V. Comments and Responses on Nationwide Permit Definitions
We received many comments concerning the proposed definitions for the NWPs. Comments regarding specific definitions are discussed below. In this section, we also address requests for definitions of additional terms used in the NWP program. One commenter said that certain terms defined in the "Definitions" section do not appear in the text of NWPs and that they should be removed. This commenter cited the definitions of "aquatic bench" and "ephemeral streams." Another commenter objected to the differential treatment of perennial, intermittent, and ephemeral streams, stating that each stream type has important functions and values and that the proposed NWPs imply that ephemeral streams are less valuable.
We have deleted the definition of the term "aquatic bench," since it is not used in the new NWPs. We believe that it is necessary to retain the definition of the term "ephemeral stream" because it is important to recognize the differences between perennial, intermittent, and ephemeral streams when determining whether a particular project will have more than minimal adverse effects on the aquatic environment. For example, NWP 43 does not authorize the construction of new stormwater management facilities in perennial streams. Division engineers can also regionally condition these NWPs to address regional concerns for different stream types.
Best Management Practices. One commenter recommended adding "and wetlands" after the phrase "surface water quality."
We do not agree that this change is necessary, because wetlands are surface waters. This definition is adopted as proposed.
Compensatory Mitigation. One commenter stated that the requirement in the new NWPs for vegetated buffers adjacent to open waters is inconsistent with the proposed definition of compensatory mitigation, because that definition does not recognize vegetated buffers as a form of compensatory mitigation. Another commenter recommended revising the definition to recognize the use of upland areas to provide out-of-kind compensatory mitigation. One commenter said that the definition of this term should include references to mitigation banks and in lieu fee programs. One commenter said that the word "unavoidable" in the definition is confusing and should be removed.
The establishment and maintenance of vegetated buffers next to open waters, including streams, is not inconsistent with the proposed definition of this term. An integral component of stream restoration projects is the reestablishment of the riparian zone, which may involve planting trees and shrubs next to the stream to restore aquatic habitat. It is not necessary to include mitigation banks and in lieu fee programs in the definition of this term because these are specific forms of compensatory mitigation. The word "unavoidable" is an integral part of this definition because the NWPs require on-site avoidance and minimization of losses of waters of the United States, to the maximum extent practicable (see General Condition 19). This definition is adopted as proposed.
Creation: We did not receive any comments concerning the proposed definition. This definition is adopted as proposed.
Drainage Ditch. Several commenters noted that the term "ordinary high water line," which is used in the proposed definition of this term, is not defined in Corps regulations. These commenters asked if we intended to refer to the "ordinary high water mark." Several commenters stated that channelized streams should not be included in this definition. One commenter recommended that this definition differentiate between channelized streams and drainage ditches by stating that channelized streams convey water from high water tables. Another commenter objected to a statement in the preamble discussion related to this definition (64 FR 39351) that the maintenance of drainage ditches which are constructed by channelizing streams is exempt from Section 404 permit requirements as long as the maintenance activity does not exceed the original ditch design and configuration. Two commenters requested that the Corps add structural drainage ditches and channels to the definition of this term.
One commenter said that a clear definition of the term "upland drainage ditch" is needed. Another commenter objected to the second sentence of the proposed definition, stating that drainage ditches are jurisdictional only when they are constructed in waters of the United States. This commenter indicated that the entire drainage ditch should become jurisdictional if any part of that drainage ditch is constructed in waters of the United States.
We have withdrawn the proposed definition of this term from the "Definitions" section of the NWPs, because of the complexity of the jurisdictional issues related to drainage ditches.
Enhancement: We did not receive any comments concerning the proposed definition. This definition is adopted as proposed.
Ephemeral Stream. Several commenters recommended modifying the proposed definition of this term to state that ephemeral streams are not waters of the United States as defined at 33 CFR 328.3(a)(3). These commenters also noted that in the July 1, 1998, Federal Register notice (63 FR 36042), the Corps defined the term stream bed as including only perennial and intermittent streams.
