Regulatory Program of the
US Army Corps of Engineers

Part 330 - Nationwide Permit Program

Final Notice of Issuance, Reissuance, and Modification of Nationwide Permits - 13 December, 1996

26. Headwaters and Isolated Waters Discharges: The Corps proposed two options to change the previous thresholds associated with this NWP and committed to regional conditioning of the NWP to ensure minimal adverse effects. Numerous comments were received and are addressed by categories in the following text. Based on the recommendations from the public and other agencies, as well as the Corps internal review of implementation of NWP 26 over the past 5 years, we have made substantial changes to the permit. We have reduced the thresholds of NWP 26 to 1/3 and 3 acres, added a limitation for linear waterbodies of 500 linear feet, and stated that we believe that most projects above 1/3 acre will result in mitigation requirements to offset adverse effects to the aquatic environment. We believe that these additional limitations that we have placed on NWP 26 will greatly improve the environmental protection afforded by Corps review of projects under this NWP and will better ensure that no more than minimal adverse effects will occur. In addition to the substantial limitations that we have placed within the terms and limitations of the NWP 26 at the national level, we are directing our districts to carefully evaluate the aquatic systems in their districts and, working with the Corps divisions and the other Federal and state agencies, add additional limitations as necessary for added protection of the aquatic environment. These changes are detailed below in our discussion of the comments we received.
    General: More than 500 commenters provided comments specifically addressing NWP 26. Numerous commenters expressed opposition to NWP 26, expressing concern that NWP 26 authorizes activities that are not similar in nature and activities that have greater than minimal impacts both individually and cumulatively, concluding that NWP 26, in many cases, is therefore, "illegal". Many of these commenters believe that the NWP should be deleted while many acknowledge a necessity for such a nationwide permit, but feel that the NWP must be modified to respond to the growing concerns for the potential cumulative effects resulting from activities authorized by this permit.
    Many of these commenters also expressed concern that wetlands impacted by NWP 26 (those above headwaters and isolated wetlands) are as valuable, if not more so, than other wetlands to which NWP 26 does not apply. These commenters state that there is no scientific evidence that supports the concept that these wetlands are of less value and refer to a 1995 National Academy of Sciences' National Research Council Report, which states: "the scientific basis for policies that attribute less importance to headwater areas and isolated wetlands than to other wetlands is weak." Some of these commenters also commented that there is no scientific basis for the threshold limits.
    Numerous commenters expressed the view that the NWP has worked well, that there is no evidence to indicate that it is resulting in more than minimal adverse effects and that the loss or further limiting of NWP 26 would result in increased regulatory burdens on the public, less regulatory certainty, unacceptable work load increases for the Corps, increased processing times, project delays, and an overall lessening of the regulatory program's ability to protect waters of the United States.
    The Corps proposed 3 options for acreage limits that would define when a PCN must be submitted. These options were:
      Option 1: 1 to 10 Acres (no change)
      Option 2: 1/2 to 5 acres
      Option 3: 1/3 to 3 acres
    Thresholds: Approximately 70% of the more than 400 comment letters on these threshold options expressed a preference for Option 1, no change in the thresholds of 1 and 10 acres.
    Many of these commenters suggested that a lowering of the thresholds would result in a lessening of the practice by developers of minimizing their wetland fills to fit under the thresholds because the thresholds would be too low to meet. The result then being, that they would be forced into the PCN or individual permit process and would apply for non-minimized fills. Many commenters also estimated that the Corps work load would increase significantly, thus causing the Corps to be less effective in its mission to protect wetlands. A few commenters believed that in those cases where mitigation is required for all fills (often a state or county requirement), that the effect of causing developers to reduce fill areas to even smaller fills (by lowering the threshold to 1/3 of an acre) could be more, smaller mitigation sites.
    A few commenters preferred changing the thresholds to option 2.
    Approximately 30% of those commenting on this subject preferred option 3, (1/3 & 3 acres). Most of these commenters expressed the view that the current thresholds are allowing more than minimal adverse effects and that the lower levels would better assure that the NWP would not result in more than minimal adverse effects.
