24. Removal of Temporary Fills: In the July 21, 1999, Federal Register notice, we did not propose any changes to this general condition. One commenter requested clarification as to what constitutes a "temporary" fill by establishing time limits. Another commenter said that certain temporary fills, such as gravel, may be used by project proponents and left in stream beds to enhance habitat for spawning fish species. This commenter suggested that the Corps modify this general condition to allow temporary fills to remain in waters of the United States if those fills are for a permit requirement of any other regulatory agency.
District engineers will determine, on a case-by-case basis, what constitutes a temporary fill. Fills that are left in waters of the United States as a condition of permit issued by another agency must also be authorized by Section 404 of the Clean Water Act (and Section 10 of the Rivers and Harbors Act if the fill is in navigable waters). These fills may be authorized by NWPs, regional general permits, or individual permits. This general condition is retained without change.
General Comments on Proposed General Conditions 25, 26, and 27: In the July 21, 1999, Federal Register notice, we proposed three new NWP general conditions that would limit the use of NWPs in designated critical resource waters, impaired waters, and waters of the United States within 100-year floodplains.
A number of commenters supported the three proposed NWP general conditions. Many commenters objected to the proposed general conditions, stating that there is no need for these restrictions. Several commenters opposed these three general conditions, because they duplicate other programs. Several commenters stated that the proposed general conditions will not provide any environmental benefits. Several commenters said that concerns for critical resource waters, impaired waters, and 100-year floodplains can be adequately addressed through the PCN process and the ability of district engineers to exercise discretionary authority on those activities that will result in more than minimal adverse effects on the aquatic environment. Other commenters stated that regional conditions would adequately address these issues.
After reviewing the comments addressing the three proposed NWP general conditions, we have decided to adopt proposed General Condition 25, Designated Critical Resource Waters, and proposed General Condition 27, Fills Within the 100-year Floodplain. We have decided to withdraw proposed General Condition 26, Impaired Waters. Proposed General Condition 27 has been substantially modified, as discussed below. This general condition has been designated as General Condition 26, Fills Within 100-year Floodplains. The new general conditions, in conjunction with the 1/2 acre limit for most of the new NWPs, will provide substantial environmental benefits. We do not agree that regional conditions are a better mechanism to address these issues, since the new general conditions address issues of national concern.
Several commenters said that the proposed new NWP general conditions will substantially reduce the regulated public's ability to efficiently obtain authorization for activities that have minimal adverse effects on the aquatic environment. Two of these commenters remarked that it will be more difficult to obtain authorization for maintenance activities. Several commenters stated that the proposed general conditions replace the "minimal adverse effect" criterion of the NWPs with a "no effect" criterion. Numerous commenters asserted that the assumption that activities in designated critical resource waters, impaired waters, and 100-year floodplains will result in more than minimal adverse effects on the aquatic environment is incorrect. These commenters said that many activities authorized by NWPs in these areas may actually improve water quality or provide essential public health and safety functions.
The two new NWP general conditions will not make it more difficult to obtain authorization for maintenance activities. Many maintenance activities are eligible for the Section 404(f) exemptions. NWP 3 activities in designated critical resource waters require notification to the district engineer but may be authorized. General Condition 26 does not restrict NWP 3 or NWP 31 activities in 100-year floodplains. The intent of the new general conditions is to ensure that the NWPs comply with the statutory requirements of Section 404(e) of the Clean Water Act. Although these conditions will limit the use of NWPs in certain waters, activities in these waters may be authorized by other forms of DA permits, such as regional general permits or standard permits.
One commenter stated that the proposed general conditions are contrary to the Corps goal of focusing its limited resources on those activities with the potential for greater environmental impacts. Two commenters said that without additional resources to implement and enforce the three proposed general conditions, there will be a decrease in environmental protection. One of these commenters said that these general conditions are too confusing and difficult to enforce. Two commenters objected to these general conditions because they substantially reduce the geographic area in which the NWPs can be used. One commenter stated that the proposed general conditions improperly change the focus of the NWPs from the type of activity to the location of the activity. Another commenter said that the proposed general conditions are confusing because of specific inconsistencies, such as the imposition of an acreage limit in proposed General Condition 26 without similar acreage limits in proposed General Conditions 25 and 27 or the different applicability of these general conditions for specific NWPs. For example, NWP 39 cannot be used in the 100-year floodplain but it can be used to authorize discharges of fill material into impaired waters and adjacent wetlands.
We agree that the proposed general conditions may have resulted in a decrease in environmental protection. However, the changes we have made will ensure that the conditions will substantially increase protection of the aquatic environment. General Condition 25 restricts the use of NWPs in high value waters, which is analogous to the increased emphasis on regional conditioning we placed on the proposed new and modified NWPs. General Condition 26 will minimize adverse effects to the flood-holding capacity of 100-year floodplains, as well as enhance protection of free-flowing streams in the regulated floodway. Although the two new NWP general conditions reduce the geographic scope of the NWPs, these conditions are necessary to ensure that the NWPs do not authorize activities with more than minimal adverse effects on the aquatic environment. The location of a waterbody or wetland has a substantial influence on the functions and values it provides. For example, a wetland within a 100-year floodplain may provide fish spawning habitat that is not provided by an isolated wetland. The differences in the requirements between the two general conditions are necessary because each of these conditions addresses different issues. Therefore, each of the new NWP general conditions requires different restrictions or limitations to ensure that the NWPs authorize activities with minimal adverse effects on the aquatic environment.
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