Approximately 4,000 comment documents addressing the proposed nationwide permits were received in response to the June 17, 1996, Federal Register announcement (61 FR 30780), district public notices, one national public hearing, and 6 regional public hearings. The Corps has reviewed and considered all the comments. Many of the comments expressed support for the nationwide permit program while many others opposed the program. Most comment letters provided permit specific comments, providing information and recommending changes to both the permits and permit conditions. A few commenters provided comments specific to 33 CFR part 330, our regulations governing implementation of the nationwide permit program. These comments were also reviewed and have been made a part of the record. However, no changes have been proposed for 33 CFR part 330 and, therefore, it is not being revised at this time.
Regionalization of Nationwide Permits
The Corps proposed a process to regionalize the nationwide permits, particularly NWP 26, in order to reflect the differences in aquatic ecosystem functions and values that exist across the country. We envisioned a process where we would solicit the views of the various stakeholders regarding the nationwide permits and develop region-specific approaches for each district to best protect the environment while providing fair, reasonable, and timely decisions for the regulated public. The final permits we are issuing today reflect a clear decision to proceed in a way that does regionalize the program, particularly NWP 26. We are issuing NWP 26 for an interim period of two years, during which we will gather interested parties at the national level as well as the district and division levels, to develop replacement permits for NWP 26. The replacement permits will be activity-specific rather than the geographic based approach of NWP 26. By developing activity-specific NWPs to replace the existing NWP 26, we will be able to more clearly and effectively address the potential impacts to the aquatic environment, as well as more effectively address specific applicant group needs.
Once the Corps establishes activity-specific replacement permits that have clear national conditions to ensure the aquatic environment is protected and the impacts will be no more than minimal, each district, working with the Corps divisions, will establish regional conditions for the activity specific replacement permits. This may result in the revocation of certain NWPs in aquatic environments of particularly high value, and the addition of regional limitations to specifically address needs for protection of specific environmental assets. Of course, we will continue to encourage all districts to develop programmatic general permits (PGP) with states and other regional authorities that effectively regulate the waters of the United States. When such permits are developed and issued, it is often appropriate for the Corps district to revoke the nationwide permits in the area covered by the (PGP), provided the PGP provides at least the level of protection of the aquatic environment that the Corps does through its administration of the NWP program.
During the next two years, as the Corps develops the activity-specific replacement permits, the revised NWP 26 will be in effect. We have substantially changed NWP 26, with additional nationwide limitations and conditions, in order to provide substantially improved protection of the aquatic environment, and to ensure that only minimal adverse effects will result from use of the NWP. These additional limitations and conditions are discussed in detail in the preamble for NWP 26 below, as are the specific means by which we have directed the districts and divisions to regionalize NWP 26. In summary, we have directed our districts working with the divisions and Federal and state natural resource agencies to add region-specific conditions to all NWPs, paying particular attention to NWP 26, which will add an additional layer of protection to the changes we have put into place at the national level. This process will also involve public notice and comment to ensure that all interested parties have the opportunity to be involved in the process.
Reissuance Process
A few commenters also commented on the process we used for reissuance of the NWPs. One commenter felt that the Corps should have requested comments and suggestions from the public prior to issuance of the proposed nationwide permits. A few expressed concern that the Corps Special Public Notices, announcing the proposed nationwide permits and requesting comments, did not include sufficient information to generate meaningful comment by the public. These commenters felt that the public notices should have included such information as: The text of all nationwide permits proposed for reissuance, legal and biological justification for reissuance, the location of records regarding use and impacts of the nationwide permits, potential additional impacts due to reissuance or modification of the permits, the extent and effectiveness of existing mitigation permit conditions, the effect of the proposed changes in the permits, and the possible benefits to the nation of eliminating specific NWPs. These commenters also felt that the comment period was not adequate for so many permits at one time and recommended the Corps publish individual public notices for each permit, three per month, with 90 day review periods for each public notice.