    A few commenters recommended that the thresholds be increased to enhance flexibility and program efficiencies.
    The Corps acknowledges the concerns, expressed principally by natural resource agencies and environmental groups, for the potential level of adverse effects resulting from NWP 26 in its present form. The Corps also acknowledges the concerns of the regulated public for the potential lessening of regulatory certainty and flexibility in the program through further limitation of the scope of NWP 26.
    The Corps agrees that the level of cumulative adverse effects under NWP 26 must be reduced and more effectively mitigated. We will later discuss the manner in which the Corps has addressed the concerns regarding impacts to the aquatic environment. We also believe it is important to understand the history and derivation of the Corps NWP program.
    In 1977, the Corps developed the headwaters and isolated waters nationwide permit (NWP 26) as we extended section 404 jurisdiction to all waters of the United States (including isolated and headwaters areas). Prior to 1977, the Corps did not require Section 404 permits for discharges of dredged or fill material into waters in these geographic areas. Over the past 19 years NWP 26 has been revised in an attempt to ensure that activities are not authorized under NWP 26 if such activities would result in more than minimal adverse effects, either individually or cumulatively, to the waters of the United States, including wetlands. While the Corps had to assure compliance with this statutory requirement (Clean Water Act section 404(e)), it also had to consider the environmental and programmatic implications of an extremely heavy regulatory workload.
    The most recent data and scientific literature indicate that isolated and headwater wetlands often play an ecological role that is as important as other types of wetlands in protecting water quality, reducing flood flows, and providing habitat for many species of fish and wildlife. For example, in many parts of the Nation, isolated and headwater wetlands comprise a significant portion of the functioning wetlands that remain in existence. As previously noted, the National Academy of Sciences concluded in its 1995 report on wetlands that there is no scientific basis for policies that attribute less importance to headwater areas and isolated wetlands than to other wetlands.
    In light of our internal evaluation of NWP 26, and a careful consideration of all comments regarding its reissuance, we have determined that a modified approach to NWP 26 and eventual replacement of NWP 26 is necessary in order to ensure that in the future no more than minimal adverse effects occur to the waters of the United States, both individually and cumulatively. This determination is supported fully by the majority of comments from the public and other Federal and state resource agencies. Therefore, NWP 26 will be immediately modified and eventually replaced with a new approach to authorizing activities with minimal adverse effects. This new approach will take into account the Corps workload and a desire to reduce unnecessary regulatory burdens.
    The approach that we are implementing today will ensure that only activities resulting in minimal adverse effects go forward under NWP 26, while maintaining flexibility and expedited permitting for applicants proposing such projects. Based on the desire to develop a more specific data base on the specific types of activities authorized under NWP 26 and an improved data base on impacts of projects authorized under NWP 26, we have determined that a phased approach to NWP 26 is necessary. In this regard, we are, with this notice, issuing a modified NWP 26 for a period of two years rather than the normal 5 year period for all other nationwide permits. During this two year period, which starts with today's date, the Corps will collect additional data on the types of activities regulated and develop, propose, and issue new nationwide permits to replace the revised NWP 26. Although we recognize the ecological importance of isolated and headwater wetlands and the potential for impacts to these resources by NWP 26, we believe it is necessary to reissue NWP 26, in its more restrictive and environmentally sensitive form, during the two year phase out period to ensure fairness to the regulated public and to allow for development of activity specific replacement NWPs. The replacement permits, which will be activity specific, will be published for public review and comment approximately 18 months from today (approximately May 1998). The Corps is entering this initiative with a completely open view to the final outcome and would welcome any comments from the public over the next six months regarding specific categories of activities that should be considered for new nationwide permits. Such comments should be directed to the address listed in the ADDRESS section of this notice. For example, NWP 29 is an activity-based NWP for single family residences with a 1/2 acre fill limitation. Another example could be fills associated with the expansion of existing commercial developments, with acreage limit specific conditions, and a PCN to evaluate the potential for more than minimal impacts. In taking this approach, the Corps will evaluate the types of activities that are currently authorized under NWP 26 and identify appropriate limitations for the activity-specific NWPs to ensure that the "minimal adverse effects" requirement of section 404 (e) is met. It is also important to note that the public will have an opportunity to formally comment on the proposed replacement permits once they are officially proposed in approximately 18 months.