We do not agree that it is necessary to explicitly state in the definition of this term that ephemeral streams are not waters of the United States because such a statement would be inaccurate. An ephemeral stream that meets the criteria at 33 CFR part 328 is a water of the United States. We acknowledge that we made an error on page 36042 of the July 1, 1998, Federal Register notice. Our intent was to clarify that the PCN thresholds for stream bed impacts for the proposed NWPs apply only to perennial and intermittent stream beds, not ephemeral stream beds. The term "stream bed," as used for the NWPs, applies to perennial, intermittent, and ephemeral stream beds. This definition is adopted as proposed.
Farm tract: We did not receive any comments concerning the proposed definition. This definition is adopted as proposed.
Independent utility: We did not receive any comments concerning the proposed definition. This definition is adopted as proposed.
Intermittent stream: We did not receive any comments concerning the proposed definition. This definition is adopted as proposed.
Loss of Waters of the United States. During our review of the comments received in response to the July 21, 1999, Federal Register notice, we found an error in the proposed definition of the term "loss of waters of the United States." In the fourth sentence of the draft definition, we stated that the loss of stream bed includes the linear feet of perennial or intermittent stream bed that is filled or excavated. This statement is inaccurate because ephemeral stream bed that is filled or excavated can also be considered a loss of waters of the United States. However, the 300 linear foot limit for stream beds filled or excavated does not apply to ephemeral streams. We have modified this sentence to define the loss of stream bed as the linear feet of stream bed that is filled or excavated.
One commenter requested clarification whether the definition of this term refers only to permanent losses. This commenter also said that the proposed definition implies that all permanent losses of waters of the United States, no matter how small, are considered. Several commenters stated that only permanent losses of waters of the United States should be regulated by the Corps. Another commenter suggested that temporary losses should be included in the measurement of loss of waters of the United States.
All permanent losses of waters of the United States are considered when calculating the amount of loss of waters of the United States to determine whether a particular activity complies with the acreage or linear limits of an NWP. All discharges of dredged or fill material into waters of the United States resulting in permanent or temporary losses of waters of the United States are regulated by the Corps, unless they are specifically exempt under Section 404(f) of the Clean Water Act. We do not agree that temporary losses of waters of the United States should be included in the threshold measurement to determine whether a activity may qualify for an NWP, since these areas revert back to waters of the United States once they are restored.
One commenter asked if the term "loss of waters of the United States" includes the removal of silt that has accumulated in a channel. Another commenter said that the proposed definition is so broad that it would include any effect, not just losses. This commenter said that it is not clear whether maintenance dredging of flood control channels to restore design grades is considered a loss of waters of the United States. One commenter objected to the third sentence of the proposed definition, stating that this sentence is inconsistent with Corps practice of considering compensatory mitigation when determining whether the adverse effects on the aquatic environment are minimal. A commenter suggested that the Corps consider the entire single and complete project to determine the amount of loss of waters of the United States and whether the adverse effects are minimal.
The term "loss of waters of the United States" does not include maintenance dredging activities that remove accumulated sediments, provided the dredged material is deposited in upland disposal sites. An exception occurs where the channel has accumulated so much sediment that wetlands have developed in the channel and the removal of those wetlands are necessary to reconstruct the channel. In that situation, we would consider the activity to result in a loss of waters of the United States. However, in most situations mitigation is not required for the cyclical removal of vegetation during maintenance activities.
The third sentence of this definition is not inconsistent with our policy of using compensatory mitigation to determine whether the net adverse effects of a particular activity on the aquatic environment are minimal. This part of the definition merely states that compensatory mitigation cannot be used to offset a loss of waters of the United States to meet the acreage limit of an NWP. For example, a project proponent cannot create 1/2 acre of wetlands to change a 3/4 acre loss of wetlands to a 1/4 acre loss of wetlands (see paragraph (b) of General Condition 19). However, the district engineer will consider compensatory mitigation when determining whether the net adverse effects on the aquatic environment are minimal.
One commenter said that this definition should also include long-term, but temporary, impacts to aquatic resource functions and values. Another commenter stated that discharges of dredged or fill material into waters of the United States to construct compensatory mitigation projects should be included in the measurement of loss of waters of the United States because these projects do not always succeed.