The Corps believes that the process provided adequate information and time for public review and comment. We provided concise information regarding the proposed revisions to the nationwide permits and included the names, addresses and phone numbers of points of contact for requesting additional information. To include the information requested by a few reviewers as outlined above was not considered to be productive and the publication would be too voluminous and costly for publication and distribution to the general public. Information requests received during the review period were given priority and information was provided in as timely a manner as was possible. We extended the original 45 day review period by 14 days and added 6 regional public hearings to the originally scheduled hearing in Washington, D.C., in order to provide as much opportunity for the public to comment as was reasonable. In response we received approximately 4,000 letters of comment, and most of the public hearings were well attended. The Corps also believes it is much more efficient and less burdensome on all parties involved to collectively review all the nationwide permits at one time. To publish three notices a month for 90 days each would require more than a year to address all 39 NWPs and place a continuous review burden on the commenting public for the entire period. Such a process would also result in significant inefficiencies in the utilization of Corps limited resources for implementing the program.
Accounting
A substantial number of commenters stated that the Corps of Engineers should establish a system of record keeping to quantify impacts and mitigation, and that such records would be necessary to document that the nationwide permits have only minimal adverse environmental effects. Many commenters stated that the acreage lost due to nationwide permits is not known and the Corps cannot support a conclusion that the effects of the nationwide permits are not significant. A number of commenters stated that reporting should be required for all nationwide permits while others called for reporting for any permit which might have more than minimal impact. Comments indicated that, at a minimum, data reported should include the location and size of any wetlands, and should be collected by activity, nationwide permit number and acreage for each aquatic type. A large number of commenters asked that the records be published quarterly or annually and one suggested they be made available on the Internet.
The Corps has collected and reviewed specific data to assist in making program-wide determinations and decisions regarding the NWP program. While we believe that the data currently being collected for most nationwide permits is sufficient for these purposes, we are increasing the information we will regularly collect in the future. In particular, we are making changes to NWP 26 that will substantially increase the data base regarding that permit. Many districts also collect additional data relative to the use of nationwide permits for use in regionally conditioning the nationwide permits and evaluating specific actions on a case-by-case basis. We do not have the resources necessary for field verification of all nationwide authorizations and associated mitigation efforts. While we do not believe it is necessary to publish periodic reports regarding the nationwide permit program, information and data collected is available for public review upon request. Each district does periodically publish a "Permits Issued and Denied" report which is currently sent to standard mailing lists. The Corps is planning to provide access to such information and data via the Internet.
Enforcement
Most of those who commented on the enforcement of nationwide permits expressed the belief that the Corps has not enforced permit conditions or verified that projects are eligible for the nationwide permit issued. One commenter stated that lax enforcement gives violators an economic advantage over those who comply with the law. Commenters stated that the Corps must develop a system to monitor activities, verify applicant information, and enforce conditions. Several comments suggested conducting random inspections and penalizing violators. Other proposals included recommendations that we develop a process to allow citizens to petition the Corps to address a situation where conditions are not being met, or to allow citizens to sue the Corps to enforce conditions.
The Corps has limited human resources to manage the entire Regulatory Program. Since properly developed and coordinated nationwide permits have minimal individual or cumulative adverse effects, we direct the majority of our efforts to projects with a greater potential for impact to the environment. Every application received is reviewed and a determination is made whether the project is authorized by an existing general permit or requires a standard individual permit (IP) evaluation process. The Corps does inspect a selected number of permitted activities, including nationwide permit activities, each year to encourage and verify compliance with all terms and conditions of the permit (individual or general). The Corps does follow up on reports of alleged violations of the Clean Water Act (CWA) and/or the Rivers and Harbors Act of 1899 (RHA) and pursues resolution of those actions. The Corps currently accepts and investigates suspected violations reported by citizens. Furthermore, each district has an enforcement program and administers it in a manner to provide the most effective compliance with the CWA, to include spot checks, monitoring, reporting, etc.
