27. Fills Within 100-year Floodplains: We proposed, in the July 21, 1999, Federal Register notice, to add a new general condition to the NWPs that would limit the use of certain NWPs in waters of the United States within all 100-year floodplains.
We received many comments supporting or opposing proposed General Condition 27. A large number of commenters said that this general condition should include drainage activities in 100-year floodplains. Several commenters recommended expanding the scope of the proposed general condition to include excavation activities in 100-year floodplains. Many commenters stated that the proposed general condition should be expanded to prohibit all fills in 100-year floodplains. Some commenters expressed concern that the proposed general condition does not address increases in flooding caused by stream channelization activities. One commenter supported proposed General Condition 27 because it will provide protection of essential fish habitat and anadromous fish species.
Many commenters opposed proposed General Condition 27, stating that it would provide few benefits and that it will increase delays and costs for the regulated public. A number of commenters contend that the requirements of the proposed general condition are outside of the scope of the Corps regulatory authority. Many commenters stated that the requirements of proposed General Condition 27 imply that the Corps is expanding its regulatory authority to the entire 100-year floodplain. Several commenters objected to the provisions of this general condition because it duplicates the requirements of other government agencies, especially state and local flood protection regulations and ordinances, as well as the National Flood Insurance Program (NFIP) of the Federal Emergency Management Agency (FEMA). One commenter said that General Condition 27 is contrary to the Administration's initiatives that encourage reuse of brownfields, because most brownfields are located within 100-year floodplains in urban areas.
As a result of our review of the comments received in response to the July 21, 1999, Federal Register notice, we have modified proposed General Condition 27 and designated it as General Condition 26, Fills Within 100-year Floodplains. The revised general condition prohibits the use of NWPs 29, 39, 40, 42, 43, and 44 to authorize discharges of dredged or fill material into waters of the United States that result in permanent, above-grade fills within the FEMA-mapped 100-year floodplain of streams below the headwaters. NWPs 12 and 14 can be used to authorize discharges of dredged or fill material resulting in permanent, above-grade fills within the 100-year floodplain of streams below headwaters, provided the permittee notifies the district engineer in accordance with General Condition 13 and the activity complies with FEMA or FEMA-approved local floodplain construction requirements.
In flood fringes of FEMA-mapped 100-year floodplains located within headwater streams, NWPs 12, 14, 29, 39, 40, 42, 43, and 44 can be used to authorize permanent, above grade fills in waters of the United States, provided the prospective permittee notifies the district engineer in accordance with General Condition 13 and provides documentation demonstrating that the proposed work complies with FEMA or FEMA-approved local floodplain construction requirements. In FEMA-designated floodways of 100-year floodplains located within headwater streams, NWPs 29, 39, 40, 42, 43, and 44 cannot be used to authorize permanent, above-grade fills in waters of the United States. However, NWPs 12 and 14 can be used to authorize permanent, above-grade fills in waters of the United States within floodways of FEMA-designated 100-year floodplains located within headwater streams, provided the prospective permittee notifies the district engineer in accordance with General Condition 13 and provides documentation demonstrating that the activity complies with FEMA or FEMA-approved local floodplain construction requirements. We believe that these changes, combined with the 1/2 acre maximum acreage limit and 1/10 acre PCN threshold, will ensure protection of the functions and values of floodplains. Definitions of the terms "flood fringe" and "floodway" are found at 44 CFR 9.4.
We do not agree that this general condition should be extended to drainage and excavation activities within 100-year floodplains, since these activities do not have substantial adverse effects on the flood-holding capacity of 100-year floodplains. Stream channelization activities authorized by NWPs are subject to General Condition 21, which prohibits substantial changes to surface water flow patterns, including downstream flooding. Stream channelization projects are constructed to improve conveyance of water, which may decrease local flooding.
It is important to note that the requirements of this general condition are not a surrogate for the requisite and separate determination by the Corps of minimal adverse effects on the aquatic environment that is required for all NWPs. District engineers will exercise discretionary authority if proposed discharges of dredged or fill material into waters of the United States within 100-year floodplains will result in more than minimal adverse effects (after consideration of mitigation measures) on the aquatic environment.
