13. Notification: In the July 21, 1999, Federal Register notice, we proposed to change the 30 day PCN review period to 45 days, and include a requirement for district engineers to determine whether a PCN is complete within 30 days of the date of receipt.
Two commenters supported the proposed changes to the PCN review period. Many commenters objected to the proposed changes, stating that allowing 30 days for a completeness review and 45 days to determine whether the proposed work qualifies for NWP authorization makes the NWP process similar to the standard permit process, in terms of processing times. Two commenters remarked that the 30-day completeness review period should be included in the 45-day PCN review period. Two commenters said that the PCN should be considered complete if the Corps does not request additional information prior to the end of the 30 day completeness review period, so that the Corps cannot defer processing the PCN indefinitely. One commenter suggested that the Corps notify prospective permittees, through telephone calls or postcards, if their PCNs are complete. This commenter said that such a process would relieve some burdens associated with the proposed revisions to the notification process. Another commenter recommended modifying General Condition 13 to impose a time limit for the Corps to notify prospective permittees that all of the requested information has been received.
The 30 day completeness review period and the 45 day PCN review period are not independent of each other (i.e., they do not add up to a 75 day review period for NWP activities). If a prospective permittee submits a complete PCN to the Corps district office, the 45 day PCN review period begins on the date of receipt and the district engineer must decide whether to issue an NWP verification or exercise discretionary authority within 45 days. If the 30 day completeness review period has passed since the date of receipt of a PCN and the district engineer has not requested additional information to make the PCN complete, the applicant can assume the PCN is complete.
Other commenters recommended different time limits for PCN completeness reviews. One commenter said that the completeness review should be done on the date of receipt of the PCN and the applicant should be notified immediately that additional information is necessary to begin the PCN process. Other recommended time periods for completeness review included 7, 10, and 15 days. One commenter objected to the 30 day completeness review period, stating that it was longer than the completeness review period for standard permits (i.e., 15 days).
It is impractical for district engineers to conduct completeness reviews on the date of receipt. We believe the 30 day completeness review period is necessary because district engineers can make only one request for the information needed for a complete PCN.
Two commenters requested clarification whether the 45 day PCN review period starts on the day the Corps determines the PCN to be complete or the date the complete PCN is received in the district office. One commenter asked if the verification of wetland delineations would be done within the 30 day completeness review period. Two commenters supported allowing only one request for additional information. One commenter asserted that allowing only one request for additional information would cause Corps personnel to request large amounts of information, whether or not that information is necessary for the review of the PCN.
The 45 day PCN review period begins on the date of receipt of a complete PCN. If a complete PCN is submitted, the 45 day PCN review period starts on the date of receipt. If the PCN is incomplete and the prospective permittee submits the necessary information to make the PCN complete, the 45 day PCN review period starts on the date the additional information is received by the district engineer. The verification of delineations of special aquatic sites will be conducted during the 30 day completeness review period. A complete PCN is comprised of the information listed in paragraph (b) of General Condition 13. If the prospective permittee provides all of the relevant information listed in paragraph (b), then the PCN is complete (provided any delineations of special aquatic sites are accurate) and the 45 day PCN review period begins. District engineers cannot request information not listed in paragraph (b). If the district engineer believes that the proposed work may result in more than minimal adverse effects on the aquatic environment, based on the information required for the PCN, then he or she should exercise discretionary authority and require an individual permit to conduct a more thorough review of that activity.
Many commenters suggested that the Corps retain the 30 day PCN review period. One commenter said that 15 days would be adequate for the Corps to determine whether a complete PCN would qualify for NWP authorization and another commenter suggested a 40 day review period. Many commenters stated that the larger workload caused by the proposed new and modified NWPs is not sufficient justification for increasing the PCN review period to 45 days and requested that the Corps maintain the 30 day period.
We contend that the 45 day period is necessary to determine if a PCN is complete (within 30 days), conduct agency coordination if necessary, and review the PCN to determine if the proposed work is authorized by NWP. NWP 26 had a PCN review period of 45 days and we believe it is necessary to retain this time period for the new NWPs.
Several commenters stated that paragraph (b) of General Condition 13 should clearly state what is required for a complete PCN, so that applicants will know what they need to submit to the district engineer. These commenters also said that clearly stating what is required for a complete PCN would promote consistency. One commenter requested that the Corps clarify whether the phrase "additional information" refers only to the items necessary to make the PCN complete or to any other information that the district engineer believes is necessary for the review of the PCN. One commenter recommended adding a requirement for prospective permittees to supply all information identified in the NWP, special conditions, and regional conditions, as well as any information required by the district engineer. Two commenters objected to the amount of information required for PCNs.