Notwithstanding the above, we agree that we need to do more to ensure compliance. Therefore, the Corps is, with the reissuance of the NWPs, instituting a program that will require every verified permittee to certify, in writing, that they constructed the project in accordance with the permitted plans, including any mitigation. The Corps is reviewing its enforcement and compliance program to determine if additional guidance is necessary. Stacking of NWPs
Many commenters indicated that the use of multiple NWPs for a single project (a practice referred to as "stacking") should be eliminated or restricted because it allows opportunity for greater than minimal adverse effects to result under nationwide permit authorizations.
The purpose of the NWP program is to authorize activities that cause only minimal individual and cumulative adverse environmental effects with a minimum of administrative processing. While being responsive to applicants and protective of the aquatic environment are considerations that must be balanced, the Corps understands fully that the statutory threshold of "minimal adverse effects" is controlling, whether the action involves the use of one or more NWP. We believe that, under certain circumstances, NWPs can be used in combination and result in only minimal individual and cumulative adverse environmental effects. In this regard, our regulations provide for multiple use of NWPs (but each one only once for a single and complete project) provided that the combined adverse effects are minimal. If an activity, otherwise eligible for a nationwide permit, is an integral part of a project for which a standard individual permit is required, it cannot be authorized by an NWP. Most combinations of NWPs allowing discharges of dredged or fill material in waters of the United States (including wetlands and other special aquatic sites), require a PCN to the District Engineer (DE). The PCN process requires the District Engineer to determine whether the activity or combination of activities will result in more than minimal individual or cumulative adverse environmental effects. With this notice we are directing all District Engineers to conduct very critical reviews of projects involving stacking to ensure that no more than minimal adverse effects will occur.
While the Corps allows, under certain specific circumstances, the multiple use of NWPs for single and complete projects, many NWPs are generally "stand alone" project authorizations (e.g., NWP 21 would authorize all activities associated with the project) without the need for other NWPs. Some other NWPs, while they are occasionally used with other NWPs, generally are not (e.g., NWP 28 for modification of an existing marina is mostly used alone); however, occasionally it may be used with NWP 3 for repair of an existing structure or with NWP 13 for some bank stabilization. Generally, only 7 of the 37 NWPs are used more than occasionally with certain other NWPs for authorizing projects. These 7 NWPs are 3, 12, 13, 18, 19, 26, and 33. We believe that of those 7 NWPs, those with the potential to have more than minimal impacts, when used with certain other NWPs, are NWPs 18 and 26 in combination with each other and with NWPs 14 and 29. Consequently, to ensure that the multiple use of nationwide permits does not result in more than minimal adverse effects, the Corps will restrict the multiple use (i.e., stacking of those nationwide permits) as follows. NWP 14 has been modified so that it cannot be combined with NWP 18 or NWP 26 for the purpose of extending the limitations of any of the three permits. For example, NWPs 14 and 26 cannot be combined to authorize a fill of 3 1/3 acres. Furthermore, NWP 18 cannot be combined with NWP 26 to increase the threshold or the limitations of NWP 26. NWP 29 is already conditioned that it cannot be used in conjunction with NWP 14, NWP 18, or NWP 26. We have also limited the impacts allowed when stacking any NWP with NWP 26 or NWP 29. Whenever any other NWP is used in conjunction with NWP 26, the total acreage of impacts to waters of the United States, for all NWPs combined, cannot exceed 3 acres. Similarly, whenever any other NWP is used in conjunction with NWP 29, the total acreage of impacts to the waters of the United States, for all NWPs combined, cannot exceed 1/2 acre. We believe that these limitations will eliminate abuse of stacking while allowing appropriate multiple use of some nationwide permits. For example, the Corps could authorize a 0.3 acre road crossing to a 2.5 acre NWP 26 fill project, with appropriate avoidance and mitigation.
