27. Wetland and Riparian Restoration and Creation Activities: The Corps proposed to modify this NWP to allow projects to occur on any Federal lands. We also requested comments on whether to allow creation of wetlands and their subsequent reversion on reclaimed surface coal mined lands, to eliminate the 5 year window of reversion opportunity and allow the reversion to occur at any time in the future, to allow use of NWP 27 for any voluntary restoration/creation project, to include enhancement as an option, and to require a written agreement in all cases.
There were several commenters for and an equal number of commenters against the proposed modification of the permit to allow projects to occur on all Federal lands. One commenter felt that the proposed permit would grant more flexibility on Federal lands. Another commenter felt that the Corps should not require review and approval of an Operation and Maintenance Plan for projects on Federal lands or carried out by Federal agencies since the Corps does not review or approve such plans for projects on private lands. We believe that all Federal agencies should be encouraged to participate in wetland restoration and creation projects and have modified the permit for all Federal lands. Because the permit is limited to restoration, enhancement and creation activities and because authorizations for those projects occurring on Federal land will not provide the opportunity for reversion of the wetlands without a permit from the Corps, we concur that an Operations and Maintenance Plan approval is unnecessary and we have not included this requirement in the final permit.
Several commenters supported the consideration of expanding the permit to allow for the creation of wetlands and their subsequent reversion on reclaimed surface coal mined lands, provided the wetlands were voluntarily created under an OSM permit or an applicable state program permit. A few were opposed to this idea. Some stated that wetlands created due to hydrologic or topographic features of the landscape that may occur during reclamation should not be excluded. One commenter stated that the existence of a Surface Mining Control and Reclaimation Act (SMCRA) permit document and a certification that reclamation has been performed in accordance with permit requirements, should be sufficient to document the fact that the wetland construction was voluntary and non-mitigative. The Corps believes the potential for gaining several thousand acres of additional created wetlands through this provision warrants modification of the permit as outlined in the proposal. The permit wording has been changed to include wetlands voluntarily created under an OSM permit or applicable state program permit, with limitations not allowing its use for wetlands created as mitigation, nor to wetlands or waters that would be created naturally due to hydrologic or topographic features, nor to wetlands created for a mitigation bank. Reversion of such voluntary wetlands in the future is authorized by this NWP subject to the terms and conditions of this NWP.
A few comments were received regarding the consideration for eliminating the 5 year window of reversion opportunity and allowing the reversion to occur at any time in the future. Some commenters felt that the 5 year window of reversion opportunity should be retained, while others felt it should be removed. Some commented that removal of the 5 year limitation on the window would attract more conversion of abandoned coal mining sites to wetlands. The 5 year window for reversion of wetlands was adopted for written agreements that had limited terms, for wetland restoration and creation, between landowners and the Natural Resources Conservation Service (NRCS) and the U.S. Fish and Wildlife Service (FWS). For example, upon the expiration of such a 20 year agreement that landowner could revert the wetland back to the prior condition of that land. In most cases, the reversion would involve activities that require a permit from the Corps. We believe that in order to authorize these reversion activities by the NWP for an agreement that had expired, there needed to be a time limit after the agreement expired, to complete any reversion, or an IP would be necessary. The 1996 Farm Bill (Pub. L. 104-127) has included provisions for NRCS to document voluntary wetland restoration, enhancement, and creation activities that can be reverted to the prior condition at any time. In order to support and encourage such voluntary restoration, enhancement, and creation activities, we are authorizing those activities and the reversion of such wetlands to their prior condition by this NWP. While in these cases there will not be a 5 year reversion limit, since the agreement/documentation does not have a time limit, we are requiring a notice to the Corps with adequate documentation by NRCS of the prior condition.
Some commenters felt that the permit should be expanded to include any voluntary restoration or creation projects, to include private parties on private lands without signed agreements with either the NRCS or the FWS. A large number of commenters expressed opposition and an equally large number of commenters expressed support for allowing the permit to authorize projects on non-Federal public lands. Some commenters stated that activities on state fish and wildlife management areas, conducted by a state agency, should be included in this permit. One commenter felt that the Corps should grant state agencies a statewide exemption for managing wildlife populations. Some stated that they would support expanding use of this permit to voluntary restoration and creation activities by state and local government agencies provided those agencies demonstrate a long-term commitment to maintenance of the created or restored area. The Corps believes that including authorization for all creation, enhancement, and restoration activities on any lands (Federal, non-Federal public lands and private lands) would provide a less burdensome permit process and provide additional incentives for wetland creation, enhancement, and restoration projects. The nationwide permit has been modified to include authorization for public and private entities to conduct creation, enhancement, and restoration activities on any lands, but with no opportunity for reversion of those wetlands without a permit from the Corps, provided the permittee notifies the District Engineer in accordance with the "Notification" general condition. This NWP cannot be used to authorize the reversion of such wetlands.
With regard to whether or not to include enhancement as an option, one commenter stated that while most enhancement projects have little adverse effect to wetland functions, measures considered by some parties to be enhancement may at times be considered by others to have unacceptable negative effects on wetland functions and values. Another commenter stated that the inclusion of enhancement without technical criteria for project review may increase the risk of existing areas of wetland being converted to other wetland types. The existing NWP provided for enhancement of wetlands, but this was not clearly stated, by providing for "restoration of *** degraded non-tidal wetlands." Further, we believe that this NWP should authorize the enhancement of degraded wetlands. We agree, and do not intend, for this NWP to allow "enhancement" for the conversion of one wetland type to another. We have included enhancement projects but have limited enhancement under this NWP to improving degraded wetlands.
We concur with these comments and believe that to ensure no more than minimal impacts will result from the authorization, we cannot include enhancement within the scope of this NWP.
Several commenters felt that there was a need for a binding agreement in all cases, even where voluntary restoration is occurring under other Federal or state programs without a written agreement, while others felt that binding agreements were not necessary. One commenter stated that the written agreements do not have to be easements or contracts, which may dissuade many landowners from participating, that the agreements could be management agreements which become conditions to the permit. One commenter stated that for voluntary restoration and creation projects involving a Federal or state agency, an agreement should be required, and for a voluntary project that does not include Federal or state cost sharing or technical assistance, no agreement should be required provided hydrologic and vegetative baseline conditions are documented. We have concluded that the requirement for a binding agreement is not necessary in all cases. However, where the authorization provides opportunity for reversion of the created or restored wetland to its non-wetland state (i.e., in those cases involving private parties entering into contracts/agreements with, or documentation of prior condition by, the NRCS or FWS under special wetland programs or an OSM or applicable state program permit), then a binding agreement, documentation, or permit by NRCS, FWS, or OSM or applicable state agency, which clearly documents the prior condition, must be required. We have clarified in the NWP that reversion can only occur where such instruments, which clearly document the prior condition, are excepted. In all other cases, where the reversion opportunity is not included and a permit will be required for alteration of the restored, enhanced or created wetland or no binding agreement or documentation of the prior conditions will be required.
A few commenters stated that there was no need to document baseline conditions. Some commenters felt that in cases of purely voluntary efforts, there does not appear to be a compelling need for rigorous documentation of the baseline conditions. Others felt that this permit should include conditions that require documentation of existing use, hydrology and vegetation baseline conditions and allow reversion to previous use provided it does not exceed the previous conditions. Some felt that the format for documenting baseline conditions should be standardized, while others felt that the baseline condition could be documented in a predischarge notification, by way of a wetlands and waters of the United States delineation. Some commenters suggested that this permit should not authorize conversion to pre-restoration conditions where baseline conditions cannot be documented. The Corps believes it is only necessary to document prior (baseline) conditions for those cases where there would be an opportunity for reversion of the restored or created wetland to their original condition. Furthermore, for those cases where the opportunity to revert the wetland to a non-wetland status is available, documentation of the prior condition is required though NRCS, FWS or OSM programs. The Corps agrees that the prior condition must be documented in such cases. Consequently, prior conditions will be documented in those cases allowing reversion of wetland to non-wetlands. If that documentation cannot be provided at the time the reversion is requested, then an IP would be required for any reversion. In those cases where a permit from the Corps will be required for alteration of the created or restored wetland, we do not believe that the prior condition need be documented.