Paragraph (b) of General Condition 13 lists all of the information necessary for a complete PCN. Corps districts can provide checklists to assist prospective permittees, especially if they have regional conditions that specify additional information that must be submitted with PCNs. The phrase "additional information" as used in the context of General Condition 13 refers only to the information that is necessary to make the PCN complete. We have limited the amount of information that must be submitted with a PCN to the minimum necessary to determine whether the proposed work will result in minimal adverse effects on the aquatic environment, individually and cumulatively.
Two commenters said that the statement in General Condition 13 indicating that the permittee can commence work if the district engineer does not respond to the PCN within 45 days is meaningless because of the suspension procedures at 33 CFR 330.5(d)(2), which allow the Corps to stop NWP activities in progress. These commenters said that the permittee cannot safely proceed with the activity until he or she receives authorization from the Corps.
Some prospective permittees may want assurance that the proposed work is authorized by NWP and will not start work until a written verification is received from the Corps. The procedures at 33 CFR 330.5(d)(2) provide a process where a permittee who begins work after the 45 day PCN period expires can make their case that they have expended resources and it would be inequitable for the Corps to modify their project.
One commenter suggested that the PCN review period should be waived in states using monthly coordination meetings to review and process permit applications. One commenter suggested adding a fourth item in paragraph (a), which would state that the prospective permittee shall not begin the activity "If the District Engineer has notified the prospective permittee in writing that the notification is still incomplete."
Paragraph (a) of General Condition 13 does not prohibit district engineers from responding to PCNs in a more timely manner provided all other requirements are completed. Paragraph (a) clearly states that district engineers will notify prospective permittees if their PCNs are still incomplete, and since the 45 day clock does not start until the PCN is complete, the prospective permittee may not start work.
One commenter stated that all PCNs should include delineations of special aquatic sites. Another commenter recommended adding NWPs 3 and 31 to paragraph (b)(4). One commenter said that delineations of riffle and pool complexes should not be required for PCNs because such a requirement imposes burdens on applicants, especially on large projects such as highways. A commenter suggested that the phrase "submerged aquatic vegetation" used in paragraph (b)(4) should refer only to vascular plants.
We do not agree that delineations of special aquatic sites should be submitted with all NWP PCNs. Since NWPs 3 and 31 authorize maintenance activities, it is not necessary to submit delineations of special aquatic sites with PCNs for these activities. Maps indicating stream segments containing riffle and pool complexes and their location can be used as delineations of these special aquatic sites. It is not necessary to map each riffle and pool complex within a stream. The phrase "submerged aquatic vegetation" refers only to vascular plants, not algae.
One commenter suggested that the Corps revise paragraph (b) of General Condition 13 to require documentation of baseline conditions for NWP 3 activities. This commenter also recommended that PCNs for NWP 3, 7, and 31 activities should include locations of disposal sites for dredged or excavated material. One commenter said that detailed mitigation and monitoring plans should be submitted with PCNs for activities authorized by NWPs 12, 14, 39, 40, 41, 42, 43, and 44. One commenter indicated that a statement discussing on-site avoidance and minimization should be required for all NWP activities that require PCNs. Another commenter asserted that a statement of avoidance and minimization should be required for NWPs 12, 14, 40, 41, and 42. One commenter said that the information required to be submitted with a PCN is inadequate to ensure compliance with ESA.
The text of paragraph (iii) of NWP 3 states that the permittee "should" provide evidence to justify the extent of the proposed restoration, but such evidence is not required. We do not agree that it is necessary to include location maps of disposal sites for dredging or excavation activities authorized by NWPs 3, 7, and 31, because the material removed from waters of the United States will not be deposited in waters of the United States, unless the district engineer issues a separate authorization to discharge that material into waters of the United States. Under that separate authorization process, the district engineer will assess the impacts to the disposal site. We maintain our position that compensatory mitigation plans, including monitoring plans, submitted with a PCN can be either conceptual or detailed. District engineers can require more detailed compensatory mitigation plans through special conditions of the NWP authorization where appropriate. We also do not agree that avoidance and minimization statements should be required for other NWPs. We maintain our position on this matter as it was discussed in the July 21, 1999, Federal Register notice. The information that must be submitted with a PCN is adequate for the Corps to make its initial determination concerning compliance with ESA.
