The White House Office on Environmental Policy announced the President's Wetlands Plan on August 24, 1993. The plan sets forth a comprehensive package of improvements to Federal wetlands protection programs. A major goal of the plan is that the programs be fair, flexible, and effective. To achieve this goal, the Corps regulatory program must continue to provide effective protection for wetlands and other aquatic resources, while conveying to the public a clear understanding of regulatory requirements. In its implementation, the regulatory program must be administratively efficient, flexible yet predictable, and avoid unnecessary impacts to private property, the regulated public, and the environment.
There were 37 existing nationwide permits. Thirty-six of the NWPs were published in the November 22, 1991, Federal Register (FR) at 33 CFR part 330, appendix A (56 FR 59110). They became effective on January 21, 1992, and expire on January 21, 1997. One additional NWP, the Single-Family Housing NWP (NWP 29), was proposed in the Federal Register on July 27, 1995, (60 FR 38650) and became effective on September 25, 1995. NWP 29 would expire on September 25, 2000.
In the preamble of the Final Rule at 33 CFR part 330, as published in the Federal Register (56 FR 59110) on November 22, 1991, we indicated that upon expiration of the existing NWPs, we would issue the NWPs separately from the regulations governing their use and rescind 33 CFR part 330, appendix A. The NWPs will now be published using the procedures adopted on November 22, 1991, for issuance, re-issuance, modification, and revocation of NWPs (see 33 CFR 330.5). The NWPs will no longer appear in the Code of Federal Regulations (CFR) but will be published in the Federal Register and announced, with regional conditions, in the public notices issued by Corps district offices, and included on the Internet.
We are reissuing all the existing NWPs; however, several have been modified, as have several NWP conditions as published in the Federal Register (56 FR 59110) on November 22, 1991. Many of the proposed clarifications are a result of the modification of the definition of "discharge of dredged material" at 33 CFR 323.2(d), as published in the Federal Register (58 FR 45008) on August 25, 1993 (i.e., the excavation rule). The definition was revised to include the following language that clarified which excavation activities are regulated: "(iii) Any addition, including any redeposit, of dredged material, including excavated material, into waters of the United States which is incidental to any activity, including mechanized landclearing, ditching, channelization, or other excavation" (See 33 CFR 323.2(d) for the complete definition of "discharge of dredged material").
We are also issuing, in accordance with the President's Wetlands Plan, two new NWPs to authorize those additional regulated activities with minimal adverse effects that resulted from the excavation rule. These new NWPs include: NWP 30, Moist Soil Management for Wildlife; and NWP 31, Maintenance of Existing Flood Control Projects.
The Corps believes that, when the changes to the nationwide permits and their conditions are considered as a whole, the average approval time for projects requiring a Department of the Army permit will not substantially change. However, the individual approval time for some projects will be longer while for others it may be shorter. In addition, we believe that the approval time for a vast majority of activities authorized by nationwide permits will not be affected by these changes.
We have made a final determination that this action does not constitute a major Federal action significantly affecting the quality of the human environment. Environmental documentation and a Finding of No Significant Impact (FONSI) have been prepared for each NWP. This documentation includes an environmental assessment and, where relevant, a section 404(b)(1) Guidelines compliance review. Copies of these documents are available for inspection at the office of the Chief of Engineers, at each Corps district office, and on the Corps Home Page at http://wetland.usace.mil/. Based on these documents the Corps has determined that the proposed NWPs comply with the requirements for issuance under general permit authority.
The 36 nationwide permits issued or reissued effective January 21, 1991 will expire on January 21, 1997; however, all of these permits are being reissued with an effective date of February 11, 1997. There will be a period between January 21, 1997 and February 11, 1997 where these 36 NWPs will not be in effect. Between today and February 11, 1997 the permittee may submit Pre-construction Notifications (PCNs) required by the terms of certain NWPs, in accordance with the NWP "Notification" General Condition. However, the 30 day (45 day for NWP 26) time period in the notification condition will not start until February 11, 1997. Further, Corps districts will review PCNs during this period and will verify projects as soon as possible after February 11, 1997. Nationwide Permit 29, Single Family Housing, is revoked and reissued with new conditions on the same effective date, February 11, 1997, and therefore, there will not be a period of time where NWP 29 is not in effect. Permittees may submit PCNs at any time, however, the 30 day time period for the reissued NWP 29 will not start until February 11, 1997. In addition, two new nationwide permits, NWP 30 and 31, are being issued with the same effective date. All of the issued and reissued nationwide permits, with the exception of NWP 26, will expire in 5 years on February 11, 2002 unless otherwise modified, reissued or revoked. Nationwide Permit 26 will automatically expire 2 years from today's date unless otherwise modified or revoked.
Many of the nationwide permits have been modified in the course of reissuance. The continued adequacy of an authorization under a nationwide permit, following its expiration, is dependent upon whether that permit has been reissued with or without modification. A nationwide permit is considered to have been modified if either the permit scope or limitations have been modified, or if one of the nationwide permit conditions which applies directly to the activity has been modified. In those cases where the nationwide permit is being reissued without change, and General Condition 4 does not directly apply, the verification remains valid as issued. In those cases where the previously used nationwide permit is being reissued with modification (NWPs 6, 12, 14, 21, 26, 27, 32) or General Condition 4 directly applies to the activity, activities which commence (i.e., under construction, or are under contract to commence) in reliance upon the earlier NWP, prior to January 21, 1997, will remain authorized provided the activity is completed prior to January 21, 1998, unless discretionary authority has been exercised on a case-by-case basis to modify, suspend, or revoke the authorization in accordance with 33 CFR 330.4(e) and 33 CFR 330.5 (c) or (d). Activities completed under the authorization of a nationwide permit that was in effect at the time the activity was completed continue to be authorized by that nationwide permit. DE's will, in accordance with 33 CFR 330.6(a), provide applicants with the above information in their responses to requests for verification of compliance with nationwide permits. These procedures are specified in 33 CFR 330.6(b).