Finally, we have added General Condition 15 "Multiple Use of Nationwide Permits" that requires a Corps-only PCN in any case where any NWP 12 through 40 is combined with any other NWP 12 through 40 for a single and complete project. For example, if an applicant wishes to combine the use of NWP 14 for a road that does not involve fill in wetlands and NWP 13 for a bulkhead less than 500 feet in length, a Corps-only notification will be required; even though, the use of these NWPs for the projects described do not require a PCN if constructed independently. However, the change noted above will ensure that for combinations that have the potential to result in more than minimal adverse environmental effects, a Corps-only PCN will be required.
State Section 401 Water Quality Certification
Many commenters expressed opposition to the Corps practice of issuing provisional verifications of authorization under nationwide permits for which section 401 water quality certifications have been denied by the state. They expressed the belief that it put undue pressure on the states to certify the projects. Some also commented that it was unfair to require the states to issue, deny, or waive water quality certification within 60 days of receipt of an individual request for certification. Some felt that if a state denied water quality certification for a nationwide permit, the Corps should not authorize any projects under that particular NWP and that the projects should be evaluated under the individual permit procedures. Others believed that administration of sections 401 and 404 should be merged for NWP 26.
It is important to emphasize at the outset that it is the intent of the Corps to work closely with states and Tribes (or EPA where appropriate) during the next 60 days to facilitate State 401 Water Quality Certification. The Corps is committing to meet with the states and Tribes at the District level, with the goal of ensuring that issuance of each of the NWPs in today's package is consistent with Water Quality Standards established by the states, Tribes, and EPA. This process will include discussion and incorporation of appropriate terms and conditions that would ensure consistency with state/Tribal Water Quality Standards.
We believe that the procedures in 33 CFR part 330 regarding state 401 water quality certification are appropriate and provide a reasonable approach for the state to ensure their water quality standards will be met. Moreover, we believe denial of a 401 water quality certification for a nationwide permit should not be the sole basis for requiring an individual permit application for activities that would otherwise comply with the terms and conditions of that nationwide permit. Denial of state water quality certification for a nationwide permit does not necessarily mean that unacceptable adverse environmental effects will occur on a case-by-case basis. Rather, it indicates that the state is not confident that state standards will be met in all cases. It follows then that, based on the state's denial, the Corps denies authorization, without prejudice, for those activities for which the state denied section 401 water quality certification. Those activities cannot proceed under an NWP or an IP unless the state subsequently issues or waives a water quality certification for that activity. Thus, when the state determines that state standards are met in a specific case (i.e., an individual 401 water quality certification is issued or is waived), the nationwide permit authorization should be available to the prospective permittee. Finally, this approach is based on our desire to develop effective partnerships with states where workload is shared, regulatory duplication is reduced, and neither the Corps nor the states determine how the other party discharges its regulatory responsibilities.
Given the concern regarding the potential water quality impacts of NWP 26, the Corps will also provide an additional opportunity for review for this NWP. In those circumstances where a state has denied section 401 water quality certification for activities between 1/3 and one acre, EPA may request that the Corps provide EPA with PCNs for those proposed activities in the state. Specifically, if the Regional Administrator requests PCNs in those states that have denied water quality certification, the Corps will provide PCNs to EPA consistent with the notification general condition. EPA will work with the other Federal resource agencies to determine which PCNs they wish to receive, and will forward them as appropriate. We anticipate that in most states the agencies will not be receiving PCNs for discharges between 1/3 and one acre because of the Corps commitment to work with the states to ensure, to the best of our ability, that Section 401 water quality certification will be granted.
Several commenters stated that the Corps ought to prevent the states from requiring verification of authorization from the Corps under section 404 prior to receiving 401 certification or waiver thereof. Other commenters stated that the Corps should limit the states' review under section 401 to only 21 days. The Corps believes it would be inappropriate for us to instruct the states on implementation of their responsibilities under section 401, but rather we will work with the states to resolve concerns regarding impacts to the Nation's waters and implementation of our respective regulatory programs on a programmatic basis. This will include discussions between the states and the Corps on a reasonable period of time for the states to act on an individual Section 401 water quality certification.