We do not believe that the modified version of this general condition will unreasonably increase costs for the regulated public. NWP 26 authorized only discharges of dredged or fill material in headwaters and isolated waters and the modified condition allows the use of NWPs in the flood fringe of the headwaters. The Corps study of the economic and workload implications of the proposed NWPs indicates that the revised approach will cost the regulated public roughly one-half the amount the proposal in the July 21, 1999, Federal Register would cost. Moreover, we believe that the modifications we have made will actually enhance protection of the aquatic environment. To participate in the NFIP, the permittee must comply with FEMA or FEMA-approved local floodplain construction requirements, which will not impose additional costs. The requirements of this general condition are not an attempt to, and do not, expand the Corps regulatory jurisdiction to areas outside of waters of the United States.
Two commenters stated that the current NWP program complies with Executive Order (E.O.) 11988, Floodplain Management. One of these commenters said that requiring individual permits for the activities prohibited by the proposed general condition is not considered a practicable alternative in the context of E.O. 11988, because it is impractical to require individual permits for all activities in 100-year floodplains.
We concur that the NWP program fully complies with E.O. 11988, including the "Floodplain Management Guidelines for Implementing E.O. 11988" issued by the U.S. Water Resources Council and "Further Advice on Executive Order 11988 Floodplain Management" issued by the Interagency Task Force on Floodplain Management. "Further Advice on Executive Order 11988 Floodplain Management" states that class review of repetitive actions proposed in 100-year floodplains can be conducted in full compliance with E.O. 11988. The NWPs clearly fall within the category of class review of repetitive actions.
Several commenters indicated that requiring individual permits for activities in 100-year floodplains will not provide any benefits because individual permits will be issued with little or no change from the proposed work. These commenters said that it is likely that the Corps will rely on the NFIP standards when assessing impacts on 100-year floodplains. Two commenters said that the requirements of proposed General Condition 27 will remove incentives for project proponents to design their activities to have minimal adverse effects to qualify for NWP authorization. These commenters believe that project proponents will design larger activities with greater environmental impacts when required to request individual permits. One commenter said that the NWPs should authorize fills that result in the loss of less than 2 acres of waters of the United States in 100-year floodplains.
Several commenters stated that the requirements of proposed General Condition 27 should not be more restrictive than FEMA regulations. Numerous commenters indicated that the proposed general condition is contrary to FEMA regulations, which allow fills in the flood fringe of 100-year floodplains. One commenter said that the proposed general condition should be modified to allow the NWPs to authorize activities that comply with NFIP construction standards. One commenter said that proposed General Condition 27 should not apply in areas with FEMA-certified floodplain management programs in place, where the activity has been approved by the local floodplain management agency.
We agree with these comments and have modified this general condition so that the NWPs can be used to authorize activities within flood fringes of 100-year floodplains within headwater streams, provided those activities comply with FEMA or FEMA-approved local floodplain construction requirements and result in minimal adverse effects on the aquatic environment. We do not agree that there should be a 2 acre limit for discharges of dredged or fill material into waters of the United States within 100-year floodplains. The 1/2 acre limit for most of the new NWPs will allow the NWP program to continue to provide a streamlined authorization process for activities with minimal adverse effects on the aquatic environment.
A large number of commenters stated that proposed General Condition 27 will impose additional requirements on local floodplain authorities that will increase their workload. For example, the proposed general condition required local floodplain authorities to determine the extent of 100-year floodplains, determine whether a proposed activity is outside of the 100-year floodplain, and provide documentation that the proposed work will not decrease the flood-holding capacity of the 100-year floodplain.
We agree with these concerns, but believe that the revised general condition will not impose such additional workload requirements on local floodplain authorities.
Many commenters contend that the prohibitions in proposed General Condition 27 are not necessary because the NWPs authorize only activities with minimal adverse effects on the aquatic environment, including floodplains. Several commenters noted that the terms of proposed General Condition 27 impose a "no effect" standard on the NWPs instead of a "minimal adverse effect" standard.
