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[Federal Register: January 15, 2002 (Volume 67, Number 10)] [Notices] [Page 2019-2095] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr15ja02-120] [[Page 2019]] ----------------------------------------------------------------------- Part II Department of Defense ----------------------------------------------------------------------- Department of the Army, Corps of Engineers ----------------------------------------------------------------------- Issuance of Nationwide Permits; Notice [[Page 2020]] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers Issuance of Nationwide Permits; Notice AGENCY: Army Corps of Engineers, DoD. ACTION: Final notice. ----------------------------------------------------------------------- SUMMARY: The Corps of Engineers is reissuing all the existing Nationwide Permits (NWPs), General Conditions, and definitions with some modifications, and one new General Condition. These final NWPs will be effective on March 18, 2002. All NWPs except NWPs 7, 12, 14, 27, 31, 40, 41, 42, 43, and 44 expire on February 11, 2002. Existing NWPs 7, 12, 14, 27, 31, 40, 41, 42, 43, and 44 expire on March 18, 2002. In order to reduce the confusion regarding the expiration of the NWPs and the administrative burden of reissuing NWPs at different times, we are issuing all NWPs on the same date so that they expire on the same date. Thus, all issued, reissued and modified NWPs, and General Conditions contained within this notice will become effective on March 18, 2002 and expire on March 19, 2007. DATES: All NWPs and general conditions will become effective on March 18, 2002. All NWPs have an expiration date of March 19, 2007. ADDRESSES: HQUSACE, ATTN: CECW-OR, 441 ``G'' Street, NW., Washington, DC 20314-1000. FOR FURTHER INFORMATION CONTACT: Mr. David Olson, at (703) 428-7570, Mr. Rich White, at (202) 761-4599, or Mr. Kirk Stark, at (202) 761-4664 or access the U.S. Army Corps of Engineers Regulatory Home Page at: http//:www.usace.army.mil/inet/functions/cw/cecwo/reg/. SUPPLEMENTARY INFORMATION: Background In the August 9, 2001 (66 FR 42070), Federal Register the Corps proposed to reissue all the existing Nationwide Permits (NWPs), General Conditions, and definitions with some modifications, and one new General Condition. We proposed to modify NWPs 14, 21, 27, 31, 37, 39, 40, 42, and 43, General Conditions 4, 9, 13, 19, 21, 26, and add a new General Condition 27. The proposal intended to simplify and clarify permits that have no more than minimal effect on the environment, add additional requirements that will enhance protection of the aquatic environment, increase flexibility for the Corps field staff to target resources where most needed to protect the aquatic environment, reduce unnecessary burdens on the regulated public, and retain the key protections for the aquatic environment that were added last year (e.g. acreage limit of \1/2\ acre of impact per project, the requirement for the Corps to be notified of any impacts over \1/10\ acre, and important limits on impacts within mapped floodplains). As a result of the comments received in response to the August 9, 2001, Federal Register notices and the public hearing on September 26, 2001, the Corps has made a number of changes to the proposed NWPs and General Conditions that are designed to further clarify the permits and strengthen environmental protection. These changes are discussed in the preamble. In the December 13, 1996, issue of the Federal Register, the Corps announced its intention to replace NWP 26 with activity-specific NWPs before the expiration date of NWP 26. In the March 9, 2000, Federal Register notice (65 FR 12818--12899), the Corps published five new NWPs, modified six existing NWPs, modified six General Conditions, and added two new General Conditions to replace NWP 26. The five new NWPs (i.e., 39, 41, 42, 43, 44) and six modified NWPs (i.e., NWPs 3, 7, 12, 14, 27, and 40) would have expired five years from their effective date of June 7, 2000. Today the Corps of Engineers is reissuing all the existing Nationwide Permits (NWPs), General Conditions, and definitions with some modifications, and one new General Condition. These final NWPs will be effective on March 18, 2002. All NWPs except NWPs 7, 12, 14, 27, 31, 40, 41, 42, 43, and 44 expire on February 11, 2002. Existing NWPs 7, 12, 14, 27, 31, 40, 41, 42, 43, and 44 expire on March 18, 2002. In order to reduce the confusion regarding the expiration of the NWPs and the administrative burden of reissuing NWPs at different times, we are issuing all NWPs on the same date so that they expire on the same date. Thus, all issued, reissued and modified NWPs, and General Conditions contained within this notice will become effective on March 18, 2002 and expire on March 19, 2007. Grandfather Provision for Expiring NWPs at 33 CFR 330.6 Activities authorized by the current NWPs issued on December 13, 1996, (except NWPs 7, 12, 14, 27, 31, 40, 41, 42, 43, and 44), that have commenced or are under contract to commence by February 11, 2002, will have until February 11, 2003 to complete the activity. Activities authorized by NWPs 7, 12, 14, 27, 31, 40, 41, 42, 43, and 44, that were issued on March 9, 2000, that are commenced or under contract to commence by March 18, 2002, will have until March 18, 2003 to complete the activity. Clean Water Act Section 401 Water Quality Certification (WQC) and Coastal Zone Management Act (CZMA) Consistency Agreement In the August 9, 2001, Federal Register notice and concurrent with letters from Corps Districts to the appropriate state agencies, the Corps requested 401 certification and CZM consistency agreement. This began the