One commenter recommended an additional general condition requiring that projects otherwise eligible for nationwide permits also be consistent with the requirements of section 303 of the Clean Water Act. The states, as part of their review and evaluation under section 401 of the Clean Water Act, are responsible for ensuring compliance with several sections of the Clean Water Act, including section 303. Therefore, we have proposed no changes for this provision.
Publication of the Nationwide Permits in the CFR
Many commenters were opposed to publishing the NWPs only in the Federal Register (FR) and suggested that they be published in both the Code of Federal Regulations (CFR) and FR. Many indicated that using the CFR is easier and more accessible and that the FR would make it more difficult and even a burden for the public to obtain a full list of available NWPs. One commenter stated that the Corps failed to provide an explanation of why it proposes to publish the NWPs only in the FR. One comment indicated that most county and university law libraries have the CFR, but not back issues of the FR; that only libraries with Federal document depositories have FRs and very few carry back issues. One commenter pointed out that although FRs are found on databases or CD Rom (e.g., Environmental Law Reporters) they usually have only the prior year on database. Therefore, they would have no access until the nationwide permits are over one year old.
One commenter requested that the final announcement include a summary of nationwide permits valid in each state to provide those who work in multiple states with a "one-stop reference" of potential nationwide permits.
The final nationwide permits have not been included in the CFR and are being published herein, following procedures similar to those for individual permits and regional general permits, because NWPs are permits, not regulations, and therefore, are not appropriate for publication in the Code of Federal Regulations. While publication in the CFR would provide a ready reference, publication of the final decisions on the nationwide permits are announced in the Federal Register and will also be published through regional public notices issued by District Engineers. Moreover, publication of the nationwide permits in the CFR does not provide an accurate representation of the nationwide permits for any particular area. Such CFR publication would not include the state 401 position nor regional conditions imposed by the local Corps district and division offices. Furthermore, the CFR is only published once a year. Therefore, the reissued NWPs would not be published until July 1997. In addition, it is our intention to ensure that all of the pertinent statutes, regulations and other guidance, as well as the nationwide permits including district regional conditions, be made available on the Internet in the near future.
Compliance With the National Environmental Policy Act
Numerous commenters stated that issuance of the NWPs in their proposed form would constitute a major Federal action which would have a significant effect on the human environment, thus requiring preparation of an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA). Numerous commenters also contended that the Corps decision documents are inadequate, do not provide enough information, and are based on insufficient data to appropriately evaluate the impacts of the NWPs. Many of the comments received indicated the Corps should prepare an EIS to ensure that adverse effects are minimal. One commenter added that, at a minimum, an EIS should be prepared for NWPs 26 and 29. Other commenters listed the following NWPs as needing an EIS: NWPs 12, 13, 14, 21, 34, and 40.
Several commenters requested that the Corps prepare a cumulative impact analysis now and make it part of an EIS. Several different commenters provided the following estimates of cumulative impacts occurring under the existing NWP program as acres of wetlands lost: 70,000 acres per year; 82,000 acres from 1988 to 1996 nationwide from 27 of the 36 Corps districts and only from NWPs that were reported to the Corps (included in this figure was an estimate of 4,333 acres of vernal pools lost in California); in 1994 more than 90,000 wetland filling activities proceeded under Corps general permits; nearly one- half million activities; the sum of the small, 0.5-acre, wet areas, like the prairie potholes and vernal pools, impacted is biologically significant; the National Oceanic and Atmospheric Administration's National Marine Fisheries Service (NMFS) Pre-construction Notification (PCN) database from 1992 to 1996 indicated a loss of 5,500 acres in the southeast region of the United States (Florida had more than 2,000 acres, Georgia, more than 1,000 and coastal Texas 300 acres in Harris County alone).