Some commenters stated that notification to all resource agencies should be included with this permit and further that the Corps should be required to notify all interested persons that could be affected by the restoration or creation activities. Others advocated limitations such as requiring notification with agency coordination for activities exceeding \1/3\ acre. Some commenters were afraid that restoration of wetlands to create waterfowl feeding areas could, as an example, adversely impact other species, which could be identified through agency coordination. The Corps believes, based on the changes and modifications discussed above and the scope of the authorized activities, that the activities and impacts authorized by this NWP will not only be minor in nature, but will result in positive contributions to the national goal of increasing wetland areas. We believe notifications to the agencies and all affected parties would be unnecessarily burdensome to all the parties and would be excessively duplicative governmental review without commensurate environmental benefits.
One commenter suggested that the permit not authorize discharges into open water. The Corps has not limited the permit to not apply to open water. To do so would excessively limit the use of the nationwide permit. It is anticipated that most activities authorized under this permit will be in channels, ditches and some small impacted streams. It is unlikely that fills in larger open water areas such as lakes or rivers would occur, particularly with the requirement that impacts be less than minimal.
Another asked that this preamble clarify the relationship between this NWP and the proposed new NWPs A for Moist Soil Management and NWP B for Food Security Act Minimal Effect Exemptions. This NWP is for the restoration, enhancement, or creation of wetlands while NWP 30 Moist Soil Management (proposed NWP A) is for management of wetlands and proposed NWP B is for wetland mitigation created for the loss of wetlands on agricultural lands.
Another commenter suggested clarification of the term "non-tidal" in the context of this permit, suggesting that term should only apply to naturally non-tidal wetlands and not to formerly tidal wetlands which have been diked and are now freshwater wetlands. The term tidal is defined in the Corps regulations at 33 CFR 328.3. Non-tidal refers to the existing conditions and would include former tidal areas that no longer meet the definition of tidal waters.
One commenter also suggested that this NWP apply to compensatory wetland mitigation for Federal aid transportation projects, and another recommended that this permit not apply to projects that are primarily stormwater treatment projects. Compensatory wetland mitigation activities required under Corps permits (such as those for FHWA projects) are normally authorized by the permit requiring the compensatory mitigation and this NWP would generally not apply. This NWP authorizes the restoration, enhancement, and creation of wetlands and does not address their need. If wetlands are created for stormwater treatment projects they would be authorized, if they meet the terms and conditions of this NWP. However, generally reversion of such wetlands would normally not be authorized by this NWP. NWP 27 is reissued with changes discussed above.
28. Modifications of Existing Marinas: The Corps proposed no changes to this NWP. One commenter stated that compliance with state permits or exemptions would be required where submerged state-owned lands were included in the modification of an existing facility. The intent is not to allow any additional slips or docks, thus additional water quality, navigational or safety impacts would not occur. We recognize the need for compliance with all existing applicable regulations. The issuance of this NWP would not obviate the need to obtain other Federal, state, or local authorizations required by law. NWP 28 is reissued without change.
29. Single-Family Housing NWP: The Corps proposed modifying the notification process for this nationwide permit to provide for resource agency coordination during the notification review process.
General: A large number of commenters opposed reissuance of NWP 29, expressing the opinion that the permit does not conform to the requirements for general permits, violates the Fish and Wildlife Coordination Act and is not in compliance with the National Environmental Policy Act. One commenter stated the belief that the permit is inconsistent with Florida statutes.
The Corps believes that NWP 29 is in compliance with all Federal laws and regulations. The permit is for actions that are similar in nature, both in size and type (less than \1/2\ acre, single family residences). With the general, regional, and specific conditions, the district's opportunity to review each case through the notification process, and the district's opportunity to exercise discretionary authority, we are confident that individual and cumulative adverse effects will not exceed minimal. Initial development and issuance of the permit along with this reissuance has been done in full compliance with 33 CFR part 330, which includes compliance with the Fish and Wildlife Coordination Act and NEPA. If the permit is in some way not consistent with state law, the state can deny its section 401 water quality certification. Furthermore, issuance of any Corps permit does not allow applicants to violate state, local or other Federal laws.
One commenter opposed the NWP because the program usually prohibited houses in wetlands before this NWP. Another commenter expressed opposition based on the belief that the issuance of the permit will increase property values and cause taxes to increase.
The Corps regulatory program has never prohibited fills for the construction of homes. IPs were required, however, which in some cases may have resulted in denials due to the availability of practicable alternatives available to the applicant. However, most projects were permitted following the review and analysis associated with the IP process for single family residences. Moreover, virtually every IP that was issued involved only on-site avoidance, minimization, and, in a few cases, compensatory mitigation, because offsite alternatives for this type of project are not generally viewed as practicable. The IP process continues to be required for proposals which exceed the \1/2\ acre or the minimal effects limitations of the permit or where the Corps district uses its discretionary authority. The effects of the permit on property values relative to state and local taxation programs are unknown to the Corps and is not an issue for consideration by the Corps regulatory program.
A couple of commenters expressed the opinion that the NWP was created only for political reasons in that there was no natural resource protection basis for its creation. The permit was initially issued and is being reissued to provide regulatory relief to small landowners for projects with minimal adverse effects on the aquatic environment. While an important goal of the Corps regulatory program is to protect the Nation's aquatic resources, providing timely and efficient decision-making and rendering fair and reasonable decisions for the applicant are also established goals of the program. We believe this permit is consistent with the goals of the regulatory program, including protection of the aquatic environment. Virtually every single family residence application for fill was, in the past, authorized as long as impacts on-site were minimized. The Corps assures this same level of protection of the aquatic environment through the NWP 29 PCN process.
Many commenters supported reissuance of NWP 29, but these commenters were split with regard to whether the notification of the actions should be provided to resource agencies prior to authorization. One commenter recommended that we carefully avoid unnecessary regulatory oversight with notification. The Corps has concluded that the notification procedures for this permit should include agency coordination. The permit has been reworded to effect this change.
Some commenters recommended that the permit be temporary because it attempts to assist small landowners who had unknowingly purchased wetlands or purchased the land prior to wetlands regulation. The commenters recommended we not reissue the permit after the year 2001, at which time the regulatory program will have been in place for almost 30 years. The Corps is reissuing for a period of 5 years and all NWPs will be reviewed for reissuance prior to their expiration in the year 2001.
Permit Limitations & Definitions: Several commenters suggested the modifying the limits of the permit and recommended the following: Limit fills to 1/4 and 1/10 of an acre; exclude use in open water areas; require mitigation for fills over 50 cubic yards; and, disallow use for fills in mitigation sites. One commenter recommended the permit be limited to a specific number of 1/2 acre authorizations allowed per wetland. Another suggested establishing limits based on ecosystem rather than ownership. Two commenters recommended that we prohibit discharges within 100 feet of streams supporting anadromous fish. One commenter recommended excluding certain regional waters. One commenter stated that it was a major oversight to allow this NWP to apply to non- tidal wetlands adjacent to the ocean. One commenter commented that the permit should be limited to authorization of primary residences only and another recommended that mitigation be required as a condition of the permit.
After careful consideration of all the comments, and based on our experience with NWP 29 over the past year, the Corps has determined that the acreage limitation should be retained at 1/2 acre, a limit should be imposed to require a "no fill" buffer between the fill and any free flowing stream, river, or other flowing waterbody and/or the normal spring high tide in tidal areas. Data collected on the use of NWP 29 over the last year has shown that the average impact per NWP 29 across the nation was approximately 0.19 acres. The data also shows that during none of the quarters did the average impact acreage go above 0.25 acres. Additionally, it should be noted that the average acreage requested was only 0.31. For all of Fiscal year 1996, the Corps authorized 333 projects for a total of 62 acres of fill nationwide. The total acreage of fill requested by applicants was 101 acres, thus the Corps review reduced the requested impacts by 40%. Furthermore, mitigation may be required for higher value wetlands. Of course, as with all NWPs, the Corps districts will ensure that the fill is the minimum needed on a case-by-case basis. If additional levels of protection are necessary, Corps District and Division Engineers will add regional conditions as they did in several districts in 1995. As with other NWPs, such regional conditions could revoke NWP 29 in certain high value aquatic areas or add region specific limitations on the use of NWP 29.
One commenter requested a clearer definition of "non-tidal" to ensure adequate protection of marine and estuarine habitats. The commenter pointed out that the definition differs between the Rivers and Harbors Act (mean high water) and the Clean Water Act (Spring high tides or other high tides with periodic frequency), and recommended the adoption of the CWA definition.