Clean Water Act section 401 water quality certification (WQC) and Coastal Zone Management Act (CZMA) consistency agreement processes. Today's Federal Register notice provides a 60-day period for the states to complete the Clean Water Act section 401 water quality certification (WQC) and Coastal Zone Management Act (CZMA) consistency agreement processes. On August 9, 2001, we proposed to increase the normal 60-day period to complete the WQC and CZMA processes to 90 days. However, due to a majority of the NWPs expiring February 11, 2001, and schedule delays, we have had to keep the WQC and CZMA processes to 60 days. Also during this 60-day period, Corps divisions and districts will finalize their regional conditions for the new and modified NWPs. Discussion of Public Comments I. Overview In response to the August 9, 2001, Federal Register notice, we received more than 2,100 comments. We reviewed and fully considered all comments received in response to that notice. Many commenters expressed opposition to the proposed NWPs, but a few commenters indicated support for these NWPs. Most of the comments in opposition of the NWPs were two versions of identical post cards and a form letter that objected to proposed changes to general conditions 19 and 26, opposed the removal of linear limits for NWPs 21, 39, 40, 42, 43, and 44, and requested the withdrawal of NWP 21. Other commenters said that the NWPs were too difficult for the public to use, the NWPs exceeded the Corps jurisdiction, and the acreage and linear limits were too low for the NWPs to be useful. One commenter indicated that few changes proposed in the August 9, 2001, Federal Register notice will result in decreased workload for the Corps. [[Page 2021]] After considering the comments received in response to the August 9, 2001, Federal Register notice, we made several changes to the NWPs, general conditions, and definitions. These changes are discussed in detail in the preamble discussion for each NWP, general condition, and definition. We do not agree that the NWPs are too difficult for the regulated public to use. We have retained the \1/2\ acre limit for many of the NWPs, to ensure that those NWPs authorize only activities with minimal adverse effects on the aquatic environment, individually and cumulatively. We have not adopted the proposed waiver process for the 300 linear foot limit for perennial streams in NWPs 39, 40, 42, and 43. We did adopt the waiver for intermittent streams in NWPs 39, 40, 42, and 43. NWPs 21 and 44 do not currently have a linear foot limitation, so the waiver does not apply. We believe that the changes to the NWPs will allow the Corps to more effectively authorize activities with minimal adverse effects on the aquatic environment. II. General Comments Many commenters objected to the NWP proposal, stating that it will place citizens at risk from flooding, promote wetland and stream destruction, degrade water quality, and result in the loss of critical habitat. Another commenter indicated that the NWPs need to be strengthened to ensure that marine, riparian, and riverine habitats, and the fish species that depend on those habitats, are adequately protected under the NWP process. One commenter said that the NWPs should authorize only those activities that have minimal impacts on water quality. This commenter said that the NWPs will lead to piecemealing and result in cumulative impacts detrimental to particular waterbodies. A commenter objected to the NWPs, stating that the NWPs authorize activities that expand existing developments. Another commenter said that the proposed NWPs will only benefit the development community and the Corps, while exposing the public and environment to unnecessary harm. One commenter stated that the Corps proposal to modify the NWPs would significantly weaken wetlands protection and severely hamper the ability of State fish and wildlife agencies to conserve wetlands and watersheds. The terms and conditions of the NWPs, including the general conditions, ensure that the activities authorized by NWPs result in no more than minimal adverse effects on the aquatic environment, including wetlands and streams. General Condition 26, Fills Within 100-year Floodplains, addresses the use of certain NWPs to authorize activities in 100-year floodplains and ensures that such activities comply with FEMA-approved State and local floodplain management requirements. General Condition 11, Endangered Species, ensures that activities authorized by NWPs comply with the Endangered Species Act. Water quality certification is required for NWP activities authorized under section 404 of the Clean Water Act. In addition, district engineers can require water quality management measures to ensure that NWP activities result in no more than minimal adverse effects on water quality. NWPs authorize single and complete projects, and do not result in piecemealing of projects. District engineers consider cumulative adverse effects when reviewing requests for NWP verifications, including activities that result in the expansion of existing developments. The NWPs do not impede the efforts of State fish and wildlife agencies to conserve wetlands and watersheds. Several commenters asserted that the NWP program contradicts the clear intent of Congress to establish a streamlined general permit process for activities with minimal adverse effects on the aquatic environment. A couple of commenters said that the NWPs regulate activities that are exempt from the Clean Water Act and its implementing regulations. These commenters requested more consistency between the NWPs and these statutory exemptions. One commenter stated that drainage districts are generally exempt from