District engineers will determine, on a case-by-case basis whether an activity results in permanent or temporary losses of waters of the United States. We do not agree that impacts due to the construction of compensatory mitigation projects should be included in the measurement of loss of waters of the United States because these activities offset losses of waters of the United States. This definition is adopted with the modification discussed above.
Non-tidal wetland. One commenter said that the third sentence of the proposed definition is not accurate because it changes the definition of high tide line. This commenter believes that the maximum height of the tide is not the spring high tide.
The spring high tide line is the normal high tide line that occurs during the tidal cycle. Water levels higher than spring high tides result from storm surges, which are not part of the normal tidal cycle. This definition is retained as proposed.
Open Water. Two commenters stated that the proposed definition of this term is confusing and asked whether all waters of the United States that have ordinary high water marks are open waters. These commenters also inquired whether this term applies to other areas, such as ephemeral washes, arroyos, and vernal pools, that are not inundated for sufficient amounts of time to develop OHWMs and may not be waters of the United States. Two commenters said that the definition of this term should specifically exclude ephemeral washes. One commenter requested that the Corps clarify whether or not all waters of the United States have an OHWM.
To clarify this definition, we have modified the second sentence to state that open waters either have little or no emergent aquatic vegetation. Vegetated shallows are considered to be open waters. Waters of the United States with substantial amounts of emergent aquatic vegetation are wetlands, which may or may not have an OHWM. An ephemeral wash, arroyo, or vernal pool that does not have an OHWM is not a water of the United States, unless that area has wetlands that meet the criteria in 33 CFR part 328. We have added a sentence to the definition which states that ephemeral waters are not considered open waters, for the purposes of the NWPs. The definition of this term is adopted with the modifications discussed above.
Perennial stream. One commenter recommended that the Corps modify the proposed definition to state that the water table "discharges" into the stream for most of the year.
We do not agree with this comment, because using the word "discharge" in this definition is likely to create confusion since certain NWPs authorize discharges of dredged or fill material into waters of the United States for specific activities. The definition is adopted as proposed.
Permanent above-grade fill. Several commenters requested a more explicit definition of the word "permanent" as used in the context of this term. One commenter asked for clarification of what is considered "above-grade" for the purposes of this definition. One commenter said that any discharge of dredged or fill material into waters of the United States should be considered an above-grade fill.
District engineers will determine, on a case-by-case basis, what constitutes a permanent, above-grade fill for the purposes of this definition and General Condition 26. Not all discharges of dredged or fill material into waters of the United States result in permanent, above-grade fills. For example, during the installation of an underground utility line, a wetland could be excavated and backfilled with no permanent change in grade. We believe the definition is adequately clear.
One commenter expressed concern that the use of the word "substantial" in the definition of this term would prohibit stockpiling in 100-year floodplains during sand and gravel mining operations. Another commenter requested that the last sentence of this definition specifically state which NWPs are excluded from this definition, and whether NWP 12 is one of the excluded NWPs.
Temporary stockpiles of materials during mining operations would not be considered permanent above-grade fills for the purposes of this definition and General Condition 26. The exclusion in the last sentence of this definition applies to all structural discharges authorized by NWPs, except for structural discharges that are authorized by the NWPs listed in General Condition 26 (i.e., NWPs 12, 14, 29, 39, 40, 42, 43, and 44). This definition is adopted as proposed.
Playa. Many commenters objected to the proposed definition of this term, stating that this type of aquatic habitat is found throughout the country. Various commenters suggested additional geographic areas that should be included, such as Oklahoma, Colorado, Kansas, Oregon, Washington, and Idaho. Another commenter objected to the inclusion of the word "small" in the proposed definition because some playas can be large in size. This commenter also objected to including the phrase "emergent hydrophytic vegetation" in the definition because many playas do not support vegetation.
Since we have removed the indexed acreage limit for discharges of dredged or fill material into playas, prairie potholes, and vernal pools from NWP 40, therefore we have removed the proposed definition of a playa.
Prairie pothole. Many commenters objected to the proposed definition of this term, stating that this type of aquatic habitat is found throughout the country.
Since we have removed the indexed acreage limit for discharges of dredged or fill material into playas, prairie potholes, and vernal pools from NWP 40, we have removed the proposed definition of prairie pothole.
