25. Designated Critical Resource Waters: In the July 21, 1999, Federal Register notice, we proposed a new general condition that would limit the use of certain NWPs in designated critical resource waters.
Many commenters expressed their support for the proposed general condition. A number of commenters opposed this general condition. One commenter said that General Condition 25 will severely restrict the NWP program and make it unusable. Some commenters stated that NWPs should not authorize activities in designated critical resource waters.
Numerous commenters said the proposed general condition is based on an invalid assumption that all discharges of dredged or fill material into designated critical resource waters will always jeopardize any essential functions that make these waters high value. These commenters stated that this assumption is invalid because the NWPs authorize activities with minimal adverse effects on the aquatic environment. One commenter said that this general condition imposes a "no effect" standard instead of a "minimal effect" standard. Many commenters suggested that protection of designated critical resource waters is more effectively provided through regional conditions imposed by division engineers and the PCN process. The PCN process allows district engineers to add special conditions to NWP authorizations or exercise discretionary authority to require individual permits for activities that result in more than minimal adverse effects on the aquatic environment.
General Condition 25 does not prohibit the use of all NWPs in designated critical resource waters or adjacent wetlands. Only those NWP activities that are likely to result in more than minimal adverse effects on designated critical resource waters are restricted by General Condition 25. Although regional conditions and the PCN process may have fully protected designated critical resource waters, we believe that for the waters listed nationwide restrictions are appropriate. We believe that a national condition is necessary for certain categories of waters.
One commenter said that NOAA-designated marine sanctuaries should be subject to the same restrictions that General Condition 7 imposes on activities in Wild and Scenic Rivers. This commenter stated that the use of NWPs should be allowed if those activities are approved by the agency managing those sanctuaries. This commenter also said that National Estuarine Research Reserves do not require extra protection through General Condition 25 because they are already protected by coastal states and NOAA.
We do not agree that NOAA-designated marine sanctuaries should be subject to the same restrictions as Wild and Scenic Rivers. We believe that the listed NWPs would likely result in more than minimal adverse effects to these important waters. We believe that restricting the use of certain NWPs in National Estuarine Research Reserves is necessary.
Many commenters stated that existing General Condition 7 provides adequate protection for Wild and Scenic Rivers, and recommended the removal of Wild and Scenic Rivers from the list of designated critical resource waters in General Condition 25. Several commenters opposed the inclusion of critical habitat for Federally-listed endangered or threatened species as designated critical resource waters, stating that General Condition 11 already provides sufficient protection for these areas. Numerous commenters objected to the provision in General Condition 25 that requires concurrence from the U.S. FWS or NMFS that the proposed work complies with General Condition 11. One of these commenters said that this provision is contrary to the Endangered Species Act (ESA), which requires consultation only for those activities that adversely affect Federally-listed endangered or threatened species or their critical habitat. Two commenters indicated that this provision inappropriately shifts the responsibility for determining effects on endangered or threatened species from the Corps to the U.S. FWS or NMFS. One commenter said that this provision is not strong enough.
General Condition 25 merely states that activities involving discharges of dredged or fill material into Wild and Scenic Rivers must comply with General Condition 7. This general condition does not impose any additional restrictions on NWP activities in Wild and Scenic Rivers. We believe that the provisions concerning designated critical habitat for Federally-listed endangered or threatened species in General Condition 25 are necessary to ensure compliance with ESA. Moreover, we believe that designated critical habitat deserves the highest level of protection, thus for the NWPs listed, we will seek the concurrence of the FWS to ensure protection.
One commenter recommended the removal of state natural heritage sites from the list of designated critical resource waters. Another commenter said that General Condition 25 will prohibit the use of many NWPs in certain counties, since some state natural heritage sites encompass entire counties. One commenter requested clarification as to what constitutes a "state natural heritage site."
We are maintaining state natural heritage sites in the list of designated critical resource waters because these areas typically contain high value waters. A state natural heritage site has been designated, through a state legislative or regulatory process, as an area that warrants additional protection due to its natural resource characteristics. Therefore, we believe that authorizing projects under NWPs would likely result in more than minimal adverse effects on the aquatic environment.
One commenter objected to including outstanding national resource waters in the list of designated critical resource waters. This commenter said that this general condition should be limited to waters that are defined by Federal standards, not state standards, because there is a need for consistency across state boundaries. Two commenters said that outstanding national resource waters already receive special protection from states through an existing program. These commenters cited EPA's regulations at 40 CFR 131.12(a)(3). Three commenters supported the requirement for the legislature or governor to designate waters with particular environmental or ecological significance. Three commenters said that other state or local officials should be able to designate waters with environmental or ecological significance that should be subject to this general condition.
We believe that outstanding national resource waters should be subject to the provisions of General Condition 25, because these waters are typically high value waters. We maintain our position that outstanding national resource waters must be officially designated by the state as having particular environmental or ecological significance. To be subject to General Condition 25, those outstanding national resource waters must be identified and approved by the district engineer after public notice and opportunity for comment. We do not agree that state or local officials should be able to designate additional waters that will be subject to General Condition 25, without the district engineer providing an opportunity for public notice and comment.
Three commenters supported allowing district engineers to include additional waters after public notice and opportunity for comment. Several commenters opposed this mechanism, because it would provide no additional protection since these waters are already protected by state and local governments. Two commenters indicated that waters identified by Federal and state agencies as designated critical resource waters should be subject to a public review process. Two commenters stated that the use of the word "include" in the first sentence of General Condition 25 implies that there are other waters that are considered to be designated critical resource waters and subject to this general condition. A commenter requested clarification as to what constitutes an official designation as having particular environmental or ecological significance. This commenter said that public notice at the district level should be adequate to make this designation.