permit requirements, including pre-construction notification (PCN) requirements. This commenter said that the NWP conditions and notification requirements are too costly and could impair the ability of drainage districts to meet their obligations to protect citizens from flooding, and that the drainage ditches should be exempt from these regulations. One commenter stated that the Corps should recognize the important differences between wetland landscapes and the protection of non-aquatic areas that are dominated by ephemeral drainage systems in the desert regions of the southwest United States. The NWPs provide an expedited review process for activities in waters of the United States that result in no more than minimal individual and cumulative adverse effects on the aquatic environment. Although the NWP program has undergone substantial changes in recent years, we believe those changes were necessary to ensure compliance with section 404(e) of the Clean Water Act. Section 404(e) authorizes the Corps to issue general permits, including NWPs. General permits authorize activities that are similar in nature and result in no more than minimal adverse effects on the aquatic environment, individually and cumulatively. The lower acreage limits and more restrictive terms and conditions of the NWPs are necessary to comply with section 404(e). The NWPs do not regulate activities that are exempt from the permit requirements of the Clean Water Act. Certain activities that are conducted by drainage districts, such as the maintenance of drainage ditches, may be eligible for section 404(f) exemptions and therefore may not require authorization from the Corps. The construction of new drainage ditches may require a Department of the Army (DA) permit, if the proposed work involves discharges of dredged or fill material into waters of the United States and/or work in Section 10 waters. The NWPs do not change the section 404(f) exemptions. The NWPs authorize certain activities that require a DA permit pursuant to section 10 of the Rivers and Harbors Act and/or section 404 of the Clean Water Act. Some NWPs, such as NWPs 3 and 14, contain references to the section 404(f) exemptions. Project proponents can contact district engineers to determine whether specific activities qualify for the section 404(f) exemptions. The NWPs allow district engineers flexibility when reviewing activities that involve discharges of dredged or fill material into ephemeral streams. Division engineers can regionally condition the NWPs to restrict or prohibit specific activities that result in the loss of ephemeral stream beds, or require project proponents to notify district engineers prior to construction for case-by-case review. The waiver process for the 300 linear foot limit for NWPs 39, 40, 42, and 43 allows district engineers to issue NWP verifications for activities that result in the loss of greater than 300 linear feet of intermittent (but not perennial) stream bed and have no more than minimal adverse effects on the aquatic environment. Several commenters indicated that the proposed changes to the NWP program fails to address the significant problems with the new and modified NWPs that were published in the March 9, 2000, Federal Register (65 FR 12818). Two commenters stated that the restrictions in those NWPs have resulted in large burdens on the transportation construction industry and planning [[Page 2022]] officials. One commenter said that the elimination of the NWP 26 has resulted in large increases in delays associated with obtaining individual permits for transportation activities that were authorized by NWP 26. One commenter stated that these NWPs will result in longer delays and greater expenses for simple projects. This commenter said that NWP 26 should be reinstated to replace these cumbersome NWPs. One commenter asserted that the NWPs result in substantial burdens on the regulated public. Two commenters recommended that the Corps improve the NWP program by increasing acreage limits, increasing PCN thresholds, and reducing PCN information requirements. The replacement of NWP 26 with activity-specific NWPs was necessary to ensure compliance with section 404(e) of the Clean Water Act. The terms and conditions of the NWPs published in the March 9, 2000, Federal Register notice were intended to ensure that the NWPs authorize only those activities that result in no more than minimal adverse effects on the aquatic environment. We recognize that certain activities that were previously authorized by NWPs now require individual permits, and that it takes more time to authorize those activities, including some transportation projects. We do not agree that the acreage limits and PCN thresholds of the NWPs should be increased, because the lower limits and thresholds ensure that the NWPs authorize only activities with no more than minimal adverse environmental effects. One commenter stated that the Corps data shows that the number of acres of wetlands created under the mitigation requirements of the NWP program exceeds the number of acres permitted under the program. This commenter asked why the Corps has failed to do more to carry out the policies established in section 101(f) of the Clean Water Act to minimize paperwork, seek the best uses of manpower and funds, and to prevent needless delays at all levels of government. The NWP program complies with the requirements of section 101(f) of the Clean Water Act, by providing an effective means of authorizing activities with no more than minimal individual and cumulative adverse effects on the aquatic environment. Implementation One commenter objected to the NWPs, stating that these permits remove the public, resource