    During the two year period that may be required to issue activity-specific permits to replace NWP 26, we believe that certain modifications to NWP 26 are necessary. Thus, we are changing the threshold limits to 1/3 and 3 acres. Using these thresholds, the maximum fill allowable under NWP 26 will be 3 acres. Discharges over 1/3 acre will require a PCN. Although a number of projects between 3 and 10 acres will now need individual permits, we believe that the increase in workload will be manageable. Moreover, a key element of the Corps' ability to manage the increased workload is the requirement of a Corps-only PCN for fills between 1/3 and 1 acre. While we do not believe that the notification of other agencies is necessary for activities in the 1/3 to 1 acre range, we will provide quarterly NWP 26 data to the Federal resource agencies for their programmatic review. The Corps will also coordinate its evaluation of those proposed activities that involve issues relevant to other Federal agency expertise (e.g., endangered species, water quality standards). In addition, the Federal resource agencies will be provided a copy of the PCN for fills over 1 acre and given an opportunity to comment to the Corps before the work is verified as authorized under NWP 26.
    The Corps will continue to work closely with Federal and state resource agencies to add necessary regional conditions and procedures to the revised NWP 26. As with all nationwide permits, we will emphasize the requirement to avoid and minimize impacts on-site.
    In summary, the revisions proposed today for NWP 26, and its planned replacement with activity-specific general permits, recognize fully the requirement to ensure that adverse effects to the waters of the United States are no more than minimal and the need to provide an expedited review process for truly minor activities. In taking the phased approach, we allow for an orderly transition from the previous NWP 26 to a set of activity-specific replacement nationwide permits. It is our intent to make this change in a manner that minimizes disruption and confusion for the regulated public, while at the same time improving environmental protection.
    To further ensure that geographical areas or waters do not receive greater than minimal adverse effects through the excessive use of NWP 26, we are with this notice directing district and Division Engineers to carefully review areas under their authority with a view toward additional regional limitations to NWP 26. We believe that every district has high value aquatic areas where NWP 26 must be further limited or revoked.
    Further, Division Engineers may revoke the NWP for specific geographical areas. District engineers also have the authority to exercise discretionary authority and require an IP on a case-by-case basis when they determine that the "minimal adverse effects levels" will be exceeded. Furthermore, we are directing district and Division Engineers to further reduce impacts by requiring mitigation for most projects from 1/3 to 3 acres through the PCN process. In most cases, mitigation for impacts below 1 acre will be most beneficial through mitigation banks and "in lieu fee" programs. In lieu fee programs allow permittees to obtain mitigation through funds paid to groups who will use these funds to restore, create, enhance, and preserve wetlands. Such groups include states, counties and land trusts. Such in lieu fee approach is currently in place and very successful in the state of Ohio. Our Huntington district, in conjunction with the state, established a fee structure for NWP 26 authorizations. The fees go to Ohio Department of Natural Resources and are used to acquire, restore and manage former wetlands.
    Review Period: A large percentage of those who commented on the proposal to increase the 30 day pre-construction notification period, expressed opposition to the proposal. They commented that 30 days is adequate and that an increase in the review period would only result in reviewers delaying their review rather than conducting more extensive reviews; that more extensive reviews, if conducted, are unnecessary for projects of NWP 26 magnitude, and that the proposal would result in an unnecessary extension in the processing time of what is currently a good expedited process. Approximately 30% of the commenters felt that the increase should be implemented in order to provide for more thorough review. One commenter recommended the elimination of the "de facto" authorization provision, because there is no logic to allowing the elimination of wetlands as a result of administrative situations.