The definition of tidal waters can be found in 33 CFR 328.3(f) and is defined as those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun (the high tide line). Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects. The high tide line includes the normal spring high tides. The limits of Corps jurisdiction in non-tidal waters of the United States can be found in 33 CFR 328.4(c). This regulation does not mean that wetlands adjacent to tidal wetlands are also tidal wetlands, but rather that in coastal areas, Corps jurisdiction extends to the limits of these "non-tidal wetlands" that are adjacent to tidal wetlands. Consequently, this NWP is applicable to wetlands that are adjacent to wetlands subject to spring high tides. However, divisions can, as some did in 1995, provide regional conditions to exclude high value wetlands adjacent to tidal waters.
Several commenters requested either elimination or a more detailed definition of the term "attendant features". They suggested that swimming pools, tennis courts, barns, small businesses and septic fields should not be allowed. The purpose of this permit is to reduce the regulatory burden associated with the construction of single-family homes while maintaining environmental protection. When building single-family homes we recognize that, besides the foundation of the house itself, there are activities associated with a house that are considered necessary, customary, or normal to home sites. We believe these "attendant features" should normally be authorized with the house. We would not accomplish the purpose of this permit if we were to authorize the house only and process an IP for the attendant features. Attendant features, for the purpose of this permit, include features that are reasonable, necessary appurtenances constructed in conjunction with single-family housing activities. Examples include a garage, driveway, storage shed, septic field, and yard. Examples of inappropriate attendant features not covered by this permit include a barn, which may be covered by NWP 40, or a small business. Such features would not be directly related to a single-family home. While we believe that a yard is an appropriate attendant feature of a single-family home, we have not identified a size that will work for all NWP 29s. Therefore, we will work with the applicant to ensure that acceptable, but not excessive, yards are authorized. This NWP only authorizes activities from the perspective of the Corps regulatory authorities, other Federal, state, and local permits, approval, or authorizations may also be required. The permittee would be responsible for obtaining all necessary authorizations, including building permits, prior to placing a septic system, yard, or any other fills in wetlands. Additionally, water quality is a concern addressed by applicable state agencies as well as the Corps. It is the permittee's responsibility to obtain any necessary water quality approvals or authorizations prior to the discharge of fill. Furthermore, while properly designed, constructed, and operated septic systems can be placed on fill in many wetlands, the septic system must be approved by the appropriate state or local agency. The Corps has determined the extent of the attendant features to be applied on a nationwide basis. If an individual district concludes that a particular feature should not be authorized under this permit, then the Division Engineer must regionally condition the permit to exclude the feature. Furthermore, additional restrictions may be placed by states in 401 water quality certification or CZM consistency determination. On a case-by-case basis, where a particular feature is not appropriate at a specific site, the District Engineer may condition the NWP or require an individual permit.
As a Corps district evaluates each request under NWP 29, they will consider the proposed home and attendant features in the context of the functions and values of the waters of the United States as well as local zoning and regulatory set-backs and requirements. If uplands are available on the applicant's property to reasonably accommodate the home and attendant features, after considering property line set-backs and other requirements, the Corps will not authorize the project under NWP 29 and instruct the applicant to apply for an IP. If fill for the home and for attendant features is needed, the Corps will determine the amount of fill based on the aquatic functions and values to be impacted. Specifically, attendant features such as a yard, tennis court, or swimming pool may be limited, or not authorized, if the project is located in high value wetlands. The Corps will generally require septic systems to be located as far as possible from open waters, and will otherwise attempt to ensure that septic systems will not adversely affect the quality of surface waters.
Effects & Cumulative Effects: One commenter expressed concerns for adverse effects on floodplains resulting from issuance of the permit. Two commenters expressed concern for water quality impacts due to the typical location of NWP 29 activities within watersheds. Several commenters expressed the belief that this permit encourages housing development in wetlands, and several expressed general concerns for the cumulative impacts.
Because the activities associated with the use of this permit could be located within the floodplain or a waterbody, there is potential for increased flooding and reduced flow. The notification process allows the district to evaluate the proposed impacts, including potential flooding impacts, compare them to existing impacts within the wetland system or watershed, and determine if the project has more than minimal individual or cumulative adverse effects. The district will use its discretionary authority to place conditions on a proposed activity to avoid or minimize these potential impacts. If the activity is determined to have more than minimal adverse effects, the district will require mitigation or an individual permit. The district and division offices may identify specific geographic areas, such as a subdivision, or a particular aquatic system, where there may be concerns regarding cumulative impacts to a watershed. If such impacts are identified, the division will revoke this NWP in specific geographic areas or develop regional conditions that apply to that specific area. Many districts and divisions have already revoked NWPs, including NWP 29, or imposed such regional conditions in many geographic areas or wetland or water types.
Coordination: One commenter asked that we require Endangered Species Act and Historic Preservation Act coordination prior to authorization under this permit. One commenter requested that we require compliance with Federal, state, and local regulations. The Corps believes that the provisions of Nationwide Permit Conditions 11 and 12, which address endangered species and historic properties, as well as the procedures in 33 CFR part 330, are adequate for guarding against unacceptable impacts in these areas of concern. Moreover, by issuing a verification letter the Corps has made a determination of "no affect" on endangered species and "no adverse affect" on historic properties. The issuance of a Federal permit does not obviate the need for applicants to comply with all other Federal, state and local laws and regulations, and it is incumbent upon the applicant to comply with all applicable requirements.
Subdivisions: One commenter suggested applying the current 1/2 acre limitation for subdivisions created on or after November 22, 1991, to all subdivisions regardless of the date they were created. One commenter requested a more elaborate discussion on what constitutes a subdivision. Another recommended the subdivision date be 1977 when the scope of the Corps regulatory jurisdiction was expanded and 404(e) was first enacted, or 1984 when many property owners were made aware of the need to obtain permits. Another commenter suggested limiting the permit to those persons who purchased their properties prior to enactment of Section 404 of the Clean Water Act. One commenter asked what constitutes "creation" of a subdivision, is it the date the subdivision was first drawn on a piece of paper or the date it was approved by a planning jurisdiction? One commenter requested the addition of a subdivision rule (interpreted to mean a more detailed discussion of subdivisions within the permit).
November 22, 1991, is the date on which the current NWP program regulations, including issuance of, reissuance of and modifications to the previous NWPs were published in the Federal Register. It was in these regulations that the terms surrounding subdivisions for the purpose of NWP 26 were outlined and awareness of the subdivision clause was heightened. With few exceptions, we believe this date would be fair to all parties. We do not believe that the November 22, 1991, date penalizes any one group of individuals and that is the date which has been in use since issuance of the nationwide permit on September 25, 1995. The subdivision date refers to when a parcel was subdivided into smaller parcels, not when the subdivided smaller parcels are sold. Therefore, individual parcel owners are not penalized based on when they purchased property. The term "creation" refers to the date the tract of land, after being subdivided, is officially approved by the appropriate state or local governing agency. The conceptual subdivision of land is not acceptable.
One commenter recommended that the permit be conditioned to not allow for multiple ownerships by family members to circumvent the subdivision clause. We believe that the conditions limiting the use of this permit to single-family residences, personal residence, once per parcel, and not more than \1/2\ acre total per subdivision created after November 22, 1991, are adequate conditions to limit use of the permit and ensure compliance with the "minimal effects" criteria for general permits. Multiple ownership by the same family within a subdivision created after November 22, 1991, would not allow for any greater fill than single ownership of the subdivision, in that the total aggregate fill could not exceed \1/2\ acre. NWP 29 is reissued with the modifications discussed above.
30. Moist Soil Management for Wildlife: This NWP was proposed by the Corps as a new nationwide permit (proposed new nationwide permit A) to authorize activities necessary to manage, construct, and/or maintain habitat and feeding areas for wildlife on Federally-owned or managed and state-owned or managed property.