Several commenters raised the issue of alternatives analysis. One commenter recommended that a full range of reasonable alternatives be explored in the decision documentation, to include not only alternative formulations of the individual NWPs, but also alternative approaches to NWPs, in general. The commenter states that Programmatic General Permits (PGPs), including state PGPs, have already been demonstrated to be effective in several northeastern states. One commenter requested that the decision documents incorporate the regional conditions.
The Corps has collected data relevant to the usage of nationwide permits and associated impacts and we believe that our data demonstrate that the adverse effects from the previous NWPs were minimal. These data show that for Fiscal Year 1995 (FY95) a total of 43,775 activities were authorized with written Corps verifications under all of the NWPs nationwide (this total does not include those for NWP 27, which allows for creation, enhancement and restoration of wetlands and are, therefore, anomalous to this data set). These authorizations under all of the NWPs adversely affected approximately 6,500 acres of wetlands and the Corps received approximately 7,800 acres of mitigation in return. It is estimated that there were approximately 87,000 activities authorized by all of the NWPs nationwide that did not require a PCN, or were otherwise verified in writing by the Corps. We estimate that these unverified authorizations adversely effected an additional 4,300 acres of wetlands. Although this is less than many have suggested, we are consciously striving to reduce this loss through the changes to the program set forth here today. Moreover, the provisions and limitations of the nationwide permit program ensure that those activities authorized by NWPs will have less than minimal adverse environmental effects. Notwithstanding our continued belief that adverse effects of the NWP program have been minimal and the fact that the NWPs we are issuing today will substantially reduce potential effects, the Corps will collect additional data on the reissued NWPs, to document more fully the impacts. For all NWPs that involve a PCN, we will collect data on the acreage of impact and acreage of mitigation. We are also adding a condition to NWP 26 that will require all permittees to notify the Corps of the acres of impact of their project.
The Corps evaluation of the impacts on the aquatic environment resulting from the Nationwide Permit (NWP) program indicates that the cumulative adverse environmental effects are minimal and not significant. This is based on our belief that cumulative impacts must be viewed in the context of the individual watersheds. We believe that past regional conditions placed on NWPs, particularly NWP 26, in many districts have substantially reduced cumulative impacts on a watershed basis. Districts have revoked NWP 26 in many high value watersheds and placed additional notification or other limitations on NWP 26 to ensure minimal adverse environmental effects to specific watersheds. Although these past regional protections have substantially reduced adverse environmental impacts, we believe additional protections are needed to continue to ensure that only minimal adverse environmental effects will occur. Some of the additional protections we are implementing include substantially reducing the acreage limits under NWP 26, ensuring that stacking of NWPs impacts a maximum of 3 acres and only after a review by the Corps, substantially increasing the number of instances where a Corps review is necessary, and requiring increased and more detailed data collection to better monitor NWP activity. Moreover, we are more strongly directing the Corps districts and divisions to add regional conditions for high value watersheds, and additional generalized regional conditions that will ensure that only minimal impacts will occur. This will also ensure that cumulative impacts will not be significant.
In that the adverse effects will be less than minimal, it also follows that they will not result in "significant impacts on the human environment," the threshold requiring an EIS as defined within regulations implementing NEPA. Thus, no EIS is required prior to finalization of these nationwide permits. Formal documentation of the Corps analysis and determinations have been prepared in compliance with NEPA and the Clean Water Act. This documentation includes an environmental assessment and, where relevant, a section 404(b)(1) Guidelines compliance analysis. Copies of these documents are available for inspection at the office of the Chief of Engineers and at each Corps district office. Additionally, Division Engineers will supplement the national NWP decision documentation to discuss regional conditions and regional revocation requirements, which further ensure that the impacts are minimal. These supplements will be available for inspection at the appropriate district offices. We have prepared a programmatic alternatives analysis for each NWP which discusses administrative alternatives to issuing each NWP.