    Having given full consideration to the comments received and discussed the topic at length with the resource agencies involved, we have concluded that it is necessary to extend the review period to 45 days while maintaining the "de facto" authorization provision. Increasing the review period by only 15 days will, we believe, allow adequate and efficient review of the increased number of NWP 26 applications expected due to the lowering of the PCN thresholds, and will not place an unfair burden on the regulated public. The de facto authorization provision is considered necessary to provide a reasonable control on the review period for these relatively minor actions and to provide as much regulatory certainty as possible to the regulated public.
    Regionalization: Many Commenters supported the concept of regionalization of the NWPs by districts either because of the opportunity to provide additional protection to sensitive ecological areas, as well as more appropriately to provide protection for regionally differing environments.
    Many commenters were opposed to the concept of regionalization of the NWPs by districts because of concern that districts would, unnecessarily, further limit the applicability of the NWPs when they have been found by the Corps to authorize less than minimal adverse effects nationwide.
    The Corps believes there are benefits to be gained through regional conditioning of NWP 26, both for natural resource protection and for the regulated public. Guidance being provided to the districts and divisions will require that the districts provide opportunity for full public review and comment in the process for establishing regional conditions, and will require that they consider modifications of the acreage limits and limitations of use, based on types of aquatic resources and activities. They will also consider potential impacts to the regulated public, to district workloads, and the ability of the district to effectively implement the regulatory program. Further definition of the permit, through regional conditions, will provide the regulated public with increased certainty and predictability while at the same time further ensuring against use of the permit under circumstances that may cause greater than minimal adverse effects. The fact that districts and divisions do regionalize NWP 26 through regional conditions to protect certain aquatic systems is one of the reasons that the Corps has determined that only minimal adverse effects occur nationwide.
    Notification: Several commenters felt that all actions permitted under NWP 26 should be reported to the Corps to provide the Corps with full knowledge of the extent and impacts of such actions. In general, these same commenters also suggested that the Corps keep more extensive records of this information and make it readily available to the general public.
    One commenter expressed concern for the lack of data collected by the Corps with regard to the use of NWP 26 and the corresponding lack of analysis to support the determination that NWP 26 results in no more than minimal adverse effects. A few commenters expressed the belief that the Corps is not fulfilling an earlier commitment to monitor and evaluate the impacts of NWP 26.
    The reduction of the PCN threshold from 1 to 1/3 acre will significantly increase the percentage of activities reported to the Corps and provide an adequate level of information for continued monitoring of authorizations under NWP 26. Notification will have essentially three threshold limits. We have established a reporting requirement for all impacts up to the minimum threshold of 1/3 acre. This report, which will include basic information such as the name of the permittee, location of the activity, description of the work, and the types and size of the impacted area, will be required within 30 days of the completion of the work. We are encouraging support of, and participation in, this important information gathering process so the Corps can better determine ways to protect wetlands in a fair, flexible and effective manner. Next, we will require a "Corps-only" notification for impacts between 1/3 and 1 acre. These PCNs will be reviewed by the Corps to assure compliance with permit conditions, and to determine what level and type of mitigation should be required. Finally, authorization under NWP 26 will require full resource agency coordination under the notification procedures for impacts between 1 and 3 acres. For all the PCNs, the Corps review will ensure that no more than minimal adverse effects will occur and that appropriate mitigation will be required.
    The Corps collected data from its district offices on the use of all NWPs for Fiscal Year 1995, including NWP 26. The data shows that 13,837 activities were authorized by NWP 26, impacting approximately 5020 acres of wetlands, with an average of 0.36 acres of impact per NWP 26 authorization. The Corps received approximately 5809 acres of mitigation for these impacts, yielding a mitigation ratio of approximately 1.15:1. To ensure continued monitoring of NWP 26 and all other NWPs, the Headquarters office will begin collecting quarterly data from the field beginning in the second quarter of fiscal year 1997. The data parameters will include, at a minimum, the use of the NWPs, both actual and estimated (for those with non-reporting thresholds), impact acreage, resource types, geographic locations (e.g., counties) and mitigation received. These parameters will be further set forth in guidance to the districts following the publication of this Federal Register notice and after coordination with the other Federal resource agencies.