Many commenters supported the NWP as proposed. Several of the commenters felt that the NWP should include activities on privately-owned lands managed by Federal agencies. These are agencies with expertise in the subject area and are responsible for managing the lands in concert with the objectives of the Federal wetlands programs such as NRCS and FWS or state plans. A few commenters stated that wetland areas under permanent easement and deed restrictions should be covered by the NWP. One commenter stated that privately-owned lands should not be included. This permit was proposed by the Corps specifically for application to Federal and state resource agency activities. It is intended that the permit apply to managed lands as well as lands owned by these Federal and state agencies. The techniques listed in the permit are not "all inclusive," but meant to be representative of the types of activities included. The list has not been expanded for the sake of brevity.
A few commenters asserted that discing or plowing are activities that are not, and should not be, subject to regulation. Mowing and bush hogging are two examples of vegetation removal, which if done so as not to substantially disturb the root system, are not regulated under section 404. (See 33 CFR 323.2(d)(2)(I)). While discing and plowing activities are exempt from regulation pursuant to CWA section 404(f)(1) when conducted in conjunction with ongoing farming activities, such activities are not exempt for the purposes of wildlife management. Thus, this permit specifically authorizes these activities.
A few commenters were concerned about implementing adequate review measures and suggested that the Corps include a Federal and state wildlife agency PCN to ensure that any conversion of wetland types would be minimal or an IP would be required. Because these agencies have extensive expertise in wetland management and are responsible for managing the lands in concert with the objectives of Federal and state wetlands programs, we believe the PCN processes would result in unnecessary and duplicative governmental review. Furthermore, we have added an additional restriction to the NWP to not authorize converting wetlands to open waterbodies. Proposed Nationwide Permit A is issued as proposed and discussed above as NWP 30.
31. Maintenance of Existing Flood Control Projects. General: This NWP was proposed by the Corps as a new nationwide permit (proposed new nationwide permit D) to authorize the excavation and removal of accumulated sediment and associated vegetation for maintenance of existing flood control facilities. The majority of those commenting on this proposed NWP were in support of its issuance. Most viewed this permit as one that would greatly improve the local sponsor's ability to perform critical flood control maintenance activities. Several commenters felt that, especially for some projects, using this NWP would violate 404(e) because maintenance work would have more than minimal adverse effects on fish and wildlife resources. Their concern was for use of the permit for older flood control projects now supporting fish and wildlife habitat. Many of these commenters felt that maintenance dredging in some areas could result in perpetuating past mistakes and, for older projects, it may be impossible to determine the original dimensions. Many commenters felt that flood control channels that develop and support wildlife need public review and agency comment and a PCN requirement will not substitute for public review as required by the Clean Water Act.
We believe that with the limitations and conditions included within the final permit, the NWP will comply with the "minimal effects" criteria for general permits. Safeguards for the protection of valuable habitat have been included within the permit, particularly in the procedure for the District Engineer (DE) to determine the maintenance baseline and the provisions allowing for the DE to require mitigation.
Recommendation for Expanding the Permit's Scope: Numerous comments recommended expanding the scope of this NWP. Some of the recommended inclusions were state and city flood control maintenance activities; maintenance of stormwater management facilities; water conservation facilities; retention/detention basins and channels constructed by municipalities, watershed management organizations, and watershed districts (in compliance with surface water management practices required by the state); any Federal, state, or locally funded flood control project; irrigation facilities; any facility where an NEPA document has been prepared; drainage system inlets and outlets; manmade channels or structural projects developed under authorization of Federal or state governments; and any facility that was constructed through excavation prior to the Excavation Rule. One commenter stated that any "improved channel" or detention facility constructed before July 1975 or after July 1975 if it met exemption from 404 regulations or fell under 404 regulations and was authorized by the Corps should qualify for this NWP.
Many of the facilities included in the above recommendations would be included in the final wording, which authorizes maintenance of existing flood control facilities previously authorized by the Corps regulatory program or constructed by the Corps and transferred to a local sponsor for operation and maintenance. However, this NWP was proposed for maintenance of "flood control" facilities. In order to expand the scope of this NWP to include other types of facilities such as irrigation and drainage projects, we would need to propose such a change for public comment and opportunities for a public hearing. Therefore, we are not expanding the scope of this NWP to include other types of facilities. However, we will seek public comment regarding other types of activities that should be authorized by NWP and, if appropriate, we would propose an NWP for such facilities.
Two commenters suggested that this NWP include construction of cofferdams and access roads necessary to conduct maintenance of the flood control facilities rather than require separate notification under NWP 33. We believe this permit should be limited to maintenance activities of existing flood control facilities and that temporary construction activities would more appropriately be authorized by IPs or NWP 33, which has a specific notification requirement for a restoration plan.
Recommendation for Limiting the Permit's Scope: A few commenters recommended restricting this NWP to only on-going flood control projects. One of these commenters specifically suggested that the NWP should be worded to state that for a project to qualify for this NWP, it must have been maintained within the past 3 years unless otherwise stated in the original permit. One commenter suggested using the safeguards contained in NWP 3--that this NWP applies only to the repair, rehabilitation, or replacement of currently serviceable water management projects authorized under Federal, state, or local governments, provided the environmental effects resulting from such repair, rehabilitation, or replacement are minimal. One commenter suggested a 5 acre threshold for this NWP, and another felt that any threshold would be arbitrary and instead recommended that this determination be made based on the quality of the existing aquatic resource and how the site will be impacted by the proposed excavation activity.
We included provisions within the NWP to limit maintenance activities to an established maintenance baseline, to be determined by the DE. The process prescribed for determining the baseline includes consideration of the facility's maintenance history, and other factors designed to identify the purpose and need for the proposed maintenance, and that the proposed maintenance activity is not excessive to achieve that need. We believe that specific threshold limits would be inappropriate and unnecessarily restrict projects that should qualify for this NWP.
Pre-Construction Notification: Many commenters were opposed to having any preconstruction notification requirements. They felt that it would be duplicating the efforts of other entities for the Corps to review flood control projects that adhere to the original schedule for maintaining the facility. One commenter added that requiring a PCN would be contrary to the Corps goals to avoid unnecessary regulatory controls and reduce unnecessary paperwork and delays for permittees. Several commenters were concerned that additional coordination could pose a threat to public health and safety if flood control districts were impeded in any way to maintaining a facility. Two commenters specifically requested that there be no PCN requirement for the facilities designed and constructed to comply with local or state water quantity and/or quality control requirements when the depth and area of dredging is in accordance with the originally approved design plans. Another commenter suggested that no PCN be required for emergency maintenance performed as a result of a local, state or Federally declared disaster.
Numerous commenters provided recommendations for thresholds of when to require a PCN, ranging from 100 to 100,000 cubic yards or at a 1 acre threshold. One commenter suggested that a 25 cubic yards limit be used in streams supporting anadromous fish. Another threshold to require a PCN was whenever previous maintenance activities occurred more than 5 years earlier. One commenter suggested using 50 cubic yards as the PCN threshold stating that under 50 cubic yards the applicant could use NWP 18/19. Another commenter suggested 10 acres or 1 acre/mile of channel/year. Another commenter recommended that the impacted area threshold be 10 acres minimum for each unlined basin and 25 acres minimum for each soft bottom channel reach before a PCN was required. One commenter interpreted the preamble to imply that only unlined basins and channels would require a PCN and that the regulation itself should reiterate that requirement.
Following the DE's determination of the maintenance baseline, which requires a notice to the Corps, a PCN is required for maintenance activities. We believe that there is a need for notification for maintenance activities to ensure compliance with the permit conditions and to monitor maintenance of the flood control facility. The PCN is required prior to each maintenance activity or a maintenance plan can be submitted just not to exceed 5 years. The Corps prefers the submittal of a 5 year maintenance plan. This is a new NWP. The Corps will monitor this NWP. If appropriate, the Corps would consider proposing to reduce or eliminate the PCN requirement. Furthermore, if the project is effectively abandoned due to lack of proper maintenance, a new determination of a maintenance baseline would be required before this NWP could be used for subsequent maintenance.
Recommendations for Permit Conditions: Several commenters recommended that this NWP be conditioned to preclude maintenance work that would result in wetland and/or riparian habitat impacts. One commenter suggested the following wording be added to both the preamble and the permit itself: "In circumstances where the DE determines that the channel proposed for maintenance provides other significant social or ecological functions and values that may be jeopardized, the Corps will exercise its discretionary authority to require an individual permit." One commenter suggested that the following conditions be added to this NWP: (1) All excavation must have been previously addressed in the project's original EIS; (2) the excavation is still necessary to obtain the project's original goals; and (3) the benefit of attaining those project goals still justify the cost of the environmental impacts that result from the removal at this time (as opposed to the time when the original EIS was completed).
