9. Water Quality: The draft modification of General Condition 9 that was published in the July 21, 1999, Federal Register notice required permittees to develop and implement water quality management plans for activities authorized by NWPs 12, 14, 17, 18, 32, 39, 40, 42, 43, and 44, if such a plan is not required by the state or Tribal Section 401 water quality certification. The draft modification of this general condition also required the establishment and maintenance of vegetated buffers next to open waters, such as streams.
To clarify the requirements of General Condition 9, we have divided this general condition into two paragraphs. Paragraph (a) discusses the requirement for individual water quality certifications. Paragraph (b) addresses the requirement for water quality management plans, including vegetated buffers.
Many commenters objected to the requirement for a water quality management plan, stating that the Corps lacks the statutory authority to require such a plan. A large number of commenters said that this requirement is duplicative of existing programs, such as state or Tribal water quality certification (WQC) and National Pollutant Discharge Elimination System programs. Several commenters stated that the Corps does not have the authority to determine whether a particular state or Tribal program adequately addresses water quality. Two commenters remarked that the Corps cannot override a state's WQC decision. Several commenters said that the proposed modification of General Condition 9 is not consistent with 33 CFR 320.4(d), which states that: "[c]ertification of compliance with applicable effluent limitations and water quality standards required under provisions of section 401 of the Clean Water Act will be considered conclusive with respect to water quality considerations unless the Regional Administrator, Environmental Protection Agency (EPA), advises of other water quality aspects to be taken into consideration." A number of commenters said that the Corps does not have the expertise to assess the effectiveness of water quality management plans or stormwater management plans for particular activities. One commenter asked for a definition of the term "water quality management plan."
Two commenters objected to the proposed modification of General Condition 9 because it requires stormwater management plans, even if those plans are not required by state or local governments. One commenter supported the statement in the July 21, 1999, Federal Register notice that a water quality management plan is not required if water quality issues are adequately addressed by state or local governments. One commenter objected to a statement in the July 21, 1999, Federal Register notice that a water quality management plan is not required for activities that have minimal adverse effects on local water quality. This commenter said that this statement is illogical because the NWPs can authorize only activities that have minimal adverse effects on the aquatic environment. Several commenters agreed that a water quality management plan should not be required for activities that have minimal adverse effects and requested that the Corps add appropriate language to General Condition 9 because the draft general condition published in the July 21, 1999, Federal Register notice does not provide that flexibility. Several commenters stated that the requirement for water quality management plans will substantially increase costs for local governments and the regulated public. One commenter suggested that the Corps should rely on standard best management practices to protect water quality, instead of requiring case-specific water quality management plans.
A goal of the Clean Water Act, as stated in section 101 of the Act, is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. We maintain our position that the requirement for a water quality management plan for certain NWPs is necessary to ensure that activities authorized by those NWPs do not result in more than minimal adverse effects to water quality. We can require water quality management plans through our statutory authority under section 404 of the Clean Water Act, because the goal stated in section 101 applies to all sections of the Clean Water Act.
A water quality management plan is a mechanism to ensure that the activity authorized by NWP causes only minimal adverse effects on water quality. It can include stormwater management techniques and vegetated buffers next to open waters to protect water quality. The terms of General Condition 9 are not intended to replace existing state or Tribal section 401 requirements. In regions with strong water quality programs, district engineers will defer to state, Tribal, and local requirements and will not require water quality management plans as special conditions of NWP authorizations. If the 401 agency or other state or local agency does not require adequate measures to protect downstream water quality, we have the authority to require measures, including the construction of stormwater management facilities or the establishment of vegetated buffers next to open waters, that will minimize adverse effects to water quality.
If a district engineer determines that a water quality management plan is unnecessary because the authorized work will result in minimal adverse effects on water quality, then a water quality management plan is not required. For example, the district engineer may determine that a water quality management plan is not required for an activity in a watershed that is not substantially developed. In addition, a water quality management plan is not necessary for activities that are serviced by a regional stormwater management system. We have modified the first sentence of paragraph (b) by replacing the phrase "provide for protection of aquatic resources" with the phrase "will ensure that the authorized work does not result in more than minimal degradation of water quality" to clarify why a water quality management plan may be required by the district engineer.
We have also modified the second sentence of paragraph (b) by replacing the word "project" with the phrase "water quality management plan." This clarifies that stormwater management is a component of the water quality management plan. If the district engineer determines that a water quality management plan is not required because a specific activity will have minimal adverse effects on water quality, then stormwater management methods are not necessary if they are not required by state or local governments.
We recognize that the development and implementation of a water quality management plan may increase costs to the regulated public. It is important to note that the purpose of the water quality management plan is to ensure that the authorized work results in minimal adverse effects on the aquatic environment, especially water quality. In most cases, the requirements of the Section 401 water quality certification and state or local stormwater management requirements will adequately address these issues. These state and local requirements already incur costs on project proponents and we do not agree that the requirements of General Condition 9 will impose substantial additional costs. Since site conditions are extremely variable between geographic regions of the country, we do not agree that generic best management practices are a better approach to address water quality concerns.