    Mitigation: Several commenters suggested that a threshold be set for requiring mitigation. Some recommended a threshold of one acre be set, above which mitigation would be required and one recommended mitigation be provided at a 2:1 ratio. A review of NWP 26 verifications provided in fiscal year 1995 indicates that more than an acre of mitigation was provided for every acre filled. We believe that this fulfills the national goal of no net loss in wetlands. We do not believe it is appropriate to require mitigation in every case or at a standardized ratio nationwide. We believe mitigation determinations are better established on a local and/or case-by-case basis. Therefore, we have not required a specific ratio as a general condition of NWP 26. However, we do believe that most actions involving fill of 1/3 acres or more will have some level of mitigation, based on the Corps determination of aquatic functions and values lost. Corps districts may establish fixed ratios for particular waterbodies or specific types of waters in their areas. Districts may also set specific in lieu fee schedules within their areas.
    Many commenters raised concerns that, by applying compensatory mitigation in the context of a NWP, the Corps authorizes activities that, but for the mitigation, may have more than minimal adverse environmental effects. Those commenters were concerned that the CWA requires that only activities with minimal effects may be authorized by a general permit. Activities that have more than minimal adverse effects are subject to the individual permit process and the associated analysis of alternatives, individual public notice procedures, and other aspects of individual review that help to ensure that potential adverse effects are fully avoided and minimized before any activity is approved.
    Given these concerns, the Corps will be considering whether or not modifications to the mitigation provisions of the regulations are appropriate and will be meeting with other Federal agencies to discuss this issue. In the interim, the Corps is seeking specific comment on the use of compensatory mitigation in the context of the Nationwide Permit program and any recommendations for modification to the mitigation provisions. Should the Corps determine that revision to this policy is appropriate, a rulemaking process to change the regulations at 33 CFR part 330 may be necessary. This process would include notice and full opportunity for public participation.
    Subdivisions: One commenter recommended deleting all wording on subdivisions except that which clarifies the single-use applicability of NWP 26. More specifically the commenter recommends deletion of the exemption provisions of the NWP 26 subdivision rules.
    One commenter suggested that "commercial," "industrial," and "office" subdivisions should not be held to the same restrictions as residential development because of their more extensive level of planning and design.
    One commenter suggested that the October 5, 1984, date for subdivision exception be changed to January 21, 1992.
    We have evaluated these comments and continue to believe that the subdivision language in NWP 26 is appropriate. We do not agree that, as a general matter, commercial office or industrial projects are necessarily subject to better planning than many large residential developments.
    Environmental Impact Statement: A number of commenters recommended that an Environmental Impact Statement (EIS) or study be conducted prior to the re-issuance of NWP 26, because of their perception that the use of the NWP is causing or will cause extensive impacts to wetlands.
    The Corps collected data from its district offices on the use of all NWPs for Fiscal Year 1995, including NWP 26. These data show that 13,837 activities were authorized by NWP 26 impacting approximately 5,020 acres of wetlands, with an average of 0.36 acres of impact per NWP 26 authorization. The Corps received approximately 5,809 acres of mitigation for these impacts, yielding a mitigation ratio of approximately 1.15:1. To ensure continued monitoring of NWP 26 and all other NWPs, the Headquarters office will begin collecting quarterly data from the field beginning in the second quarter of Fiscal Year (FY) 1997. The data parameters will include, at a minimum, the use of the NWPs, both actual and estimated (for those with non-reporting thresholds), impact acreage, resource types, geographic locations (e.g., counties) and mitigation received. These parameters will be further set forth in guidance to the districts following the publication of this Federal Register notice and after coordination with the other Federal resource agencies.