agencies, and the Corps from the permit review process. Another commenter said that NWP activities should be coordinated with natural resource agencies and the public. One commenter said that it is not appropriate for the Corps to rely on discretionary authority, regional conditions, and the PCN process to reduce the adverse impacts to the aquatic environment to a minimal level. This commenter stated that regional conditions are not consistently implemented across the country or to the degree necessary to ensure minimal effects. The NWPs authorize minor activities that are usually not controversial and would result in little or no public or resource agency comment if they were reviewed through the standard permit process. Conducting full public interest reviews for NWP activities would substantially increase the Corps workload without substantial added value for the aquatic environment. NWP activities that require notification to the district engineer and result in the loss of greater than \1/2\ acre of waters of the United States are coordinated with the appropriate Federal and state agencies (see paragraph (e) of General Condition 13). Discretionary authority, regional conditions, and the PCN process are essential elements of the NWP program, to ensure that NWP activities result in no more than minimal adverse effects on the aquatic environment. In response to a PCN, a district engineer can add special conditions to the NWP authorization to ensure that the activity will result in no more than minimal adverse effects on the aquatic environment. If the proposed work will result in more than minimal adverse effects on the aquatic environment, district engineers can exercise discretionary authority to require an individual permit. Regional conditions are not consistent throughout the country, because they address differences in aquatic resource functions and values in watersheds or other types of geographic regions. One commenter stated that in order to ensure that the NWPs authorize only activities with minimal adverse effects on the aquatic environment, the NWPs should include a new general condition. This general condition would require public notices in all cases where notification is required and the submission of surveys of terrestrial and aquatic species and cultural and historic resources that may be affected by the NWP activity. We do not agree that the general condition proposed in the previous paragraph is practical or necessary. General Condition 11, Endangered Species, addresses compliance with the Endangered Species Act. General Condition 12, Historic Properties, addresses compliance with the requirements of the National Historic Preservation Act. Project proponents may be required to provide surveys of endangered species or cultural resources to ensure compliance with these general conditions. One commenter asserted that there is an unsubstantiated presumption that compensatory mitigation in any form effectively offsets the individual or cumulative adverse effects of NWP activities. One commenter indicated that, due to the small NWP acreage limits, the Corps has lost the ability to direct mitigation toward areas that would provide the most benefits on a watershed basis. One commenter said that mitigation should not be used to ensure that NWP activities result in minimal adverse effects on the aquatic environment. This commenter suggested that avoidance and practicable alternatives should be emphasized. Compensatory mitigation is an important mechanism to ensure that the activities authorized by NWPs result in no more than minimal adverse effects on the aquatic environment, individually and cumulatively. Compensatory mitigation can be provided through individual aquatic resource restoration, creation, enhancement, or in exceptional circumstances, preservation projects, as well as mitigation banks, in lieu fee programs, and other types of consolidated mitigation efforts. General Condition 19 discusses mitigation for NWP activities, including the requirement for project proponents to avoid and minimize adverse effects on waters of the United States to the maximum extent practicable on the project site. One commenter objected to the NWPs, stating that conditions imposed on the NWPs are rarely monitored for compliance. This commenter suggested that the Corps commit to an aggressive monitoring and enforcement program for activities authorized by NWPs. Another commenter said that the lack of compliance inspections has resulted in numerous instances where activities authorized by NWPs have resulted, through implementation failures and intentional violations, in substantial adverse effects. This commenter suggested that each NWP should be subject to a statistically sufficient number of compliance inspections to determine whether compliance is being achieved, and whether the NWP activities are resulting in more than minimal individual or cumulative adverse effects. One commenter said that enforcement efforts should not be [[Page 2023]] weakened. One commenter stated that the Corps needs to monitor and enforce the national and regional conditions of the NWPs. We are committed to strong enforcement and compliance efforts for activities authorized by DA permits, including NWPs, but the amount of time dedicated to enforcement and compliance is dependent upon the value of the impacted resource and the available amount of district resources. The Corps is increasing its compliance efforts to further improve compliance. In consultation with other Federal agencies, the Corps is currently finalizing guidance that will address the need for improved compliance. One commenter asserted that Corps personnel rarely verify the information