We agree with these comments. The revised general condition does not prohibit the use of NWPs 29, 39, 40, 42, 43, and 44 to authorize discharges of dredged or fill material into waters of the United States within flood fringes of 100-year floodplains within headwater streams, provided the proposed work complies with FEMA or FEMA-approved local floodplain construction requirements and results in minimal adverse effects on the aquatic environment. NWPs 12 and 14 can be used to authorize activities in all non-tidal 100-year floodplains, provided those activities comply with FEMA or FEMA-approved local floodplain construction requirements and result in minimal adverse effects on the aquatic environment.
Numerous commenters objected to this general condition because it requires PCNs for all activities. Two commenters requested clarification whether notification to the district engineer is required if the FEMA map or local floodplain map shows that the project site is outside of the 100-year floodplain. Three commenters asked if the PCN requirement in paragraph (a) of the proposed general condition is for all NWPs or only NWPs 21, 29, 39, 40, 42, 43, and 44.
The revised general condition does not require notification for all activities authorized by NWPs 12, 14, 29, 39, 40, 42, 43, and 44. Notification is required only if the proposed activity involves discharges of dredged or fill material into waters of the United States within 100-year floodplains that are mapped through Flood Insurance Rate Maps (FIRMs) published by FEMA or FEMA-approved local floodplain maps.
Numerous commenters said that compensatory mitigation can be used to offset losses of floodplain functions and values, including flood storage, and that the prohibitions in proposed General Condition 27 are unnecessary. Several commenters remarked that floodplain issues are more appropriately addressed through regional conditions. Other commenters suggested that PCNs and discretionary authority should be used instead of prohibitions. Two commenters recommended that the Corps include local floodplain agencies in the agency coordination process to address floodplain concerns.
Compensatory mitigation can be used to ensure that the proposed work complies with FEMA or FEMA-approved local floodplain construction requirements. Since flood hazards are a national concern, we do not agree that this issue should be addressed solely by regional conditions. Certain NWP activities within 100-year floodplains will be reviewed through the PCN process to ensure that those activities comply with FEMA or FEMA-approved local floodplain construction requirements and result in minimal adverse effects on the aquatic environment. In addition, we believe that the waters of the United States within the mapped floodway have inherently higher wetland functions and values, which should be afforded additional protections.
Several commenters said that proposed General Condition 27 is unnecessary because the proposed modification of General Condition 21 adequately addresses changes to surface water flows, including flooding. Three commenters requested clarification whether runoff from buildings constructed in uplands within 100-year floodplains requires a Section 404 permit. Three commenters asked whether permanent, above-grade fills in uplands within 100-year floodplains are subject to proposed General Condition 27.
We do not agree that General Condition 21 adequately addresses all potential adverse effects to 100-year floodplains. Stormwater runoff from buildings constructed in uplands within 100-year floodplains does not require a Section 404 permit. During reviews of PCNs, district engineers will consider the adverse effects of the proposed activity on the ecological as well as flooding functions and values of 100-year floodplains. Depending on the Corps scope of analysis for the proposed work, district engineers will generally limit their reviews to activities in waters of the United States within 100-year floodplains.
Many commenters addressed problems associated with identifying and mapping 100-year floodplains. One commenter supported the requirement for using up-to-date FEMA maps. Several commenters advocated expanding proposed General Condition 27 to 100-year floodplains not mapped by FEMA on its FIRMs. A large number of commenters indicated that FEMA maps are not accurate and should not be relied upon to identify the extent of 100-year floodplains. Two commenters said that the Corps should map the floodplains. One commenter noted that many FEMA maps do not reflect changes in land use that have occurred since the last FIRM was issued, which makes these maps unreliable.
To effectively implement the requirements of this general condition, and to be consistent with other Federal programs, 100-year floodplains will be identified through the latest FIRMs published by FEMA or FEMA-approved local floodplain maps. If there are no FIRMs or FEMA-approved local floodplain maps available for the area where the proposed work is located, then the requirements of this general condition do not apply. In such cases, the Corps will still consider the impacts of proposed projects through the PCN review process.