    Furthermore, the Corps has conducted an analysis of the environmental impacts associated with the re-authorization of this permit in compliance with the requirements of NEPA. This analysis has been documented in an Environmental Assessment in accordance with NEPA and resulted in a Finding of No Significant Impact in accordance with NEPA. Therefore, an EIS is not required. The Corps believes that the modified NWP 26 structure, along with regional conditions and case specific discretionary authority, will ensure that adverse effects are no more than minimal on a watershed basis. We believe that it is inappropriate to simply sum the total acres of impact nationwide and assume significant impacts. We believe that environmental effects must be viewed on a watershed basis. With the substantial level of mitigation required by the Corps for impacts to the higher value wetlands, we believe that the environmental effects are not significant.
    Corps Workload: The Corps agrees with the majority of commenters that a general permit, such as NWP 26, is necessary for fair, effective, and efficient implementation of the Corps regulatory program. Although the final NWP 26 we are issuing today will increase the Corps workload, we believe that overall workload will remain manageable.
    To evaluate the effects of the current changes to NWP 26 on Corps workload, we analyzed data collected during surveys of the Corps districts during FY94 and FY95. Additionally, data from quarterly reports was used to determine IP workload. We estimate that the changes we are implementing today will increase the number of PCNs for NWP 26 (due to the lowering of the PCN threshold) by nearly 10,000, compared to the estimated 2,700 evaluated in 1996. However, the vast majority of the additional 10,000 additional PCNs will be Corps-only evaluations. We estimate that the NWP 26 we are issuing will result in approximately 500 additional individual permits nationally (approximately a 10% increase over Fiscal Year 1996). This increase will be due to applicants requesting IP authorization of projects with impacts greater than 3 acres, but which would have qualified for verification under the old NWP 26 guidelines. The Corps would not be in a position to evaluate all, or even a majority, of the activities we currently authorize under NWP 26 without severe impacts to the Corps responsiveness to the regulated public. The Corps regulatory program verified approximately 14,000 NWP 26 actions (including both those projects for which a PCN was required and those for which no PCN was required but verification was requested) and evaluated 5,040 IP actions in FY96. The workload associated with the additional processing of just the 14,000 currently verified NWP 26 cases as IPs, would increase the IP work load by a factor of 4 to approximately 29,000. An IP workload increase of this magnitude would render the program ineffective, and would be a disservice to the American public and overall environmental protection. Additionally, it is estimated by Corps districts that another 20,000 NWP 26 activities were accomplished during FY96 without the requirement for reporting to the Corps. Complete elimination of NWP 26 would result in an increase in the IP workload by approximately seven fold. This level of increase would greatly extend the processing time for IPs, make Corps resources unavailable for jurisdictional determinations and enforcement actions, and severely reduce our ability to continue to protect the aquatic environment.
    Others: The Corps intends to initiate substantial improvements to its data collection for all NWPs, particularly NWP 26. Furthermore, during the two year period that NWP 26 is currently issued, the Corps will collect data on the types of activities as well as impacts to the aquatic environment and mitigation required. We are also instituting a self reporting requirement for fills below 1/3 acre. The Corps will continue to collect data on acres of impact and mitigation on a permanent basis.
    A few commenters recommended including a linear footage limitation on headwater systems of 200-500 feet (consistent with other NWP limitations) for application to linear wetlands and headwater streams.
    We concur with this comment and have placed such a limitation on NWP 26 for activities directly affecting (filling or excavating) more than 500 linear feet of the stream bed of creeks and streams. Therefore, no activity that adversely effects greater than 500 linear feet of the stream bed can be authorized under NWP 26. The threshold of 500 linear feet was chosen to maintain consistency within the NWP program (500 linear feet is the PCN threshold for NWPs 12 and 13). We believe this additional limitation will enhance the program's ability to ensure that projects with potentially greater than minimal impacts will not be authorized under the NWP.
    One commenter suggested that if wetlands are the driving force in lowering acreage limits, then lower acreage limits should only be set for impacts to wetlands and that it may be appropriate to raise the acreage limitations for projects that affect only ephemeral drainage areas. A few other commenters similarly recommended that the term "headwaters" include all naturally ephemeral streams regardless of their mean annual flow, in that they only exceed the average annual flow criteria because of high peak flows during the winter months, which artificially skew the average flow rates.