Preservation: We did not receive any comments concerning the proposed definition. This definition is adopted as proposed.
Project Area. One commenter objected to the inclusion of open space in the definition of this term, because the commenter believes that it penalizes the permittee for avoiding impacts to waters of the United States. Another commenter said that the exclusion of public roads from the definition of "project area" is unnecessary because the public roads would not have been built unless the subdivision was constructed.
Since we have replaced the indexed acreage limit of NWP 39 with a simple 1/2 acre limit, we have deleted the proposed definition of project area from this section.
Restoration. One commenter recommended deleting the phrase "or exist in a substantially degraded state" from the definition of this term, because it overlaps with the definition of the term "enhancement."
The definition of this term was taken from the "Federal Guidance for the Establishment, Use and Operation of Mitigation Banks" that was published in the November 28, 1995, Federal Register (60 FR 58605). Therefore, we cannot make the recommended change because this guidance is still in effect. The definition is adopted as proposed.
Riffle and Pool Complex. One commenter suggested that this term apply only to perennial streams and not to intermittent or ephemeral streams. This commenter also recommended inserting the word "moderately" before the word "steep" in the second sentence of this definition because stream beds with steep gradients seldom have riffle and pool complexes.
The definition of this term was taken from 40 CFR 230.45. Therefore, we will not modify the definition of this term for the purposes of the NWPs. District engineers will use their judgement to identify riffle and pool complexes at project sites and to distinguish between riffle and pool complexes (which are found in areas with moderate grades) and step-pool complexes (which are found in areas with steep grades, where the stream bed material consists mostly of boulders and large rocks). The definition is adopted as proposed.
Single and Complete Project. One commenter said that the criteria for linear single and complete projects should be the same as for other activities.
We do not agree with this comment. The definition of single and complete linear projects is consistent with the current NWP regulations at 33 CFR 330.2(i). This definition is adopted as proposed.
Stormwater management. Several commenters objected to the proposed definition, stating that it does not specifically include facilities that reduce downstream flooding. These commenters said that the definition should include flood control facilities so that they can be authorized by NWP 43.
The proposed definition does consider flooding and the definition of its related term, "stormwater management facilities," addresses flooding issues by discussing runoff in the definition. NWP 43 can be used to authorize certain types of flood control facilities, if they are constructed to control runoff and reduce flooding impacts. This definition is adopted as proposed.
Stormwater management facilities. Two commenters said that this definition should distinguish between facilities that are designed to protect water quality and facilities that are designed for flood control purposes.
We disagree with these commenters because stormwater management facilities usually perform both functions by slowing runoff during storms and trapping sediments and chemical compounds. This definition is adopted as proposed.
Stream bed: We did not receive any comments concerning the proposed definition. This definition is adopted as proposed.
Stream channelization. One commenter requested that the Corps modify the definition of this term to more specifically identify what constitutes stream channelization. Another commenter said that the definition should contain a statement that excavation activities are not regulated by the Corps. Two commenters stated that this definition should include definitions for the terms "structures" and "fills" so that the regulated public will know when the maintenance of these structures and fills is eligible for NWP 3 or the maintenance exemption in section 404(f) of the Clean Water Act.
The proposed definition already provides sufficient examples of activities that may result in stream channelization. District engineers will determine on a case-by-case basis whether a particular activity involves stream channelization. We discuss the regulation of excavation activities in waters of the United States in a previous section of this Federal Register notice and do not believe it is necessary to address that issue in this definition. We do not agree that it is necessary to provide definitions of the terms "structure" and "fill" in the definition of this term. This definition is adopted as proposed.
Tidal Wetland. One commenter stated that the term "spring high tide" should be replaced with the phrase "mean high tide" to make the definition consistent with the provisions of section 10 of the Rivers and Harbors Act.
Although the shoreward limit of jurisdiction for section 10 of the Rivers and Harbors Act is mean (average) high water (see 33 CFR 329.12(a)(2)), spring high tides are waters of the United States under Section 404 of the Clean Water Act (see 33 CFR 328.3(d) and (f)). Tidal wetlands are wetlands that are inundated with tidal waters, including spring high tides. Therefore, this definition is adopted as proposed.