Many commenters stated that in areas where there are no FEMA maps or those maps are out of date, local floodplain authorities may be unwilling to certify the extent of the 100-year floodplain without extensive analyses. These commenters said that landowners may have to go through a lengthy and expensive map revision process before the local floodplain authority will provide the documentation required by proposed General Condition 27. Two commenters remarked that the requirement to have a licensed professional engineer certify whether or not the activity is in the 100-year floodplain is too restrictive. These commenters said that this requirement should be modified to allow qualified hydrologists to identify 100-year floodplains in areas not mapped by FIRMs. Several commenters suggested that proposed General Condition 27 should contain a statement requiring the consideration of man-made flood control structures when mapping 100-year floodplains.
The revised general condition does not require local floodplain authorities to certify the extent of 100-year floodplains. In addition, the prospective permittee is not required to have a licensed professional engineer certify whether or not the proposed work is within a 100-year floodplain.
One commenter objected to using FEMA maps, stating that the scale of these maps makes it difficult to determine if a particular parcel is within a 100-year floodplain. Another commenter objected to using FIRMs because they may contain large areas that are within the 100-year floodplain but are not mapped because of inadequate funding. These unmapped areas would place burdens on local governments or the landowners, who would be required to survey the property and map the 100-year floodplain. One commenter objected to proposed General Condition 27, because it would require project proponents to obtain individual permits if they cannot demonstrate that the proposed work is located outside of 100-year floodplains because there are no FEMA or local floodplain maps available for the project sites.
We believe that FIRMs or FEMA-approved local floodplain maps are adequate for the purposes of this general condition. Utilizing existing FIRMs and FEMA-approved local floodplain maps eliminates the additional burdens on local governments or landowners that existed in the proposed condition. If there are no FIRMs or FEMA-approved local floodplain maps available for the project area, this general condition does not apply.
Several commenters stated that paragraph (b) of proposed General Condition 27 is an illegal delegation of the Corps regulatory authority because it allows FEMA or local floodplain authorities to prohibit the use of NWPs 12 and 14 in 100-year floodplains. Two commenters disapprove of the requirement for prospective permittees to provide, with the notification, a statement from FEMA or the local flood control agency that the proposed work will not increase flooding. One commenter objected to the provisions of paragraph (b) because FEMA regulations require engineering analyses only for work in regulatory floodways. Two commenters recommended modifying paragraph (b) to allow professional engineers to provide documentation to district engineers without submitting it to FEMA or local floodplain authorities for approval.
We have revised this general condition to require the permittee to comply with the appropriate FEMA or FEMA-approved local floodplain construction requirements. These requirements address impacts to base flood elevations and 100-year floodplains to minimize flood damages. The revised general condition does not require engineering analyses on a case-by-case basis.
Two commenters said that the requirements of the proposed general condition will require local floodplain authorities to develop new regulations to address the documentation necessary to comply with paragraph (b), since these are new requirements that are not currently used by local floodplain agencies. These commenters indicated that it would be more appropriate for FEMA to change its regulations to address these documentation requirements. Many commenters stated that FEMA and local floodplain authorities are not equipped to handle the reviews necessary for the rebuttable presumption in paragraph (b) of proposed General Condition 27 because it contains different standards than they currently use. Several commenters disapprove of this general condition because it provides no mechanism to resolve disputes that may occur between FEMA and local floodplain agencies.
We have revised this general condition to require the permittee to comply with FEMA or FEMA-approved local floodplain construction requirements. If those construction requirements change, the permittee would have to comply with the new construction requirements.
Several commenters indicated that the criteria in paragraph (b) of proposed General Condition 27 (i.e., no more than minimal alteration of the hydrology, flow regime, or volume of waters associated with the floodplain) are not well-defined in current FEMA regulations or the guidance for implementing local floodplain regulations. These commenters said that most states do not use these criteria when assessing impacts to 100-year floodplains. Two commenters suggested that the Corps consult with state floodplain regulatory agencies and Federal transportation agencies to develop language that makes this condition practical to implement. Another commenter recommended that other factors, such as the width of the drainage course, slope, roughness coefficients, and location of above-grade fills within the 100-year floodplain should be considered.
We have removed these criteria from this general condition. Instead, we will rely on FEMA or FEMA-approved local floodplain construction requirements to ensure that the authorized work does not result in more than minimal adverse effects to the flood-holding capacity of 100-year floodplains.
