often necessary to maintain or reshape the drainage ditch. We do not agree that it is necessary to require project proponents to provide documentation that demonstrates that the activity will not increase the area drained by the ditch because the work is limited to restoring the ditch to its original capacity. Compensatory mitigation should not be required for activities authorized by this NWP, because it does not authorize the drainage of additional wetlands.
Three commenters recommended a 500 linear foot limit on this NWP and one commenter suggested a 250 linear foot limit. One commenter said that there should not be a limit on this NWP if the activity does not involve sidecasting into waters of the United States. One commenter stated that the PCN threshold should be reduced to 250 linear feet. Two commenters indicated that a delineation of special aquatic sites should not be required for those activities that require notification.
We do not agree that a linear foot limit should be placed on this NWP, because it authorizes activities that typically benefit the aquatic environment. We are retaining NWP 41 on the list of NWPs that require the submission of a delineation of special aquatic sites with the PCN.
One commenter said that NWP 41 should be conditioned to require permittees to obtain certification for best management practices from NRCS. Another commenter stated that this NWP should include a condition prohibiting the construction of berms and levees that would impede overbank flow. One commenter said that this NWP should authorize the reconfiguration of improperly designed drainage ditches, with the submission of a notification that documents the need for reconfiguration, to minimize adverse effects due to headcutting and increases in sediment loads.
We do not agree that it is necessary to require permittees to obtain certification for best management practices from NRCS. General Condition 21 states that NWP activities cannot permanently restrict or impede the passage of normal or expected high flows. Temporarily sidecast material should be placed so that it does not impede overbank flows. No berms, levees, or other similar structures are authorized by NWP 41. The reconfiguration of improperly designed drainage ditches can be authorized by individual permits, regional general permits, or other NWPs.
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. NWP 41 is issued with the modifications discussed above.
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