We believe the objectives of these recommendations are essentially achieved through the application of the final wording of the permit, the requirement to establish a maintenance baseline, the nationwide permit general and section 404 only conditions, and the opportunity for the DE to exercise discretionary authority and/or require mitigation for resource impacts.
One commenter requested that the Corps delete the requirement for an applicant to specify the disposal site. The reason for this is that, in many cases, the disposal site is not known until after the bids for the project are submitted, which may occur after the NWP has been verified. This commenter suggested that the requirement be replaced by a commitment from the applicant to dispose of material at an upland site. Other commenters recommended that the NWP be expanded to allow the disposal material in jurisdictional areas where the applicant can show a beneficial use for its disposal. Another commenter recommended that the location of the disposal site be identified only if it is within the Corps jurisdiction. One commenter suggested that the NWP specifically state that this NWP does not authorize side casting excavated material into waters of the United States, agitation dredging, or where dredged material testing is required.
The NWP does not require that the disposal site be specified in advance, however, it does require that dredged material to be placed in upland areas or currently authorized disposal areas in waters of the United States. Use of the disposal site must also be in compliance with all Federal, state and local requirements, as must every aspect of the project, or the NWP is not valid.
One commenter added that should such work be allowed, there should be a requirement to mitigate for unavoidable impacts to fish and wildlife resources. Another commenter was concerned that mitigation would be required for projects, especially for those constructed prior to the enactment of the Clean Water Act in 1972, causing an undue financial burden on applicants.
The final NWP includes provisions for the DE to determine the need for mitigation when determining the maintenance baseline. In determining the need for mitigation, the District Engineer will consider the following factors: any original mitigation required, the current environmental setting and any impacts of the maintenance project that were not mitigated in the original construction. The District Engineer will not delay needed maintenance for completion of any required mitigation, provided the DE and the applicant establish a schedule for the identification, approval, development, construction and completion of such required mitigation.
One commenter requested that they not be required to submit a new wetland delineation every five years because of the significant cost this would cause for local agencies. The Corps general policy is that wetland delineations are verified for no more than 5 years. In those cases where wetland delineations are required, the delineation must have been verified within the 5 year period. Once a delineation has been completed and verified, subsequent updates and verifications should, in most cases, be substantially less costly and time consuming. A wetland delineation would be required to establish the maintenance baseline. However, for normal maintenance, a wetland delineation would not generally be required, but may be on a case-by-case basis.
Time Limits and Maintenance Baseline: Many commenters requested that no time limits be set for maintenance intervals, only demonstration of need. One commenter pointed out that in some cases it may take a flood event to know that a facility needs maintenance, and little would be gained by disqualifying projects on the basis of long maintenance intervals. Another commenter added that it would be unfair to penalize older facilities that have received little maintenance over the years. A few commenters suggested that the baseline should be the design conditions with no set time limits for maintenance cycles, since such a time limit would be arbitrary and would not relate to the ecological value of a local project site. One commenter recommended that the baseline condition for measurement of impacts should be the "as-built" or newly constructed condition.
We concur that no time limits should be set for maintenance intervals and that it would be unfair to penalize older facilities. We have included design conditions and the "as-built" conditions as considerations in establishing the maintenance baseline. Details on the procedure and considerations for establishing the maintenance baseline are included within the NWP description presented later in this document under the "Nationwide Permits and Conditions" section. However, maintenance work to maintain the approved flood control capacity must be accomplished. If the project or the design capacity is effectively abandoned or reduced due to lack of proper maintenance, a new determination of a maintenance baseline would be required.
Regionalization: Two commenters suggested that maintenance of existing flood control projects should be exempted from regulation. A few commenters suggested replacing this NWP with each District developing river specific regional permits. One commenter suggested that this NWP would be more appropriate as a programmatic general permit because it would result in the same streamlining of the process while allowing for a public agency to administer a jurisdiction-wide channel maintenance program under pre-determined criteria for that state.
The activities authorized under this permit are not exempted under the Clean Water Act and are therefore regulated under section 404 of the Clean Water Act. We believe that it is appropriate to authorize the maintenance activities specified in the final NWP; however, districts can and are encouraged to identify appropriate regional conditions to ensure minimal impacts. We also agree that programmatic general permits could be a viable alternative in those cases where another program meets the objectives and requirements of the Corps regulatory program.
Endangered Species Act: A few commenters raised a concern over possible impacts to Federally threatened and endangered species and recommended that sufficient evaluation with the federal agencies be completed before allowing a project to qualify for this NWP.
We believe the nationwide general permit condition addressing the avoidance of impacts to endangered species and compliance with the Endangered Species act is sufficient for protecting against such impacts. Furthermore, by verifying an activity is authorized under NWP 31, the Corps district will have made a "no affect" determination based on review of available data. If a project may affect an individual species, the Corps will initiate consultation under Sec. 330.4(f). Furthermore, endangered species, if not already addressed in a Corps permit or Corps constructed project, would be addressed as a part of the determination of the maintenance baseline.
Definitions and Clarifications: A few commenters suggested that the title of this NWP be changed to "Maintenance of Existing Flood Control Facilities" rather than "Projects" to avoid any implications that it does not apply to existing or locally funded "facilities." One commenter suggested that the word "previously" be deleted from the text because "previously" raises the question of whether or not the NWP applies to flood control facilities authorized and constructed subsequent to the effective date of the NWP, or only to those existing "previously". One commenter suggested that "previously authorized" be changed to "initially constructed" since the depths and configurations often have changed from the basic authorization.
We have changed the word "projects" to "facilities" as suggested. The term "previously" has been retained. We intend to include maintenance activities associated with flood control facilities in future Corps standard individual permits. We have modified the NWP to require the DE to consider the difference between the project authorized and actually constructed in his determination of the maintenance baseline.
One commenter felt that the term "flood control" project was too vague and needed to be clarified as to what could be considered a flood control project. We believe the term is sufficiently defined within the language of the final NWP.
Several commenters requested that clarifying language be added to the preamble stating that areas that were constructed in uplands are outside the purview of the Corps regulatory process provided they are maintained. Corps regulations for implementation of the regulatory program state that the Corps does not normally regulate artificial water bodies constructed in dry land, but reserves the right on a case-by-case basis to determine that a particular waterbody within this category is within the purview of our regulatory authorities. More detail on these provisions can be found at 33 CFR 328.3 and in the preamble to those regulations in 51 FR 41217. We will continue to monitor this need and provide additional clarification as necessary.
A few commenters requested that "natural" channels be defined to avoid misinterpretation. One commenter further suggested that "natural" be defined as a watercourse that has not been modified in order to increase its hydraulic capacity or simply a previously unaltered water course. Another commenter suggested that the wording of this NWP be revised to state that "this NWP authorizes the removal of sediment and associated vegetation from flood control facilities, including natural channels. We believe the text of the final NWP, which reads: "Only constructed channels within stretches of natural rivers that have been previously authorized as part of a flood control facility could be authorized for maintenance under this NWP," sufficiently clarifies those areas which can be maintained under this NWP.
One commenter felt the term "maintenance" is vague and that specific types of maintenance activities allowed should be fully described and limited to that which does not impact the environment and water quality. We believe the requirement for establishing a maintenance baseline satisfies this concern. It will establish the limits of the maintenance on a case-by-case basis.
32. Completed Enforcement Actions: The Corps proposed several changes to the NWP. We proposed expanding the scope beyond judicial enforcement actions to include agreements resulting from Corps negotiated settlements. We also proposed clarification that compliance with the underlying judicial or administrative decision or agreement is a condition of the NWP itself, and we proposed that EPA administrative settlement agreements could also be authorized by this permit.