One commenter identified inconsistencies between the second and fourth sentences of paragraph (b). The second sentence states that the " * * * project and associated mitigation, will not decrease flood-holding capacity and no more than minimally alter the hydrology, flow regime, or volume of waters associated with the floodplain." The fourth sentence states that the project "* * * will not result in increased flooding or more than minimally alter floodplain hydrology or flow regimes." Since the documentation requirements of these sentences differ, the commenter was unsure as to what constitutes the criteria that will be used to determine compliance with the proposed general condition.
The revised general condition does not contain these inconsistencies.
Two commenters stated that the proposed general condition should apply to NWP activities in smaller tributaries, in addition to the main river. One commenter said that tributaries to streams should be considered as separate watersheds and eligible for the exception in paragraph (c) of proposed General Condition 27. This commenter requested criteria that will be used to determine whether a tributary is separate from the floodplain of the main channel. Another commenter contends that paragraph (c) of the proposed general condition is too confusing and requested clarification explaining how district engineers and prospective permittees would determine if a particular site is located in the portion of the watershed that drains less than one square mile.
This general condition applies to activities authorized by NWPs 12, 14, 29, 39, 40, 42, 43, and 44, where 100-year floodplains are delineated on either FIRMs or FEMA-approved floodplain maps. If no 100-year floodplain map has been produced for a particular tributary, then the provisions of this general condition do not apply. The revised general condition does not contain a provision similar to paragraph (c) of the proposed General Condition 27.
Several commenters suggested that the rebuttable presumption in paragraph (b) should be utilized for NWPs 21, 29, 39, 40, 42, 43, and 44, instead of prohibiting these activities in 100-year floodplains. One commenter recommended expanding proposed General Condition 27 to NWPs 7, 8, 16, and 17. Several commenters said that proposed General Condition 27 should not apply to the construction, replacement, and maintenance of water supply facilities, fish production facilities, flood control facilities, and hydraulic control and drainage facilities. Three commenters indicated that the proposed general condition should not apply to NWP 27 activities.
We have revised the proposed general condition to require, for NWP 29, 39, 40, 42, 43, and 44 activities in flood fringes of the 100-year floodplains within headwater streams, that the permittee notify the district engineer in accordance with General Condition 13 and provide documentation demonstrating that the proposed work complies with FEMA or FEMA-approved local floodplain construction regulations. We have withdrawn NWP 21 from the general condition. We do not agree that this general condition should apply to NWPs 7, 8, and 16 because the activities authorized by these NWPs have little or no adverse effects on the flood-holding capacity of 100-year floodplains. Hydropower projects authorized by NWP 17 would be required to comply with the appropriate floodplain construction requirements. This general condition does not apply to water supply facilities, fish production facilities, flood control facilities, and hydraulic control and drainage facilities, unless those activities are authorized by the NWPs listed in the general condition. NWP 27 is not subject to this general condition.
Many commenters said that proposed General Condition 27 should not apply to NWP 12 activities. One commenter suggested a 1/3 acre limit for utility line activities in 100-year floodplains. Another commenter stated that the installation of above-ground utility line valves within 100-year floodplains should not be subject to the hydraulic modeling requirements of paragraph (b) because these activities have minor adverse effects on flood-holding capacity. Several commenters said that the requirements of paragraph (b) should not apply to utility lines that are installed underground. Three commenters said that permanent above-grade fills within 100-year floodplains for utility line activities should not be authorized by NWP 12.
We do not agree that NWP 12 activities should be excluded from this general condition. Utility line activities can adversely affect the flood-holding capacity of the 100-year floodplain. NWP 12 activities are required to comply with the appropriate FEMA or FEMA-approved local floodplain construction requirements.
Numerous commenters stated that proposed General Condition 27 should not apply to NWP 14 activities. One commenter said that the proposed general condition should apply only to transportation crossings that are constructed parallel to streams. A commenter suggested a 1/3 acre limit for NWP 14 activities in 100-year floodplains. One commenter said that restricting NWP 14 activities in 100-year floodplains could adversely affect public safety.