provided in NWP verification requests, and speculated that project proponents may under-report the amount of impacts to waters of the United States to qualify for NWP authorization. This commenter suggested that the Corps commit to independent verification of the information submitted in NWP verification requests or verify the information for randomly selected subsets of verification requests. One commenter suggested that Corps produce educational brochures and web pages that describe the basic information that must be submitted in order to ensure that a NWP request is considered complete. District personnel review requests for NWP verifications to determine if the information provided by the project proponents is accurate. The level of review is dependent on the amount of impacts proposed by the applicant and the resources available to Corps personnel. Site visits cannot be conducted for all NWP verification requests. District personnel utilize their knowledge of local conditions when reviewing NWP verification requests to assess whether the information provided in the NWP verification request is accurate. The Corps Headquarters homepage, see address above, and Corps district homepages contain information on the NWPs, including the NWPs, general conditions, regional conditions, state 401 and CZM conditions, and decision documents. The text of General Condition 13, Notification, lists the information necessary for a complete PCN. Several districts also provide brochures to assist project proponents who are preparing permit applications or NWP verification requests. District home pages on the Internet also have other information that is useful for permit applicants. Acreage Limits Three commenters suggested that higher acreage limits should be adopted for impacts to non-wetland waters and that district engineers should have the authority to issue project-specific waivers to NWP acreage limits. One commenter said that there should be higher acreage limits for master planned communities or similar planned development projects. One commenter said that a 500 linear foot limit for stream impacts should be added to the NWPs. We do not agree that higher acreage limits should be implemented for NWP activities that result in the loss of non-wetland waters, or for master planned development projects. Open waters, such as streams, ponds, lakes, estuaries, and the oceans, are important components of the overall aquatic environment and provide valuable functions and environmental benefits. We also do not agree that a waiver process should be implemented for the acreage limits of NWPs. We do not believe it is necessary to impose a 500 linear foot limit on all losses of stream bed authorized by NWPs. The 300 linear foot limit for NWPs 39, 40, 42, and 43, and the waiver process for intermittent streams will ensure that those NWPs authorize no more than minimal impacts to stream beds. And such a limit is not necessary for the other NWPs. In addition, these acreage limit suggestions would require notice and comment, before they could be adopted. One commenter stated that the standard permit process does not necessarily result in additional avoidance, minimization, or compensatory mitigation, but causes substantial project delays, higher costs, and increased risks to public safety. Two commenters suggested that the Corps implement an NWP program that imposes the acreage limits of the 1996 NWPs (i.e., 3 acres) on the activity-specific NWPs published in the March 9, 2000, Federal Register. A number of commenters recommended reissuing NWP 26. One commenter said that the NWPs are too restrictive and they add unnecessary administrative burdens while providing questionable environmental benefits. Two commenters said that there is nothing in the administrative record that indicates the need for the \1/2\ acre limit. Three commenters stated that the acreage limits and PCN thresholds are arbitrary and capricious and unsupported by sound science. The standard permit process can result in additional avoidance and minimization because of the Section 404(b)(1) guidelines analysis required for those standard permit activities that involve discharges of dredged or fill material into waters of the United States. The terms and conditions of the NWPs, including the \1/2\ acre limit for many of the NWPs, are necessary to ensure that the NWPs authorize only those activities with no more than minimal adverse effects on the aquatic environment, individually and cumulatively. We do not agree that NWP 26 should be reinstated, because the replacement of NWP 26 was necessary to ensure compliance with section 404(e) of the Clean Water Act. One commenter stated that the \1/2\ acre limit for certain NWPs has dramatically expanded the scope of the regulatory program, leading to increased costs and delays with few demonstrated environmental benefits. One commenter asserted that the acreage limits of the NWPs do not decrease losses of wetlands because projects are designed to impact the maximum amount to avoid the individual permit process. Several commenters said that the NWP program is no longer useful to industry and other regulated entities because the strict terms and conditions of the NWPs provide no incentives for project proponents to design projects to qualify for NWP authorization. This commenter said that there should be more reliance on regional conditions to ensure that there is no more than minimal adverse environmental effects, instead of unnecessarily restrictive national conditions. A number of commenters indicated that impacts on the environment will increase since few projects qualify for NWP authorization. The \1/2\ acre limit for certain NWPs has not increased