IV. Comments and Responses on Nationwide Permit General Conditions
In the July 21, 1999, Federal Register notice, the Corps announced its decision to combine the NWP General Conditions with the Section 404 Only conditions. Two commenters supported this change. In the July 21, 1999, Federal Register notice, the Corps proposed to modify nine NWP general conditions and add three new NWP conditions. In response to that Federal Register notice, we received many comments on specific NWP general conditions.
The general conditions in this Federal Register notice will apply to all of the NWPs, including the NWPs published in the December 13, 1996, Federal Register notice, unless a particular general condition applies only to specific NWPs listed in that general condition. The general conditions published today will become effective on June 5, 2000.
4. Aquatic Life Movements: In the July 21, 1999, Federal Register notice, we proposed to modify this general condition by adding a requirement for culverts to be installed to maintain low flow conditions.
One commenter stated that there are situations, such as stream channels with bedrock substrate, where culverts cannot be installed below grade to maintain low flows. This commenter requested that the Corps remove the requirement to install culverts to maintain low flows. Another commenter asked the Corps to remove the word "substantially" from this general condition because it imposes a threshold that is too high for activities that result in minimal adverse effects on the aquatic environment.
We do not agree that it is necessary to add an exclusion for stream beds that consist solely of bedrock. Road crossings in these streams can be constructed through other means, such as bridges or fords, that allow low flows to pass through the crossing. It is important to maintain low flow conditions to minimize disruptions to movements of aquatic organisms.
We have retained the word "substantially" in the text of this general condition because the removal of this word would change the requirement from "minimal adverse effect" to "no adverse effect." We recognize that most work in waters of the United States will result in some disruption in the movement of aquatic organisms through those waters. District engineers will determine, for those activities that require notification, if the disruption of aquatic life movements is more than minimal and either add conditions to the NWP to ensure that the adverse effects are minimal or exercise discretionary authority and require an individual permit. This general condition is adopted as proposed.
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