NWP 14 activities can adversely affect the flood-holding capacity of 100-year floodplains, as well as surface water flow patterns during flood events. The revised general condition does not prohibit NWP 14 activities in 100-year floodplains. NWP 14 activities must comply with the appropriate FEMA or FEMA-approved local floodplain construction requirements.
Many commenters said that proposed General Condition 27 should not apply to activities authorized by NWP 21 because all coal mining is regulated by the Office of Surface Mining (OSM) and delegated state agencies. Some of these commenters indicated that state mining programs have extensive performance standards for hydrological balance, which address similar issues as proposed General Condition 27. Numerous commenters stated that OSM-approved state programs have requirements to restore mined areas to approximately the original contours and that prohibiting the use of NWP 21 in 100-year floodplains will place burdens on the mining industry without providing any additional benefits.
We concur with these commenters and have removed NWP 21 from the revised general condition.
One commenter stated that, for activities authorized by paragraph (a) of NWP 40, NRCS would have to determine if the proposed work will result in unacceptable impacts on FEMA-mapped 100-year floodplains. This commenter said that NRCS, as part of its review, addresses impacts on flood storage and flood flows and that prospective permittees should be allowed to use NWP 40 if the work will not result in impacts to 100-year flood events. This commenter also recommended incorporating the requirements of proposed General Condition 27 into the text of NWP 40 so that the regulated public will be aware of these requirements.
For activities authorized by paragraph (a) of NWP 40, NRCS will determine if the proposed work complies with this general condition. We have added paragraph (e) to NWP 40, which refers permittees to General Condition 26.
Many commenters objected to applying the prohibition in paragraph (a) of proposed General Condition 27 to NWP 43 activities. A number of these commenters said that this prohibition is inappropriate since stormwater management facilities must be located in or near 100-year floodplains and their purpose is floodplain management and flood control. Several commenters said that prohibiting NWP 43 activities in 100-year floodplains will put citizens at greater risks and make their property more susceptible to flood damage. One commenter stated that proposed General Condition 27 should not apply to the maintenance of existing flood control projects.
We do not agree that NWP 43 should be excluded from this general condition. NWP 43 activities must comply with FEMA or FEMA-approved local floodplain construction requirements, if the activity is located in flood fringes of 100-year floodplains of headwater streams. Furthermore, many in-stream stormwater management facilities are located above the 1 cfs point on streams. General Condition 26 does not apply above the 1 cfs point, thus these projects will not be affected. The revised general condition does not apply to NWP 31 activities.
Many commenters stated that proposed General Condition 27 should not apply to NWP 44 activities because it would not provide any added benefits. Some of these commenters said that aggregate mining activities often increase flood storage capacity and therefore should not be prohibited by this general condition. Several commenters suggested that NWP 44 activities should be subject to the rebuttable presumption in paragraph (b) of the proposed general condition. One commenter said that the proposed general condition should not apply to aggregate mining activities because sand and gravel deposits are typically located within floodplains and off-site alternatives are usually impractical. This commenter also stated that mined land reclamation will restore surface water flow patterns. A commenter noted that dikes, berms, foundations, and impoundments associated with mining activities can be located so that they will not restrict the flow of floodwaters.
We do not agree that NWP 44 should be excluded from this general condition, because permanent, above-grade fills associated with mining activities can adversely affect the flood-holding capacity of 100-year floodplains. Mining activities that do not result in permanent above-grade fills are not subject to the requirements of this general condition.
The Corps of Engineers is very concerned with the loss of life and property resulting from unwise development in the floodplain. The Corps has recently advocated the strengthening of floodplain policy and the use of non-structural measures to reduce flood damages. We believe that the changes to the NWP program published today will play an important role in reducing damages associated with development in the floodplain. We will monitor carefully the effectiveness of the new floodplain condition to ensure that it has the intended impact on reducing floodplain development. Specifically, three years from the effective date of the new NWPs, we will prepare a report on the use of NWPs in the flood fringe area in the headwaters. This report will include an analysis of the extent, if any, to which NWPs are being used in the floodplain of areas with repeated flood damages.
Proposed General Condition 27 is adopted as General Condition 26, with the modifications discussed above.
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