Several commenters objected to the requirements of General Condition 9, because the Corps does not define what constitutes a "strong" state water quality program. These commenters said that this requirement would confuse the regulated public because they cannot know when a water quality management plan will be required by the Corps for a particular NWP activity. Two commenters recommended that the Corps add language to General Condition 9 stating that water quality management plans will not be required in states with strong water quality programs. A commenter objected to the proposed modification of General Condition 9 because a district engineer may require modifications that conflict with the requirements of a state-issued WQC. Another commenter said that the Corps should coordinate water quality management requirements with state or local authorities, which would reduce redundancy and assist in enforcement.
We cannot define, at a national level, what constitutes a strong state water quality program. Corps districts can make a programmatic determination that a particular state, Tribe, or local government has a strong water quality program and therefore the Corps would not require project-specific water quality management plans in those jurisdictions. Where these programmatic determinations have not been made, district engineers will determine, on a case-by-case basis, when water quality management plans are necessary. A water quality management plan for a particular activity may be required as a special condition to the NWP authorization, whereby the permittee would submit the specifics of the water quality management plan to the district engineer prior to starting the work. We do not agree that it is necessary to explicitly state in the text of General Condition 9 that water quality management plans will not be required in states with strong water quality programs because this issue is adequately addressed in the preamble.
It is unlikely that a district engineer will request modifications to a particular activity that conflicts with WQC requirements, although the district engineer may require additional measures that are more stringent than the WQC conditions. We encourage district engineers to coordinate water quality management requirements with state and local authorities, to effectively implement the provisions of General Condition 9.
One commenter suggested that the Corps add language to this general condition that explains that the standard to be achieved is "minimal" degradation, not "no" degradation of water quality. This commenter cited the requirement of minimal degradation that was discussed in the preamble in the July 21, 1999, Federal Register notice. Two commenters objected to the proposed modification of General Condition 9 because the Corps has not defined what constitutes acceptable "minimal degradation to water quality" or "minimal adverse effects to water quality."
General Condition 9 does not contain a "no degradation" standard. General Condition 9 requires methods to minimize degradation of downstream aquatic habitats. We cannot provide national definitions of the terms "minimal degradation" or "minimal adverse effects" to water quality because aquatic systems vary considerably across the country. District engineers will utilize their knowledge of local aquatic resources to make these determinations.
Several commenters requested that the Corps add language to this general condition that states that the requirements of General Condition 9 apply only to activities that result in discharges of dredged or fill material into waters of the United States, not to activities in uplands. These commenters cited the example in the preamble to the July 21, 1999, Federal Register notice, which indicated that the water quality management plan does not apply to the entire upland site if only a small amount of waters of the United States are filled to provide access to an upland development site. Two commenters stated that the Corps needs to provide a definition of the term "project" as it is used in the context of this general condition, because the general condition requires the establishment and maintenance of vegetated buffers if the activity occurs in the vicinity of open waters. These commenters asserted that the Corps cannot require stormwater management facilities or vegetated buffers to offset adverse effects caused by activities outside of waters of the United States.
The requirements for water quality management plans, including vegetated buffers next to open waters, apply only to those NWP activities that involve discharges of dredged or fill material into waters of the United States. Water quality management plans are required only for those NWPs listed in paragraph (b). We have also modified this general condition to state that vegetated buffers next to open waters are an important component of the water quality management plan. We have included a reference to General Condition 19, which contains the vegetated buffer requirements for the NWPs, in General Condition 9.
The requirement for a water quality management plan does not apply to activities in uplands, if the discharge of dredged or fill material into waters of the United States constitutes only a small portion of the entire activity. In this situation, if a water quality management plan is necessary to ensure that the activity in waters of the United States causes only minimal degradation of water quality, the water quality management plan would address only the specific activity that results in discharges or dredged or fill material into waters of the United States. However, if a large proportion of the project area is comprised of waters of the United States, then the water quality management plan should consider those upland areas within the project area to ensure that the overall activity will result in minimal adverse effects to water quality. Since the applicable area for the water quality management plan depends on the proportion of the project area that is composed of waters of the United States, we cannot provide a definition of the term "project" for the purposes of this general condition.
A commenter requested that the Corps specify the information that should be included in a water quality management plan. One commenter stated that the general condition should include a qualitative assessment procedure. Several commenters stated that water quality management requirements must be directly related to an identifiable water quality concern that is caused by the authorized discharge of dredged or fill material into waters of the United States. A commenter recommended adding a statement to this general condition explaining that water quality mitigation will be required when necessary to address site-specific water quality concerns and that the required mitigation will be accomplished through the most cost-effective method to address those concerns. Several commenters suggested that the Corps add a definition of the term "practicable" as it is used in the context of this general condition.