    We believe the existing definition for headwaters, as currently written in 33 CFR 330.2(b), adequately provides for the consideration of ephemeral tributary systems and accommodates this comment. In addition, headwaters whether vegetated or not provide important flood storage and water quality values to the overall aquatic system. If some ephemeral drainage areas are truly low value the districts can develop and issue regional general permits to expand coverage.
    Several commenters expressed the concern that NWP 26 reduces the program's protection of vernal pools and requested that the filling of vernal pools not be allowed under NWP 26.
    We believe the provisions for "discretionary authority" at both the division and district levels is adequate to accommodate the concerns for unique waters.
    One commenter stated that the NWP does not meet the regulatory requirements of the Natural Resources Conservation Service's Wetland Conservation Provisions (Swampbuster program) and continues the application of inconsistent standards on the communities regulated by the section 404 and Swampbuster programs.
    The Corps finds no conflicts between this NWP and programs administered by the Natural Resource Conservation Service and is working closely with the NRCS to provide consistency in our programs. Since the standards for the two programs are different, as are the program goals, some differences will exist. We are committed to minimizing the differences to the extent possible.
    One commenter stated that Corps districts differ in the methodologies used to calculate or determine where the "5 cubic feet per second" point is on waterways and that the methodology should be standardized. The commenter also recommended that there be a designated record keeping method and that the information be distributed or made available to the public.
    We believe that the definition of headwaters is adequate to establish consistency in determination methodologies. The determination is normally an analytical one; however, abbreviated or simplified estimating methods are considered appropriate on a regional basis. We do intend to establish standard reporting methods for data collection.
    One commenter felt that there is a need to clarify the definition of "single and complete project" for this NWP, suggesting that the permit should be applied differently (perhaps different thresholds) for projects that differ in purpose and size.
    The Corps has provided guidance to the field regarding the definition of "single and complete project" and believes it would be inappropriate and inconsistent to modify that guidance for this permit. NWP 26 is designed to address minor filling activities with less than minimal impacts. Neither the magnitude of the project, nor the level or public interest, nor the nature of the applicant, are relevant considerations to the decision on whether the project's adverse effects are minimal. Our definition of "single and complete" project does not allow piecemealing projects regardless of the type of project.
    One commenter requested a definition of special aquatic sites.
    The definition of "special aquatic sites" is provided in the section 404(b)(1) Guidelines (40 CFR 230.3(q-1)). No further definition is considered necessary for the purposes of this nationwide permit.
    A few commenters recommended that the Corps coordinate all applications with natural resources agencies, including applications for activities under one acre in size.
    The Corps believes that activities involving less than 1 acre of waters of the United States are generally minor in nature, and that multiple Federal agency review is not necessary. The Corps staff is well trained in the biological and environmental sciences and is fully qualified to assess potential impacts. The Corps experience with agency response to the existing PCN for 1-10 acres indicates that the natural resource agencies, which also have limited human resources, provide very few site specific substantive responses at the lower end of the 1-10 acre range. Thus, we would expect even fewer comments for projects with impacts below 1 acre. Also, the additional administrative workload associated with agency coordination would seriously impact the Corps ability to focus on projects with greater impact.
    A few commenters recommended the Corps strictly enforce the requirement for all NWP 26 applicants to submit a wetland delineation with the pre-discharge notification.
    The Corps strives to implement the program in as reasonable and flexible a manner as possible so as not to impose unnecessary burdens on members of the regulated public. We do require wetland delineations to the extent necessary to identify the resources being affected and the necessity for adequate mitigation when appropriate. The level of refinement of such wetland delineations is left to the discretion of the districts on a case-by-case basis. NWP 26 is reissued with modifications as discussed above.
Environmental Technical Services Co., 834 Castle Ridge Rd., Austin, TX 78746-5152
Revised December 15, 1996 URL= http://www.wetlands.com/coe/nwp2spn2.htm
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