26. Impaired Waters: In the July 21, 1999, Federal Register notice, we proposed a new general condition that would limit the use of NWPs in waterbodies that are identified as impaired through the Clean Water Act Section 303(d) process. The sources of impairment considered for the proposed general condition were: nutrients, organic enrichment resulting in low dissolved oxygen concentration in the water column, sedimentation and siltation, habitat alteration, suspended solids, flow alteration, turbidity, or the loss of wetlands. The proposed limitation would also apply to wetlands adjacent to the impaired waterbody.
Many commenters supported the proposed General Condition 26 and many commenters opposed this proposed general condition. Numerous commenters said that the NWPs should not authorize activities in impaired waterbodies. A large number of commenters supported the identification of impaired waters through the Clean Water Act Section 303(d) process. One commenter supported the exclusion of NWP 3 from the 1 acre limit imposed by General Condition 26. Two commenters stated that the limitations in this general condition should apply to all wetlands in the watershed or sub-basin, not only to those wetlands that are adjacent to the impaired waters.
Those commenters that expressed opposition to the proposed general condition stated that the limitations in General Condition 26 are unnecessary and would provide no benefits for the environment. Many commenters objected to the proposed general condition because they believe that activities in waters of the United States may have no effect on the actual cause of impairment. Numerous commenters objected to the presumption in proposed General Condition 26 that NWP activities would result in further impairment of waterbodies. Some commenters indicated that certain NWP activities improve water quality. For example, these commenters said that NWPs can authorize activities that stabilize eroding stream banks, improve fish passage, improve the quality of highway runoff, or decrease peak flows. Several commenters believe that the Corps lacks the legal authority to impose this general condition. One commenter said that General Condition 26 is unnecessary because the quality of waters is improving. Several commenters stated that the limitations of General Condition 26 place more value on impaired waters than unimpaired waters. Two commenters indicated that the requirements of this general condition make permittees responsible for mitigating impacts to water quality that they did not cause.
Many commenters recommended using the PCN process and discretionary authority to address impacts to impaired waters, instead of utilizing a prohibition. A number of commenters said that the NWPs should be used to authorize discharges of dredged or fill material into impaired waters and adjacent wetlands if the adverse effects on the aquatic environment are minimal. Two commenters stated that the criterion of "no further impairment" imposes a "no adverse effect" standard on the NWPs, not a "minimal adverse effect" standard. Several commenters said that the limitations imposed by proposed General Condition 26 offset the utility of regional conditions. A number of commenters objected to the 1 acre limit imposed by the proposed general condition. Two commenters said that the 1 acre limit is arbitrary and violates the Administrative Procedures Act because the Corps provided no justification that this limit is necessary. One commenter stated that the acreage limit should be in the text of the NWPs, not the general condition.
A large number of commenters objected to this proposed general condition because it is duplicative of existing programs, such as the Section 401 water quality certification or National Pollutant Discharge Elimination System programs. Two commenters stated that the issuance of a water quality certification by the state or Tribe should be adequate to ensure that the use of the NWP is consistent with water quality standards. Several commenters asserted that states are best suited to determine which actions are necessary to address causes of impairment, allocate pollutant loads, and protect water quality, and that the Corps should defer these matters to the states. Two commenters said that the proposed general condition is redundant with General Condition 9.
Several commenters objected to the use of Clean Water Act Section 303(d) lists to identify impaired waters. A commenter objected to the provisions of proposed General Condition 26 because EPA is currently proposing to revise its regulations for the Total Maximum Daily Load (TMDL) program, upon which the limitations of the proposed general condition are based. This commenter also opposed the proposed general condition because state Section 303(d) lists are constantly changing and not all state lists are available at the same time. One commenter requested clarification whether the TMDL program is the same as the Section 303(d) program for identifying impaired waters. Another commenter asked how the Corps will be able to enforce this general condition when water quality standards may vary from year to year and the Section 303(d) status of individual stream segments may change. Two commenters objected to the proposed general condition because of the subjective criteria used to identified impaired waters on 303(d) lists.