Two commenters noted that the Corps did not add a provision to paragraph (b) of General Condition 13 that requires prospective permittees to submit a list of names of Federally-listed endangered or threatened species and the names or locations of historic properties that may be affected by the proposed work. The Corps stated in the July 21, 1999, Federal Register notice (64 FR 39340) that it would add these provisions to General Condition 13.
We have added these requirements to paragraph (b) of General Condition 13 as subparagraphs (17) and (18), respectively. In addition, we have modified subparagraph (b)(9) to comply with the recent modification of NWP 29, which reduced the acreage limit to 1/4 acre (see 64 FR 47175). We have also added subparagraph (b)(19), which describes the documentation that must be submitted with the PCNs for certain NWP activities within 100-year floodplains.
In paragraph (d) of the proposed modification of General Condition 13, one commenter objected to the use of the term "net" in the context of determining whether the adverse effects to the aquatic environment are minimal, after considering compensatory mitigation that offsets impacts authorized by NWPs. This commenter says that the wording of the second sentence of paragraph (d) is contrary to the Corps policy of determining that impacts authorized by NWPs are minimal without considering mitigation. One commenter asked if the term "mitigation" in paragraph (d) refers to compensatory mitigation. Another commenter requested a definition of the term "adverse" as it is used in the context of paragraph (d). One commenter requested that the Corps clarify whether the word "work" in paragraph (d) refers only to mitigation work or the permitted activity.
The language of paragraph (d) complies with Corps regulations for the NWP program, specifically 33 CFR 330.1(e)(3), which provides for the use of compensatory mitigation to offset losses of waters of the United States authorized by NWPs and ensure that the adverse effects on the aquatic environment are minimal. The word "mitigation" in the second sentence of paragraph (d) refers to the mitigation process. We do not agree that it is necessary to provide a definition of the term "adverse" since the commonly used definition is applicable. The word "work" refers to the proposed activity, but the compensatory mitigation is also considered when determining whether the adverse effects on the aquatic environment are minimal.
Two commenters supported the 1 acre threshold for agency coordination. One commenter suggested a 1/3 acre threshold. A number of commenters said that agency coordination should be required for all NWP activities that require PCNs. One commenter recommended agency coordination for activities that result in the loss of greater than 250 linear feet of stream bed. One commenter said that PCNs should be coordinated with the U.S. FWS for any NWP activity that could affect Federally-listed endangered or threatened species or their habitats. Another commenter indicated that agency coordination of PCNs should be conducted for any NWP activities in streams or aquatic resources of natural importance.
We are reducing the 1 acre threshold for agency coordination to 1/
2 acre because most of the new NWPs have maximum limits of 1/2 acre. There will be coordination of some PCNs because there are NWPs based on other government programs, such as NWPs 17 and 38, that can authorize activities that result in the loss of greater than 1/2 acre of waters of the United States. If those NWPs require submission of a PCN to the district engineer and the proposed work will result in the loss of greater than 1/2 acre of waters of the United States, then the Corps will conduct agency coordination. Activities that may affect Federally-listed endangered or threatened species or their critical habitat will be coordinated with the U.S. FWS or NMFS, as appropriate. District engineers can conduct agency coordination in other circumstances at their discretion.
One commenter asked for clarification whether a PCN is transmitted to agencies upon receipt of the PCN or whether the PCN must be determined to be complete before it is sent to the agencies. Two commenters said that, for activities requiring agency coordination, the applicant should mail copies of the PCN to the review agencies to expedite the PCN process. One commenter recommended adding the Federal Emergency Management Agency (FEMA) to the list of agencies for coordination. Another commenter said that the Corps should provide written responses to agency comments received in response to PCNs. One commenter recommended inserting the word "aquatic" between the words "adverse environmental" in paragraph (e).
We do not start agency coordination until we determine that the PCN is complete. It would not be advantageous for a prospective permittee to submit a PCN directly to review agencies because the PCN may not be complete. District engineers can, at their discretion, include FEMA with the other review agencies. We do not agree that district engineers should provide written responses to agency comments, except where Essential Fish Habitat (EFH) conservation recommendations are received from NMFS in response to a PCN. There is a statutory requirement in the Magnuson-Stevens Fishery Conservation and Management Act for Federal action agencies to provide written responses to EFH conservation recommendations. We have modified paragraph (e) to address this requirement. We agree that we should include the word "aquatic" in the first sentence of paragraph (e).