We have modified General Condition 25 to explicitly state that district engineers can designate additional critical resource waters after notice and opportunity for public comment. This process is similar to the NWP regional conditioning process whereby district engineers would identify high value waters that should be subject to NWP restrictions. Waters having particular environmental or ecological significance should be designated by the governor or legislature, and the district engineer can designate these waters as critical resource waters for the purposes of General Condition 25, after public notice and opportunity for comment. In contrast to the regional conditioning process, the district engineer would approve any additional critical resource waters for the purposes of General Condition 25.
One commenter asked why wetlands adjacent to designated critical resource waters are included in General Condition 25. Several commenters recommended that the Corps replace the word "adjacent" with "contiguous" to clarify the geographic scope of this general condition and make it easier to implement. One commenter stated that adjacent wetlands are not clearly defined for the purposes of this general condition. Another commenter remarked that waters adjacent to designated critical habitat are not subject to the same ESA requirements as designated critical habitat and should not be treated as such.
Wetlands adjacent to designated critical resource waters are included in General Condition 25 because these wetlands can have substantial influences on the quality of these waters. We believe that this is true for all critical resource waters, including designated critical habitat for endangered species. For the purposes of this general condition, the definition term "adjacent" is the same as the definition at 33 CFR 328.3(c).
Several commenters requested that the Corps define what constitutes an "effect" to a designated critical resource water. Two commenters indicated that it is difficult for the public to know which waters are subject to General Condition 25 because that information is not readily available and the list of applicable waters can change frequently. Several commenters suggested that the Corps produce maps of designated critical resource waters and subject those maps to a public comment process.
For the purpose of General Condition 25, the term "directly affecting" refers to activities involving discharges of dredged or fill material into waters of the United States. Prospective permittees should contact the appropriate Corps district to determine if any designated critical resource waters occur in the vicinity of the proposed work. Corps districts can produce maps of designated critical resource waters to aid in the implementation of this general condition, but such maps are not required.
Several commenters said that states can restrict the use of NWPs in certain waterbodies through the Section 401 water quality certification process and that state-designated waters should not be subject to General Condition 25. Another commenter stated that the Corps should not restrict discharges into designated critical resource waters if other Federal or state agencies have not imposed restrictions on those waters.
We believe that the provisions in General Condition 25 are necessary to ensure that the NWPs only authorize activities with minimal adverse effects on the aquatic environment, individually or cumulatively. Other Federal and state agencies may not have the regulatory authority to restrict or prohibit discharges of dredged or fill material into designated critical resource waters. Therefore, it is appropriate for the Corps to impose such restrictions, since such discharges are regulated by the Corps under Section 404 of the Clean Water Act.
One commenter recommended adding NWP 13 to the list of NWPs that are prohibited in this general condition. Another commenter suggested that NWP 8 should be added to the list of NWPs that cannot be used in designated critical resource waters. Many commenters objected to the inclusion of maintenance activities (e.g., NWPs 3 and 31) in General Condition 25 because these activities have minimal adverse effects on the aquatic environment and delaying the authorization of these activities is unsafe and contrary to the public interest. Some commenters suggested removing NWPs 7 and 43 from the list of prohibited activities. Many commenters said that NWPs 12 and 14 should not be restricted in these waters. Some of these commenters stated that submission of a PCN to the district engineer is adequate to ensure that the work results in minimal adverse effects on the aquatic environment. Two commenters said that NWP 25 should not be subject to this general condition. A commenter stated that NWP 35 should be included in the list of NWPs that require notification. This commenter also indicated that it is unnecessary to require a PCN for activities authorized by NWPs 22, 27, 30, and 37.
We do not agree that NWPs 13 or 8 should be added to the list of NWPs in paragraph (a) of General Condition 25. NWP 3 activities can occur in designated critical resource waters, provided those activities result in minimal adverse effects on the aquatic environment. The maintenance of flood control facilities constructed in designated critical resource waters could result in more than minimal adverse effects on the aquatic environment, and should be reviewed through other DA permit processes. We continue to believe that NWPs 7, 12, 14, 35, and 43 should be subject to the restrictions in paragraph (a). We do not agree that the PCN process is a more effective mechanism to review activities in designated critical resource waters. We believe that the activities authorized by NWPs 22, 25, 27, 30, and 37, should be reviewed on a case-by-case basis if they are located in designated critical resource waters or adjacent wetlands.
Many commenters suggested additional waters that should be included in the list of designated critical resource waters. Numerous commenters recommended groundwater recharge areas and sources of drinking water as designated critical resource waters. Other suggested waters include: primary nursery areas and shellfish waters; streams that support cold water fisheries; areas used by migratory birds; waters of the United States in wilderness areas, national parks, and wildlife refuges; areas identified by state natural heritage programs as supporting high concentrations of rare species; vernal pools; stream segments and waterbodies proposed for listing under section 303(d) of the Clean Water Act; waters supporting salmonid fisheries; and wetlands that are rare and difficult to replace, such as peatlands, potholes, vernal marshes, playas, kettles, high altitude wetlands, and mature forested wetlands.
Concerns regarding these waters are more effectively addressed through other processes, such as regional conditioning of the NWPs or case-specific review of PCNs. Division engineers can regionally condition the NWPs to prohibit or limit their use in such high value waters. District engineers will exercise discretionary authority and require individual permits if activities proposed in designated critical resource waters will result in more than minimal adverse effects on the aquatic environment. Proposed General Condition 25 is adopted with the modifications discussed above.
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