General Permit Criteria
Several commenters requested that the Corps define what constitutes "minimal" adverse effects and "similar in nature" and prove or guarantee that the NWPs meet the legal requirement that wetland fills have no more than minimal adverse effects before the NWPs are reissued. One commenter stated that the Corps simply ignores the requirement of section 404(e) for activities that are "similar in nature" and have no more than minimal adverse effects on aquatic resources such as wetlands. Another commenter recognized that generally the NWPs are conditioned to ensure that adverse effects will be minimal, but was nevertheless concerned that there are many serious exceptions, noting NWPs 26, 29, 34, and 40. One commenter argued that some of the NWPs covering activities that are similar in nature could affect wetlands that were not similar, including NWPs 7, 12, 13, 14, 16, 17, 19, 21, 25, 26, 29, 33, 34, 37, and 40. Most commenters indicated that NWP 26 was of most concern and others commented that, without mitigation, there could be a cumulative effect. Several commenters recommended that the Corps first obtain data to determine the extent of the project impacts. Without such data, they maintain that it is difficult to accurately assess if wetland fills authorized by the NWPs comply with the Clean Water Act requirements for no more than minimal individual or cumulative adverse environmental effects.
We have determined that it is not appropriate to define the term "minimal" at the national level, because what constitutes minimal adverse environmental effects can vary significantly from resource to resource, state to state, county to county, and watershed to watershed, as well as district to district. Moreover, the term "minimal" must be defined based on the effects of the specific project in the immediate vicinity, and in the watershed where the activity will occur. Simply listing the acres lost nationally is not instructive regarding minimal adverse effects. Therefore, the determination of "minimal" adverse environmental effects is left to the discretion of the DE. The district represents the most knowledgeable office concerning the aquatic resources within that particular region, and the DE is therefore the most capable of assessing relative impacts that would result from activities authorized under the NWP program. We believe that each nationwide permit authorizes similar activities within the definition for general permits as defined in 33 CFR 322.2(f) and 323.2(h), and with each district's capability to identify impacts associated with these activities and the ability of the DE to require project specific mitigation or to exercise discretionary authority, activities authorized under these NWPs will have less than minimal adverse effects. The Corps divisions have had the authority, based on recommendations from the Corps districts, to reduce potential adverse effects by imposing regional conditions or revoking the applicability of specific NWPs in high value aquatic areas. The Corps divisions have used this authority in many cases. However, we are, in this notice, further emphasizing to all Corps districts and divisions that they should use this authority within their geographical areas to further ensure that only minimal individual and cumulative adverse effects will occur. We expect that each division will, based on the recommendations from each district, restrict the use of several nationwide permits to ensure protection of high value aquatic systems under its authority. Moreover, districts will ensure that adverse effects under NWP 26 are minimal by requiring mitigation for most projects above 1/3 acre. This determination is further reinforced by the NEPA and Section 404 evaluations discussed above. The collection of detailed data for the purpose of addressing cumulative impacts is also addressed above under "Compliance with the National Environmental Policy Act."
Endangered Species
The Corps believes that the procedures that we have in place ensure proper coordination under section 7 of the Endangered Species Act (ESA) as well as ensuring that threatened and endangered species will not be jeopardized and their critical habitat will not be destroyed. We also believe that current local procedures in Corps districts are effective in ensuring that the ESA is fully complied with under the nationwide permit program. Finally, we have incorporated several additional assurances into the program which have resulted from informal consultation with the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS).
Under the current Corps regulations for our NWP program (33 CFR 330.4(f)), each district must consider all information made available to it, and information that it has in its own records, to determine whether any listed threatened or endangered species or critical habitat may be affected by a specific permit action. Based upon this consideration and evaluation, the district will initiate consultation with the FWS or NMFS, as appropriate, if the district determines that the regulated activity may affect, or if the district believes that the action is not likely to adversely affect, any endangered species. Consultation may occur under the NWP process or the district may assert its discretionary authority to require an individual permit for the action and initiate ESA consultation during the individual permit process. If the ESA consultation is conducted under the NWP process without the district asserting its discretionary authority and require an IP, then the applicant will be notified that he cannot proceed until the consultation is complete. If the district determines that the activity would have no effect on any endangered species, then the district would proceed to issue a NWP verification letter. The Corps verification letter will explicitly state that the Corps has made a determination of no affect on endangered species.