Several commenters favored the addition of Corps non-judicial settlements to the scope of activities authorized by this permit. One commenter specifically stated that it would eliminate unproductive duplication of the Corps evaluation efforts. Another added that it would both streamline the process and expedite restoration work. A few commenters added that little is served by going through an individual permit process once the Corps is satisfied with restoration and mitigation being offered or required to resolve a violation. One commenter saw the benefit of enhanced negotiation with the Corps without judicial actions. A few commenters supported extending NWP 32 coverage to activities authorized under EPA administrative settlements as well as Corps settlements. Conversely, numerous commenters recommended that this NWP not be expanded or reissued. Many commenters were only opposed to the expansion of the NWP. Some believed that by including Corps-negotiated settlement agreements permit approvals would be made behind closed doors without the opportunity for public or resource agency comment and therefore would preclude the due process of public participation. One commenter was concerned that it would eliminate the opportunity for section 401 water quality certification for after-the-fact permit (ATF) activities that may have violated state water quality standards. The Corps will not forego its normal and required enforcement procedures at 33 CFR part 326 and 33 CFR 330.6(d)(2) and 330.6(e) prior to reaching a settlement agreement. The Corps has concluded that including agreements resulting from Corps negotiated settlements and EPA administrative settlement agreements would result in substantial work load reductions and eliminate duplicative efforts without any loss in resource protection. Corps settlement agreements receive thorough evaluation and are normally coordinated with the resource agencies. In those cases where the state does not certify this permit, the applicant will be required to obtain individual section 401 certification prior to the Corps final approval of the resolution.
Several commenters suggested ways to further expand this NWP and one commenter opposed any threshold restriction, provided the net environmental benefit was positive. Another commenter believed the NWP should be expanded to permit future impacts beyond those only for the purpose of mitigation, restoration, or environmental benefit. Some believed the thresholds of five acres of non-tidal or one acre of tidal wetlands were arbitrary and too high. Others believed that authorizing enforcement actions by NWP would violate the "similar in nature" and "minimal impact" standard of 404(e) of the Clean Water Act. One commenter suggested that unless the Corps settlement involved complete restoration, it would be impossible to determine that the activities to be authorized under this NWP would be minimal impacts or to assess the cumulative impacts. The Corps has concluded that the existing thresholds and scope of the permit cannot be expanded because we could not ensure compliance with the "minimal effects" threshold for general permits. We have also concluded that the five acre and one acre thresholds are adequate for meeting the "minimal effects" criteria. The Corps believes that complete restoration will be achieved, except where full restoration is either not practicable or would result in unnecessary adverse environmental effects. Therefore, we do not believe greater than "minimal adverse effects" would result from this permit.
One commenter believed that the automatic revocation of the NWP, in case the permittee failed to comply with the settlement agreement or judicial decree, was too harsh and that they should be allowed to follow the normal revocation process. We do not believe this condition is too harsh given that the permittee, who violated the CWA and reached a settlement agreement with the government, once again violated the CWA. We believe that those individuals should be, once again, subject to enforcement/compliance regulations.
One commenter believed NWP 32 encourages citizens to break the law and noted there is no restoration for the impacts created by the violation. A number of commenters opposed this NWP because there were no limits as to potential impacts. One commenter stated this NWP would eliminate the 404(b)(1) needs and alternative analysis for projects up to five-acres. As stated in the proposed NWP, thresholds were established for the maximum size of the impact area and whenever possible, restoration of these areas will be required to minimize the impacts as appropriate and practicable. This NWP is mostly intended for those cases where the enforcement resolution has been reached and an ATF permit process is required. Although a 404(b)(1) off-site alternatives analysis is not required for an NWP authorization, on-site avoidance is required. Further, off-site alternatives may be considered, where appropriate, during the enforcement resolution prior to processing the ATF or this NWP authorization. NWP 32 is reissued with the changes discussed above.
33. Temporary Construction, Access and Dewatering: The Corps proposed adding the provision from recent guidance stating that this NWP could be used for construction activities not subject to either the Corps or U.S. Coast Guard regulations. We also proposed allowing the use of on-site dredged material for temporary fills, and deleting the last sentence of the permit, which stated that the permit did not authorize activities associated with mining activities or construction of marina basins which had not been authorized by the Corps.
The several comments received on this permit were nearly equally split between support for and position to reissue the permit. Many comments expressed concern about adverse impacts from structures and fill remaining in place without monitoring or enforcement. The Corps designed this permit to provide a shortened administrative process for construction-required activities that were not anticipated when the main project was authorized by another Corps permit (usually an individual permit) or by a Coast Guard permit. We have added authorization of activities where neither a Corps nor a Coast Guard permit is required but a temporary impact to waters of the United States occurs in association with work in the immediate area for an otherwise upland project. Structures or fills that remain in place cannot be permitted by this NWP. The NWP now clarifies that all activities authorized by this NWP must be removed or authorized by another permit.
One comment recommended that all fills and restoration be completed within 90 days of project completion. We have clarified the requirements of PCN (General Condition 13) such that the restoration plan will include a timetable for removal of the temporary structures and fills.
One comment concerned the interpretation of "or for other construction activities not subject to the Corps or U.S. Coast Guard regulations" as including maintenance which the commenter states is not regulated under 33 CFR 324.4(a)(2). The Corps NWP 33 is clear in its intent to authorize only activities that support some primary activity that has been permitted or does not need a permit. The exemption referenced authorizes maintenance and reconstruction of facilities, which means that it exempts only that part of the facility that was constructed in jurisdictional waters. NWP 33 authorizes access or construction techniques to perform the exempt reconstruction if that access or technique requires structures or fill outside the footprint of the facility.
One commenter recommended a dredging limitation the same as that required for NWP 19. The Corps believes that this is too restrictive for a temporary impact and would excessively lessen the use of this NWP.
A few commenters expressed concern for special aquatic sites with suggestions that: the permit require the impacted wetland be restored in 2 years, the impacted site be self-mitigating, the Corps ensure that wetland impacts can be reversed, and a maximum impact of \1/2\ acre. We believe that all of these restrictions are not necessary. Through the PCN process the Corps will ensure that impacts are minimized to the maximum extent practicable.
Another comment expressed concern regarding downstream flooding. The NWP states that near normal downstream flows must be maintained and flooding minimized. Section 404-only Condition 6 also prohibits altering expected high flows.
One commenter suggested limiting restoration to special aquatic sites. The Corps has not adopted this recommendation because temporary structural fills in other waters of the United States, which are not special aquatic sites, also must be restored under this NWP. Another commenter suggested that there no be a notification for cofferdams and access ramps under some unspecified size. Another asked for the PCN to start at 100 cubic yards or 0.1 of an acre impact. We believe this is inappropriate as another permit has been issued for the main project and cumulative impacts need to be considered, including potential alteration of the purpose of the project. Also, even small cofferdams may have more than minimal impacts depending upon the resources of the waterbody. Construction activities for projects not requiring a permit may be authorized by non-notification NWPs if they apply.
Two other commenters recommended that signs be erected to warn boaters of construction activities and that this NWP not be used for river boat casino construction. These are very localized issues that can be dealt with through regional conditioning by the districts and divisions. If the Corps is aware of high recreation use, placing warning signs may be an appropriate condition for some specific NWP authorizations. NWP 33 is reissued with the proposed changes.
34. Cranberry Production Activities: The Corps proposed no changes to this NWP. Several commenters supported reissuance, but the great majority of those commenting on the permit requested revoking this NWP, based principally on perceived environmental impacts and because, according to the commenters, most cranberry producing states have denied water quality certification. The Corps realizes that decreases of habitat value and water quality functions may occur in the conversion; however, the NWP requires mitigation to ensure no net loss of wetlands by acreage. Additionally, any district may regionally condition the NWP to restrict its use in particularly valuable wetlands. Some states, as noted by several commenters, have denied 401 water quality certification to ensure that the state can regulate impacts of local concern. Washington State, for example, initially denied certification for all actions under this NWP. Three years ago the state issued certification except for forested wetlands and areas that had never been in cranberry production historically. Denial by many states does not imply that a NWP is causing more than minimal adverse effects, but simply that the state may have concerns regarding water quality.
A few commenters requested removing the no net loss requirement for purposes of water quality and more efficient harvesting through the construction of dikes. The Corps believes that the mitigation required is necessary to ensure that no more than minimal adverse effects will occur. The Corps believes that extensive construction of dikes would likely result in more than minimal adverse effects, and thus requires evaluation through the individual permit process.
One commenter stated that upland alternatives should be selected. Although it has been demonstrated that cranberries can be cultivated in former uplands (cranberry bogs are wetlands because of the hydrology that must be maintained), this is technically difficult and typically would not be practicable. This is particularly true recognizing that many operators are small family businesses.
