42. Recreational Facilities: 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, for the construction or expansion of recreational facilities that are integrated into the existing landscape.
One commenter said that this NWP will authorize activities with more than minimal adverse effects on the aquatic environment and induce development of neighboring areas. One commenter stated that the word "passive" should be retained in the title of the NWP. One commenter noted that the word "of" should be replaced with the word "or" after the word "construction" in the first sentence. Two commenters said that this NWP should authorize discharges of dredged or fill material into non-tidal wetlands adjacent to tidal waters.
The terms and conditions of this NWP, as well as the ability of division and district engineers to place regional and case-specific conditions on this NWP, will ensure that this NWP authorizes only activities with minimal adverse effects on the aquatic environment. We will not restore the word "passive" to the title of this NWP because it is an ambiguous term that does not provide any value to the NWP. We have replaced the word "of" with the word "or" in the first sentence of the NWP. The scope of applicable waters for this NWP is limited to "non-tidal waters of the United States, excluding non-tidal wetlands adjacent to tidal waters" to ensure that this NWP authorizes only activities with minimal adverse effects on the aquatic environment.
Many commenters objected to including the construction and expansion of golf courses and the expansion of ski areas in the list of activities authorized by this NWP. One commenter stated that the improvement of ski areas should be authorized by this NWP, in addition to the expansion of these facilities. One commenter said that other types of recreational facilities should be authorized by this NWP if they do not result in substantial amounts of grading and filling and the adverse effects on the aquatic environment are minimal. This commenter indicated that ball fields should be authorized by this NWP. Another commenter said that impervious surfaces should be authorized in areas where they are required for stabilization or meeting access requirements for disabled persons. One commenter stated that the term "substantial" needs to be defined so that it is consistently implemented by district engineers.
As discussed in the July 21, 1999, Federal Register notice, NWP 42 authorizes the construction and expansion of golf courses and the expansion of ski areas that are integrated into the natural landscape. These types of recreational facilities can be constructed without substantial amounts of grading and filling. NWP 42 does not authorize the construction of new ski areas, but this NWP may authorize discharges of dredged or fill material into waters of the United States to improve existing ski areas, provided the activity meets the terms and conditions of this NWP.
This NWP does not authorize the construction or expansion of playing fields because these activities typically require substantial grading and filling to create level playing surfaces, as well as the installation of drainage systems. The construction or expansion of basketball courts, tennis courts, racetracks, stadiums, and areas involve the construction of substantial amounts of impervious surfaces and therefore are not authorized by this NWP. Recreational facilities not authorized by this NWP may be authorized by other NWPs, regional general permits, or individual permits.
This NWP does not authorize discharges of dredged or fill material into waters of the United States to stabilize areas within the recreational facility. NWP 13 may authorize bank stabilization activities associated with the recreational facility. Small amounts of impervious surface may be constructed in recreational facilities authorized by this NWP to satisfy access requirements for disabled persons. District engineers will determine on a case-by-case basis whether the construction or expansion of a proposed recreational facility will result in substantial changes in preconstruction grades.
Two commenters supported the proposed 1 acre limit. Several commenters stated that the proposed acreage limit is too large. One commenter said that the acreage limit should be 1/2 acre and two commenters suggested a 1/3 acre limit. A commenter recommended a 100 linear foot limit for stream bed impacts and two commenters suggested a 250 linear foot limit for stream bed impacts.
To ensure that this NWP authorizes activities with minimal adverse effects on the aquatic environment, we have reduced the acreage limit to 1/2 acre and added a 300 linear foot limit for filling or excavating perennial or intermittent stream beds.
Two commenters said that this NWP should have the same PCN thresholds as NWP 39. Two commenters recommended a PCN threshold of 1/
3 acre. One commenter supported the 500 linear foot PCN threshold for perennial and intermittent stream bed impacts. Three commenters stated that the PCN threshold for stream bed impacts should be reduced to 250 linear feet.
We have reduced the PCN threshold to 1/10 acre. Since we have added a 300 linear foot limit for stream bed impacts, we have deleted the 500 linear foot PCN threshold for perennial and intermittent stream bed impacts.
One commenter said that the phrases "has low impact on the aquatic environment" and "consists primarily of open space that" should be deleted from NWP 42 because they are confusing and will cause inconsistent implementation of this NWP. Several commenters indicated that a compensatory mitigation proposal to offset losses of waters of the United States should be required for all activities that require notification.
We have deleted these phrases from the text of NWP 42. We do not agree that it is necessary to require a compensatory mitigation proposal with the PCN, because of the types of recreational facilities authorized by this NWP.
Several commenters said that this NWP should not authorize discharges of dredged or fill material into wetlands for the construction of stables and sanitary facilities. One commenter stated that support facilities should be authorized by NWP 39. Another commenter remarked that support facilities should be constructed in uplands. One commenter said that restaurants and hotels should be authorized by this NWP because these facilities support the recreational facility. One commenter requested a definition of the term "small support facilities." A commenter stated that the phrase "reduced fertilizer use" should be replaced with the term "appropriate fertilizer use" in the last paragraph of this NWP.
We maintain our position that this NWP should authorize small support facilities necessary for the operation of the recreational facility. Permittees are required to comply with General Condition 19, which states that the project proponent must avoid and minimize activities in waters of the United States on-site to the maximum extent practicable. We maintain our position that restaurants and hotels should not be authorized by this NWP. Restaurants and hotels can be authorized by other NWPs, such as NWP 39, regional general permits, or individual permits. District engineers will determine, for those activities that require notification, what constitutes a "small" support facility that is authorized by this NWP. We believe that the term "reduced fertilizer use" is more appropriate because the intent is to encourage permittees to utilize less fertilizer, which will reduce fertilizer loads on neighboring waterbodies.
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 NWP 42 activities 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 42 is issued with the modifications discussed above.
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