Vegetated Shallows. One commenter suggested inserting the phrase "submerged or floating" before the word "vegetation" in the proposed definition.
The proposed definition was taken from the definition of vegetated shallows published at 40 CFR 230.43 and we do not agree that the recommended change is necessary. This definition is adopted as proposed.
Vernal pool. Many commenters objected to the proposed definition of this term, stating that this type of aquatic habitat is found throughout the country. One commenter stated that not all regions with vernal pools exhibit the "Mediterranean" climates cited in the proposed definition.
Since we have removed the indexed acreage limit for discharges of dredged or fill material into playas, prairie potholes, and vernal pools from NWP 40, we have removed the proposed definition of vernal pools from this section.
Waterbody. One commenter suggested that the word "contiguous" in the second sentence of the proposed definition should be replaced with the word "adjacent."
We disagree with this recommendation, because wetlands that are adjacent to a waterbody are not necessarily part of the waterbody, unless there is a direct, surface water connection (i.e., contiguous) between the wetland and the waterbody. This definition is adopted as proposed.
Additional Definitions. Several commenters recommended that the Corps include definitions of other terms in this section of the NWPs. These comments are addressed below.
One commenter said that the phrase "minimal effects on the aquatic environment" needs to be precisely defined so that users of NWPs will know the extent of adverse effects authorized by the NWPs. Two commenters suggested adding definitions of the terms "isolated waters" and "headwaters." One of these commenters requested a definition of the term "excavation." One commenter said that a definition of the term "upland" as it is used in the context of NWPs 39, 43, and 44 is needed. Two commenters asked for a definition of the phrase "utility line substations" as used in NWP 12. Another commenter requested a definition of the term "practicable" as it is used in General Condition 21. This commenter recommended adopting the definition in the Section 404(b)(1) guidelines.
We cannot provide a national definition of the term "minimal effects on the aquatic environment" because the determination of minimal adverse effects for the NWPs and other general permits must be made on a case-by-case basis, by considering site characteristics, the functions and values of waters of the United States, the quality of those waters, regional differences in aquatic resource functions and values, and other factors. Definitions of the terms "isolated waters" and "headwaters" are found at 33 CFR 330.2(e) and 33 CFR 330.2(d), respectively. We do not agree that it is necessary to provide a definition of the terms "excavation," "uplands," or "utility line substations." The Corps regulatory program uses the definition of the term "practicable" found at 40 CFR 230.3(q).
One commenter requested a definition of the term "non-tidal wetlands adjacent to tidal waters" because the word "adjacent" can be broadly defined. This commenter recommended limiting the phrase "non-tidal wetlands adjacent to tidal water" to wetlands that are found between the mean tide line and the spring high tide line; wetlands landward of the spring high tide line would not be considered adjacent to tidal waters.
As discussed in a previous paragraph in this section, wetlands located between the mean high tide line and the spring high tide line are tidal wetlands, because they are inundated with tidal waters. Non-tidal wetlands that are landward of the spring high tide line and bordering, contiguous, or neighboring to tidal waters are adjacent to tidal waters. District engineers will determine, on a case-by-case basis, whether a particular non-tidal wetland is adjacent to tidal waters.
One commenter recommended including a more detailed definition of the term "lower perennial stream" that is developed from the Cowardin definition and discusses the stream gradient, water velocity, stream substrate, faunal composition, and floodplain development of the lower perennial stream.
Since the term "lower perennial stream" is used only in the context of NWP 44, we have provided a modified version of the Cowardin definition in the text of this NWP. This modified definition describes the stream gradient, stream flow, water velocity, and the stream substrate. We do not agree that it is necessary to address the type of organisms that inhabit lower perennial streams, since the physical description of these stream segments is adequate for the purposes of NWP 44.
One commenter suggested that the Corps include a definition of the term "vegetated buffer" in this section. We concur with this comment and have added a definition of this term to the "Definitions" section of the NWPs.
For the implementation of General Condition 26, we have also added definitions of the terms "flood fringe" and "floodway" to this section. These definitions were taken from 44 CFR 9.4, FEMA's regulations for floodplain management and protection of wetlands.
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