One commenting organization stated that Section 401 did not apply to cranberry bog construction because it is a non-point pollution source. The activities regulated by the Corps under NWP 34 involve discharges of dredged or fill material associated with expansion, enhancement or modification of the cranberry bogs. These discharges of dredged or fill material are the same as any other fill pad or land leveling operation. These types of activities are point source discharges and a 401 water quality certification is required.
Two commenters recommended adding taro production to this NWP. Taro is grown in Hawaii and other South Pacific islands. We believe this is a region-specific problem and the Corps Honolulu District has the option of developing a regional general permit, if appropriate.
In order to verify compliance with the terms of this NWP, we have added the requirement to provide a wetland delineation with the notification. NWP 34 is reissued with the modifications described above.
35. Maintenance Dredging of Existing Basins: The Corps proposed no changes to this NWP. One commenter indicated that clarification is needed to unambiguously define and limit what is meant by canals, basins and slips. This is a section 10 NWP and the term canal in this instance is related to navigation. Therefore, flood control or other canals that do not normally support navigation are not covered by this NWP. The term basin is also intended to relate to navigation, such as a marina. A marina basin is defined as the open water portion of a marina which is normally bounded on one or more sides by uplands or structures (i.e., bulkheads, walkways, floating or stationary piers and/or breakwaters). A slip is the open water area where an individual boat is moored and is normally bounded on one or more sides by uplands or structures (e.g., bulkheads, walkways, piers, piling, etc.). We have modified the permit by replacing the term "canals" with the term "channels". We have made this change to clarify our intent to allow maintenance dredging of navigational channels connected to marina basins.
One commenter suggested that the NWP be broadened to include maintenance dredging of previously authorized intake and discharge structures and canals for electric power plants. The commenter added that this activity is infrequent, typically requiring maintenance dredging no more often than every five to ten years. We are not adding such canals because their primary purpose is not to support navigation.
A few commenters expressed concern about the method of disposal related to waste discharge requirements of boats using the area and 401 water quality certification. The states review water quality concerns under section 401 of the Clean Water Act and boats must meet discharge requirements established by the Coast Guard. Moreover, this NWP is not for construction of marinas, but for maintenance dredging of their basins and access canals.
One commenter suggested that each Corps district incorporate seasonal restrictions to limit impacts to anadromous fish. Another commenter stated that the NWP should not be used to remove natural gravel deposits or woody debris caused by flooding which may directly impact stream flow and may affect anadromous fish. We believe that these issues can be addressed through regional conditions to this NWP or by activity-specific conditions required by the DE, where necessary. One commenter expressed concern over the possibility of resuspension of pollutants accumulated in the sediments of marina basins during such maintenance activities. The Corps shares these concerns and is therefore, with this publication, requiring that the Division Engineers, through the recommendation of the DEs, regionally condition this NWP to exclude marinas where there is a high potential for resuspension of pollutants that may adversely affect water quality. NWP 35 is reissued with clarifications discussed above.
36. Boat Ramps: The Corps proposed no changes to this NWP. One commenter suggested that this NWP be subject to notification requirements. Another commenter suggested that the NWP would encourage the construction of individual boat ramps. A few commenters suggested that mitigation be required for lost special aquatic sites and habitat. A few commenters requested additional conditions to avoid impacts to endangered species and fish spawning seasons, to place unpolluted fill material, and to limit construction periods. A few commenters suggested modifications to the size limits of this NWP.
The Corps notes that no discharge of fill material would be allowed into special aquatic sites under this nationwide permit, and the boat ramps authorized are very small. Given this and the discretionary authority provisions, we believe that the notification requirement is not necessary to ensure minimal adverse effects. The NWP, as written, adequately balances the need for public access to the nation's waterways while protecting aquatic resources. The NWP specifies that unsuitable material that causes unacceptable chemical pollution, or is structurally unstable, is not authorized. We believe the general and special conditions in regard to endangered species and spawning areas, respectively, are adequate. Additional measures have been added by the Corps as regional conditions to address specific issues. NWP 36 is reissued without change.
37. Emergency Watershed Protection: The Corps proposed no changes to this NWP. A few commenters wrote to state their general support for this nationwide permit. Several commenters believe that the NRCS is misusing and abusing the Emergency Waters Protection Program (EWPP) and have suggested imposing a time limit after the occurrence of the natural disaster/emergency situation for the project to qualify for this nationwide permit. It is not always possible to immediately determine the full scope of the damages caused by an individual event. The Corps considers whether or not the material to be removed was a result of a flood event through the PCN process. It is the responsibility of the NRCS, not the Corps, to determine whether the project complies with their program authority. It is the Corps responsibility to review the project and concur that the proposal will result in only minimal impacts and otherwise comply with the terms and conditions of the NWP. Some commenters suggested that we expand this nationwide permit to include all emergency response work as a result of a state or Federal Disaster Declaration and eliminate the notification requirement. After each natural disaster/emergency situation, those responsible for performing this work must coordinate with all appropriate agencies to ensure not only an expeditious response to the situation, but compliance with all applicable laws. Most work of this type is authorized under Nationwide Permit 3. For EWPP projects, notification will continue to be required to ensure that the terms and conditions are met and only minimal adverse effects will occur. NWP 37 is reissued without change.
38. Cleanup of Hazardous and Toxic Waste: The Corps proposed clarification as to which projects approved under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) do not require authorization under sections 10 and 404.
Four commenters noted that CERCLA does not absolve the Corps of its responsibilities under section 404 or section 10, and/or recommended inclusion of language that states that section 404(b)(1) compliance is still necessary unless EPA specifically grants a waiver of "applicable or relevant and appropriate requirements" compliance. One of these commenters also stated that the final permit should indicate specifically the substantive requirements that would apply to CERCLA actions under this nationwide, and whether the Corps intends to encompass all CERCLA actions. One commenter recommended deleting the last sentence of the proposed language regarding CERCLA exemptions. EPA notes that the new language proposed for nationwide permit 38 regarding CERCLA exemptions refers to section 121(e)(1) of CERCLA for activities carried out under that section, which only exempts from permit requirements activities that are conducted "entirely on site." They recommend modifying the last sentence of the proposed language to read "Activities undertaken entirely on a CERCLA site by authority of CERCLA ***." They further note that section 121(e)(1) contains the restriction that the activity must be "carried out in compliance with this section." We concur with this clarification and have added the suggested language.
One commenter stated that nationwide permit 38 illegally delegates the Corps responsibility to protect wetlands to other Federal and state agencies that have very different missions. The Corps has not delegated any regulatory responsibility. The applicant must notify the Corps according to the notification procedures and coordination with other pertinent agencies would be conducted. Appropriate measures to mitigate adverse environmental impacts would be required by the Corps if necessary to ensure that the adverse effects are minimal. This commenter also states that the proposed exemption for EPA-approved or required projects under Superfund that do not require a section 404 or section 10 permit has no statutory basis in the CWA or CERCLA. We note that section 121(e)(1) does specifically allow for exemptions from section 404 and section 10, provided the activities are conducted entirely on-site.
This commenter also notes that no limits are imposed by this nationwide permit and that this violates section 404(e). We disagree. First, there are multiple environmental reviews involved in CERCLA clean up activities. Second, a large project can have minimal adverse effects depending on the functions and values of the impacted waterbody. This commenter further questioned the validity of the information provided in the Federal Register notice on types of potential contamination sources, assumptions made regarding quality of containment technologies, compliance with NEPA by lack of appropriate specificity, and lack of demonstration of compliance with the 404(b)(1) Guidelines by leaving all standards of approval to EPA or state or local regulators. The commenter also encourages the Corps to remain involved to ensure appropriate implementation of section 404 and section 10 requirements with the other parties involved. We believe that the information and project specific evaluation is best left to a case-by-case review by EPA and the Corps through the PCN process. We further note that under EPA's CERCLA guidance, provisions of the section 404(b)(1) Guidelines are considered by EPA.
This commenter recommended nationwide permit 38 not be reissued and that the Corps should conduct its regulatory responsibilities concurrently with the other agencies.
We believe that the NWP ensures that wetlands functions and values are appropriately protected. We also believe that the nationwide permit as written provides for such concurrent evaluation, coordination, and oversight.