Several commenters objected to making the prospective permittee responsible for demonstrating that the proposed work will not result in further impairment of the waterbody. Many commenters opposed this general condition because it does not explain how the prospective permittee can rebut the presumption and what information is needed to make the rebuttal. Several commenters indicated that, in many cases, it will be impossible to rebut the presumption in General Condition 26 and in other cases much time and money would be required to rebut the presumption. One commenter suggested that the prospective permittee should be required to provide documentation to the district engineer instead of demonstrating that the activity will not result in further impairment of the waterbody.
Several commenters asserted that permittees should be allowed to use compensatory mitigation to ensure that the authorized work will not result in further impairment of the waterbody. Two commenters said that the prohibition against using compensatory mitigation to ensure no further impairment of the waterbody is contrary to General Condition 19 and the last sentence of paragraph (b) of the proposed General Condition. One commenter requested clarification whether the term "excluding mitigation" refers to compensatory mitigation. This commenter also asked if avoidance and minimization could be used as documentation that the activity will not cause further impairment of the waterbody.
Three commenters asked if tributaries of impaired waters are also considered impaired and subject to proposed General Condition 26. Several commenters requested clarification whether wetlands adjacent to an impaired waterbody are considered part of that waterbody and subject to the 1 acre limit. One commenter questioned whether the proposed general condition is applied on a watershed or stream reach basis.
Several commenters objected to the inclusion of adjacent wetlands in proposed General Condition 26 because the definition of adjacency is too vague and those wetlands may not have direct hydrologic connections to the waterbody. Three commenters requested a definition of the term "adjacent" as it applies to this general condition. Two commenters said that the general condition should be limited to the impaired waterbody and wetlands with demonstrable hydrologic connections to the impaired waterbody. One commenter recommended that the Corps replace the term "adjacent" with "contiguous" in this general condition. This commenter also said that, for the purposes of this general condition, adjacent wetlands should not include wetlands downstream of the impaired waterbody. Another commenter said that identifying adjacent wetlands is problematic since impaired waters are identified by segments. This commenter requested guidance on how to identify wetlands that are adjacent to impaired stream segments.
Two commenters said that this general condition should be included in General Condition 25 because impaired waters warrant the same protection as designated critical resource waters. Another commenter said that proposed General Condition 26 should not apply to waters where TMDL water quality management plans have been implemented. Two commenters said that this general condition should not apply to activities that do not result in discharges of the listed pollutant.
One commenter requested clarification whether proposed General Condition 26 applies only to waterbodies that are impaired as a result of the causes listed in the text of the proposed general condition or if other sources of impairment are applicable. Two commenters said that the proposed general condition should apply only to waterbodies that are impaired as a result of the loss of wetlands. Many commenters recommended additional criteria to identify waters that should be subject to this general condition. Suggested criteria include: (1) watersheds that have lost more than 50% of their original wetlands; (2) loss of riparian vegetation that results in greater fluctuations in water temperature; (3) waters identified as impaired through EPA's Index of Watershed Indicators; (4) all waters identified as impaired through the Section 303(d) process; (5) pollutants listed in section 502(6) of the Clean Water Act; (6) waters impaired by hydrological and habitat modification; and (7) waters impaired by pesticides and pathogens.
A number of commenters suggested specific NWPs that should not be subject to proposed General Condition 26. Many commenters said that NWP 3 activities should not be subject to the proposed general condition, because it would result in delays for maintenance activities that have minimal adverse effects on the aquatic environment and are not likely to result in further impairment of these waterbodies. One commenter stated that NWP activities that enhance or restore waters, are necessary for public health and safety, or authorize maintenance activities, should not be subject to the proposed general condition. Various commenters recommended that NWPs 12, 13, 14, 31, and 33 should not be subject to proposed General Condition 26. One commenter said that the proposed general condition should not apply to NWPs 3, 13, 27, 41, 42, and 43 because the activities authorized by these NWPs usually improve water quality. Most NWPs were recommended for exclusion from the proposed general condition.
After considering the comments received in response to the July 21, 1999, Federal Register notice, we determined that General Condition 26 should be withdrawn. We believe that the 1/2 acre limit and the 1/10 acre PCN limit on the new and modified NWPs will ensure that the adverse effects are no more than minimal. We also agree with the commenters who stated that the limitation would yield limited, if any, value added for the aquatic environment. We agree that in many cases mitigated NWPs will actually improve the status of the aquatic environment. Finally, we believe that impacts to impaired waters are more appropriately addressed through the Section 401 water quality certification process.
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