Two commenters opposed the proposed changes to the agency coordination period. Three commenters said that 15 days is enough time for agency coordination. Other commenters suggested 5, 10, or 30 days for agency coordination. One commenter recommended 45 days for agency coordination, with the ability for agencies to receive an extension of time. One commenter requested clarification whether the 25 day agency review period is added to the 45 day PCN review period or whether the agency coordination process occurs during the 45 day PCN review period. One commenter said that the 25 day agency coordination period conflicts with ESA regulations, which provide 30 days to respond to a request for a list of species that may occur in the project area.
We will maintain the 10 day period for agencies to request an additional 15 days to provide substantive, site-specific comments on PCNs. Twenty-five days is sufficient for agencies to comment on PCNs. The agency coordination process occurs during the 45 day PCN review period. During the agency coordination period, the Corps is not requesting a list of Federally-listed endangered or threatened species that may be in the project area. Therefore, the agency coordination period does not violate ESA regulations.
Several commenters objected to the text in paragraph (f) that requires wetland delineations to be performed in accordance with the current method required by the Corps. These commenters assert that this language allows Corps personnel to use methods and criteria that are not in the 1987 Corps of Engineers Wetlands Delineation Manual and expand the Corps jurisdiction. These commenters said that the text of this paragraph should be revised to specifically reference the 1987 Corps of Engineers Wetlands Delineation Manual. Another commenter recommended that paragraph (f) include a statement that the permittee is responsible for the accuracy of the delineation of special aquatic sites.
We do not agree with these commenters. The only currently acceptable method that the Corps uses for delineating wetlands is the 1987 Corps of Engineers Wetlands Delineation Manual and associated guidance. We will not change the text of paragraph (f) because the required delineation manual may change in the future.
Several commenters recommended combining paragraph (g) of General Condition 13 with General Condition 19 so that the mitigation requirements of the NWPs would be in one general condition. One commenter suggested that deed restrictions and protective covenants should be required as part of a compensatory mitigation proposal submitted with a PCN. One commenter recommended that the Corps reinstate the following language into subparagraph (ii) of paragraph (g): "* * *should consider mitigation banking and other forms of mitigation including contributions to wetland trust funds, in lieu fees to non-profit land restoration and stewardship organizations, State or county natural resource management agencies, where such fees contribute to the restoration, creation, replacement, enhancement, or preservation of wetlands."
We have moved paragraph (g) of General Condition 13 to General Condition 19. Prospective permittees can submit either conceptual or detailed compensatory mitigation proposals with their PCNs, but they are not required to submit deed restrictions or protective covenants at that time. As special conditions to a NWP verification, the district engineer may require deed restrictions or protective covenants for compensatory mitigation projects. We do not agree that it is necessary to put the referenced text back into the general condition because General Condition 19 allows district engineers the flexibility to consider all appropriate forms of compensatory mitigation, including mitigation banks and other consolidated approaches to compensatory mitigation.
One commenter objected to the statement in paragraph (g) of the proposed modification of General Condition 13 that identifies mitigation banks, in lieu fee programs, and other types of consolidated mitigation as preferred methods. This commenter said that if compensatory mitigation is necessary, the method should be at the discretion of the applicant and consider economic and environmental factors. This commenter also stated that the Corps should only determine if the compensatory mitigation method chosen by the applicant is appropriate.
Our preference for consolidated compensatory mitigation methods such as mitigation banks does not prohibit the use of other methods to provide compensatory mitigation, if the district engineer determines that the other methods are appropriate and adequately offset losses of aquatic resource functions and values. General Condition 19 clearly states that mitigation must be practicable, and the district engineer will consider costs and environmental factors when determining if the prospective permittee's compensatory mitigation proposal is acceptable.
Two commenters stated that the Corps should post PCNs on the Internet. Another commenter concurred with the Corps position against posting PCNs on the Internet, stating that such a process would result in delays to the regulated public and provide no additional value to the review of PCNs.
As discussed in the July 21, 1999, Federal Register notice, we maintain our position that posting of PCNs on Internet home pages would provide no added value to our review of these PCNs.
This general condition is adopted with the modifications discussed above.
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