One commenter recommended not reissuing this nationwide permit or narrowing it to avoid allowing the dredging of hazardous and/or toxic materials that have settled in river bottoms. One commenter recommended that projects that may affect wetlands or other special aquatic sites include a mitigation plan sufficient to offset impacts. Another commenter noted that specific mitigation requirements are not mentioned under this nationwide permit, and notes that mitigation for lost functions and values should be required if such functions and values were present on the site prior to cleanup. One commenter stated that this nationwide permit should be limited to projects impacting less than one acre of waters of the United States. The notification procedure allows the relevant agencies to provide comments regarding concerns regarding potential contamination issues or to identify mitigation needs. If the Corps determines the project is likely to result in more than minimal adverse effects, appropriate mitigation will be required to reduce adverse environmental effects below the minimal level, or the DE may notify the applicant that the project does not qualify for authorization under the nationwide permit and instruct the applicant to seek authorization under an individual permit. Restricting this nationwide permit to projects of less than one acre of impacts to jurisdictional waters of the United States would unduly limit its application. We do not believe that such a restriction is warranted provided appropriate mitigation is required by the Corps through the PCN process.
One commenter supported the proposal to clarify the scope of this nationwide permit by recognizing that activities conducted under the authority of CERCLA do not require section 404 or section 10 permits and recommended that language be provided that expressly notes that the notification procedure is not applicable for activities conducted under CERCLA authority. The language of the NWP explicitly states that Corps section 404 and section 10 permits are not required. Thus, notification to the Corps is not necessary for those projects undertaken under authority of CERCLA.
Two commenters recommended that nationwide permit 38 include activities undertaken under authorities other than CERCLA, such as Resource Conservation and Recovery Act (RCRA) or state Superfund programs. As stated in the current and proposed wording, actions performed, ordered, or sponsored by a government agency with established legal or regulatory authority are authorized under this nationwide permit.
One commenter noted that section 401 water quality certification and the Coastal Zone Management Act (CZMA) consistency could be granted without additional regional conditions. Such determinations will be made by each individual state. NWP 38 is reissued with the clarification discussed above.
40. Farm Buildings: The Corps proposed correcting the reference to the "minimization" condition to reflect its current title, "mitigation" condition. We also proposed deletion of "agricultural related structures necessary for farming activities" to clarify that we intend the NWP to only authorize farm buildings such as agricultural sheds, supply storage, and barns on a farm or ranch. The NWP is not intended to authorize production nor warehousing type facilities.
One commenter recommended that saltflats or saltponds be added to the wetland types excluded from this NWP due to their inherent values for sediment retention and wintering shorebird and waterfowl habitats. Two commenters recommended deleting the reference to exclusion of prairie potholes, playa lakes and vernal pools to include all wetlands converted or in agricultural production prior to December 23, 1985. The commenter also recommended deletion of the term "farmed wetlands" to remove a potential source of confusion, and recommended adding the phrase "and agricultural related facilities necessary for farming activities" at the end of the first sentence.
We believe these suggestions would serve to expand this nationwide permit to allow any and all "agricultural related facilities." Restricting this nationwide permit to farm buildings is the intent. We do not believe it is necessary to include any and all possible facilities to be found on farms across the United States. Restrictions on farmed wetlands are appropriate because they are still jurisdictional waters of the United States. The 404(f) exemptions for normal farming activities involve working the land and farm machinery access, not construction of buildings. Prior-converted croplands are not jurisdictional unless wetland characteristics develop upon abandonment of the land. Exclusion of prairie potholes, playa lakes and vernal pools from the scope of the permit is appropriate because of the high ecological values typically associated with these waters. While we recognize the high resource values inherent in many saltflats and salt ponds, these areas typically are not farmed and their exclusion should be considered on a regional basis by the Corps districts.
Several commenters stated that this NWP violates the minimal impact standard of section 404(e). One commenter supported the proposed change provided there were further clarifications of purpose. Specifically, this commenter recommended the permit language should refer to "foundations and building pads for farm buildings," it should refer to farmed wetlands as those wetlands that were in agricultural crop production prior to December 23, 1985, and are currently in agricultural use, and it should refer to discharges associated with a "single and complete project." Another commenter noted that the permit language allows discharges into jurisdictional wetlands that were in agricultural production prior to this date, but there is no explicit requirement that the area still be in agricultural production. Many stated the proposal to limit this nationwide permit to only "farm buildings" was not simply a clarification, but a reduction in coverage of the NWP, and were opposed to the modification without data supporting the need for change. One commenter recommended limiting this NWP to only farm homes and limiting impacts to only 0.1 acre. Many commenters also noted that the placement of non-water dependent structures in wetlands is inappropriate. One commenter recommended that any discharge into jurisdictional wetlands be compensated by an approved mitigation plan coordinated with the appropriate resource agencies. One commenter had no objection to issuance as proposed provided it was regionally conditioned to apply only to isolated wetlands. One commenter recommended that this NWP not be reissued due to impacts to wetlands already sustained in his region, and because the NWP language provides no guidance on how the one-acre limit is interpreted, provides no definitions of terms such as "necessary," "agriculturally related," and "minimum".
The NWP only applies to farmed wetlands that are currently in agricultural production. We believe that the acreage limitations will ensure that impacts to farmed wetlands will be minimized. We further believe that notification and delineation of special aquatic sites is unnecessary because this nationwide permit applies only to farmed wetlands that are currently in agricultural production.
Many commenters opposed the reissuance of this NWP without further clarification of the intent. The majority of the concerns related to the potential for housing animals or agricultural chemicals in or adjacent to wetlands with the attendant concerns for contamination of local water sources from runoff and requested that such structures be excluded. One commenter noted that this NWP does not require notification to the Corps or other agency and could potentially render a potable water source unfit for human consumption. Three commenters requested language that made it clear that the permittee would still be required to obtain all other required permits such as waste water and waste management permits. One commenter recommended reissuance of this NWP only if it were conditioned for best management practices for size thresholds, pollutant discharge standards, and monitoring protocols. The Corps shares the concerns for potential adverse effects to water quality from runoff and leaching of agricultural chemicals and animal waste products. Therefore, we have added a Corps-only PCN requirement for the placement of any farm building within 500 feet of a flowing stream or waterbody. This PCN will be used by the DE to determine if adverse effects to water quality may result from the placement of the farm building. If the DE concludes that the project, as designed, may adversely effect water quality, additional protective measures, including relocation of the proposed project, may be required.
Proposed New Nationwide Permit A. Moist Soil Management for Wildlife: This proposed permit is discussed above in the "Discussion of Public Comments and Changes" section and included below in the "Nationwide Permits and Conditions" section as Nationwide Permit 30: "Moist Soil Management for Wildlife".
Proposed New Nationwide Permit B. Food Security Act Minimal Effect Exemptions: The majority of comments on NWP B recommended waiting for review of the regulations implementing the 1996 Amendments to the Food Security Act of 1985 (FSA) before issuing this nationwide permit. The Corps had anticipated that the regulations would be final by July 1, 1996; however, it was not published final until after the end of the comment period for the proposed nationwide permits. Therefore, we intend to re-propose NWP B in the Federal Register at a future date. Of the many comments received, approximately half requested that this nationwide permit not be issued, mostly based on perceptions that the permit would result in adverse impacts to wetlands, while the other half supported it. The comments already received will be considered along with those received in response to our future notice of proposed issuance of this nationwide permit.
Proposed New Nationwide Permit C. Mining Operations: A large number of comments were received on this proposed permit. Through our review of this proposal we found sand and gravel mining operations and recreational mining activities vary greatly across the country, not only in scope but in types and levels of impacts as well. We believe that the development of regional general permits, including programmatic general permits based on state or regional programs, will provide a more effective process for dealing with the differing conditions of various geographical areas of the country. It would not be productive to attempt to specify limits to reduce the individual and cumulative impacts of a NWP for in stream mining to a minimal level when a majority of the proponents indicate that the permit is of little value unless the allowable level of impact is increased. Corps districts and divisions will be encouraged to develop regional general permits for these activities. Proposed nationwide permit C is not issued.
Proposed New Nationwide Permit D. Maintenance of Existing Flood Control Projects: This proposed permit is discussed above in this "Discussion of Public Comments and Changes" section and included below in the "Nationwide Permits and Conditions" section as Nationwide Permit 31: "Maintenance of Existing Flood Control Projects".