We cannot specify the components of a water quality management plan because these requirements will vary across the country. In general, stormwater management techniques and vegetated buffers next to open waters can be components of a water quality management plan. The language of General Condition 9 is intended to allow flexibility and minimize the amount of information necessary to determine compliance with its requirements. We cannot include a qualitative assessment procedure in the text of the general condition because of the variability in aquatic resources across the country. District engineers have their own criteria for assessing impacts to water quality, based on local conditions. District engineers will use their judgement to qualitatively determine if a particular activity complies with this general condition and will not require extensive analyses or reviews. Detailed studies are not required. We contend that these assessments should be left to the judgement of district engineers and will not establish a national assessment procedure. Water quality management requirements will be directly related to the activity authorized by NWP, to ensure that the authorized activity results in minimal adverse effects on local water quality.
Water quality management techniques must be practicable and capable of being accomplished by the permittee. For the purposes of General Condition 9, the definition of the term "practicable" is the same as the definition in the first sentence of paragraph (a) of General Condition 19. Measures required by district engineers to ensure that activities authorized by NWPs do not result in more than minimal adverse effects to water quality must be practicable, while allowing the proposed work to accomplish the overall project purpose. For example, the establishment and maintenance of vegetated buffers next to open waters on the project site will help protect water quality, but the width of those vegetated buffers must not reduce the amount of developable land on the project site to the extent that the proposed work is no longer technologically or economically viable.
One commenter recommended expanding the water quality management plan requirement to NWPs 3, 7, 8, 21, 23, 29, and 33. One commenter indicated that water quality management plans should not be required for NWP 44 activities because such plans are already required for hard rock/mineral mining operations. One commenter suggested waiving the water quality management plan requirement for discharges of dredged or fill material into ephemeral streams. One commenter stated that the requirement for stormwater management should apply only to activities that impact more than 4 acres of land.
We do not agree that water quality management plans should be required for activities authorized by NWPs 3, 7, 8, 21, 23, 29, and 33. We addressed the applicability of this general condition to NWP 21 in the preamble of the July 21, 1999, Federal Register notice and have not changed our position on this issue. The other NWPs listed in the first sentence of the previous paragraph authorize activities that typically have minor impacts on water quality. Even though other laws or regulations require water quality management plans for hard rock/
mineral mining activities, we are not aware of a similar requirement for aggregate mining activities. Therefore, we do not agree that NWP 44 should be removed from the list of applicable NWPs. District engineers can determine, on a case-by-case basis, that water quality management plans are not required for activities involving discharges of dredged or fill material into ephemeral streams. We do not agree that there should be a minimum project size to determine when stormwater management facilities are necessary.
Numerous commenters addressed the vegetated buffer requirement in the proposed modification of this general condition. Two commenters requested clarification whether the establishment and maintenance of vegetated buffers are required for all NWPs or only the NWPs listed in the second sentence of the proposed modification of General Condition 9. Two commenters said that vegetated buffers should not be required under all circumstances and that district engineers should use their discretion on a case-by-case basis. Several commenters recommended the removal of the vegetated buffer requirement from this general condition. Two commenters stated that vegetated buffers should be required only to address site-specific water quality concerns when the establishment and maintenance of vegetated buffers is practicable.
For the purposes of General Condition 9, vegetated buffers should be an important component of a water quality management plan. The vegetated buffer requirements for the NWPs are discussed in paragraph (b) of General Condition 19. If there are not any open waters on the project site, then vegetated buffers are not required. In addition, vegetated buffers are not required for Section 404 activities that result only in minimal adverse effects to water quality. District engineers will determine, on a case-by-case basis, when vegetated buffers are necessary to ensure that the authorized work results only in minimal adverse effects. The use of vegetated buffers in the NWP program is discussed in more detail in a previous section of this Federal Register notice.
Several commenters requested that the Corps clarify what is meant by the phrase "in the vicinity" of an open waterbody as it relates to the vegetated buffer requirement. Two commenters recommended that the Corps replace "vicinity" with "contiguous" to more clearly establish a direct relationship between the vegetated buffer requirement and the impacts caused by the authorized work. Two commenters said that the phrase "to the maximum extent practicable" needs to be defined for the purposes of the vegetated buffer requirement.
The term "in the vicinity" as used in the context of this general condition, means the parcel where the activity is located. If there are not any open waters on the project site, then vegetated buffers are not required. We have replaced the word "adjacent" with the word "next" to clarify that the vegetated buffer is to be established and maintained on land next to the open waterbody. We do not agree that the word "vicinity" should be replaced with "contiguous" because the requirement for vegetated buffers applies only to open waters on the project site. We have removed the phrase "to the maximum extent practicable" as it was used in the context of the vegetated buffer requirement in the proposed general condition. This general condition is adopted with the modifications discussed above.
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