Corps districts have, in most cases, established informal or formal procedures with their local counterparts in the FWS and NMFS through which the agencies share information regarding endangered species. Information developed, shared, and used by the local Corps and FWS/NMFS offices result in the Corps becoming aware of potential adverse effects on ESA-listed species. In most cases, maps and computer data bases are available on the local level that identify locations of populations of endangered or threatened species and their critical habitat. Moreover, for cases which involve a level of potential adverse effects that require a PCN process of coordination with the other agencies, the Corps is now specifically requesting any information that the FWS or NMFS may have on endangered species as part of the PCN consultation. Thus, based on location of the project, an additional level of review now exists for these types of projects. Furthermore, the Corps is now requiring additional PCNs in additional areas and for additional types of activities to ensure that the potential NWP effects will be minimal, for example, the lowered threshold levels of NWP 26. This provides for an additional level of review for many more activities. Any information provided through the PCN process will be used by the district to make its "may affect," "not likely to adversely affect" or "no affect" determination.
In addition to the procedures listed above, each NWP verification includes General Condition 11, which states that "no activity is authorized under any NWP which is likely to jeopardize the continued existence of a threatened or endangered species * * * or which is likely to destroy or adversely modify the critical habitat of such species." Also, to avoid possible confusion on the part of some applicants, Condition 11 has been modified to clarify that this NWP does not authorize the taking of Federally listed threatened or endangered species. This should help ensure that applicants do not mistake the Corps permit as a Federal authorization that would allow the taking of Federally listed threatened or endangered species.
Although the Corps continues to believe that these existing procedures ensure that the Nationwide Permit Program complies with the ESA, we will take the following additional steps to provide further assurance. First, although not required, the Corps will initiate programmatic formal section 7 consultation with the FWS and NMFS as a precaution to further ensure that there is no adverse effect on listed species. We intend that formal consultation will be concluded as soon as possible but not to exceed two years from the date of issuing the revised and reissued NWPs. Second, the Corps will direct the district offices, in writing, to meet with appropriate local representatives of the FWS and NMFS and to establish or modify existing procedures to ensure that the Corps has the latest information regarding the existence and location of any Federally listed threatened or endangered species or their critical habitat in its district. This will ensure that districts have the best information available to make decisions regarding whether an activity may affect an endangered species and thus whether or not to initiate consultation. The Corps districts can also establish through local procedures, regional conditions or other means of additional consultation for areas of particular concern that a permitted activity may affect an endangered species. The Corps believes that the procedures that we have in place ensure proper coordination under section 7 of the ESA, as well as ensuring that threatened and endangered species will not be jeopardized, and that their critical habitat will not be destroyed.
While we are issuing/reissuing this entire package of NWPs (except for NWP 26) for a period of five years, we will be working over the next twenty-four months to collect data, monitor use of these NWPs, and conduct formal consultation under section 7 of the ESA. This two year process is intended to provide us with more detailed information on the types of activities being authorized, the nature and extent of wetlands and other waters being affected by the NWPs, and potential effects to the Nation's Federally listed threatened and endangered species. Immediately following the conclusion of this two year process, we will use the results of this data collection, analysis, and consultation to reevaluate the NWPs being issued/reissued today to determine what modifications are necessary. We will provide to the public, by notice in the Federal Register, the results of our data collection and consultation. In addition, we will provide the opportunity for public comment on changes to the NWP program that might be necessary to ensure compliance with the CWA, ESA and NEPA. In the interim, we would welcome any comments or information that the public might wish to provide relevant to our data collection and consultation process.