the scope of the regulatory program, although it may result in more activities requiring individual permits. The terms and conditions of the NWPs are necessary to ensure that the NWPs authorize only those activities that result in no more than minimal adverse effects on the aquatic environment, individually and cumulatively. Division engineers can add regional conditions to the NWPs to address important aquatic resource functions and values in particular geographic areas, but the terms and national general conditions of the NWPs are necessary to address national concerns for the aquatic environment. The NWP program encourages avoidance and minimization of impacts to wetlands, and most project proponents do not request NWP authorization to fill the maximum amount of wetlands under the NWP acreage limits. General Condition 29 requires project proponents to avoid and minimize impacts to waters of the [[Page 2024]] United States to the maximum extent practicable on the project site. We believe that many project proponents will continue to design their projects to qualify for authorization under the NWPs, including avoiding and minimizing impacts to aquatic resources on the project site. Pre-construction Notification Process One commenter requested that the Corps reinstate the \1/3\ acre PCN threshold, or demonstrate that a lower notification threshold is necessary to ensure that adverse effects on the aquatic environment are minimal. The \1/10\ acre PCN threshold for several of the NWPs is necessary so that district engineers can review those activities to ensure that they result in no more than minimal adverse effects on the aquatic environment, individually and cumulatively. Therefore, we have retained the \1/10\ acre PCN threshold for certain NWPs. Additionally, the Corps does not believe the PCN requirements impose a significant burden on most project proponents. A few commenters stated that NWPs are complex and the PCN process requires too much time. One commenter said that the time limit for determining if a PCN is complete is longer than the 15 day period for determining if a standard permit application is complete. This commenter recommended that the Corps delete the 30 day completeness review for PCNs. This commenter said that increasing the PCN review period to 45 days does not comply with the goal for an expedited permit process, and makes the NWP process resemble the standard permit process. One commenter said that the PCN review process provides disincentives for project proponents to design their projects to qualify for NWP authorization. The 45 day PCN review period is necessary to allow district engineers to adequately review those activities that require PCNs. However, most NWP verifications do not take the full 45 days. The average time to verify a NWP activity is 19 days. Although the 30 day completeness review period for PCNs is less than the 15 day completeness review period for standard permit applications, the PCN process allows more effective authorization of activities with no more than minimal adverse effects on the aquatic environment. An individual activity authorized by an NWP does not require a public notice or the same level of review required for a standard permit activity. Project proponents requesting NWP verifications generally receive their authorizations more quickly than they would receive standard permits. The 45 day PCN review period includes the 30 day completeness review, and we do not agree that the 30 day completeness review period should be deleted. The completeness review period makes the PCN process more efficient by requiring district engineers to request additional information early in the PCN process. If a district engineer receives a complete PCN, then the decision to verify that the activity is authorized by NWP or exercise discretionary authority must be made within 45 days. We do not agree that the PCN process discourages project proponents from designing their projects to qualify for NWP authorization, because the NWP process is faster than the standard permit process. Compliance With Section 404(e) of the Clean Water Act and the National Environmental Policy Act Several commenters said that the NWPs do not comply with section 404(e) of the Clean Water Act because they authorize activities with more than minimal adverse effects on the aquatic environment. One commenter asserted that the NWPs should be limited to specific uses. Numerous commenters stated that the NWPs do not comply with the ``similar in nature'' requirement of section 404(e) of the Clean Water Act. The terms and conditions of the NWPs, including the acreage limits and PCN review process, ensure that the NWPs authorize only those activities with no more than minimal individual and cumulative adverse effects on the aquatic environment. The NWPs undergo a thorough review process every five years to ensure compliance with the requirements of section 404(e) of the Clean Water Act. Each of the NWPs complies with the requirement for general permits to authorize activities that are ``similar in nature.'' One commenter indicated that the database may not be adequate enough to warrant the proposed changes to the NWPs and said that the Corps cannot assure the public that the proposed changes will not result in greater impacts to waters of the United States. Another commenter said that the database to justify the proposed changes is small compared to the overall age of the permit program. A few commenters suggested that the regulations should be modified to require each Corps district office to furnish quarterly reports to each state agency in the district that would summarize the number, type, and impacts of activities in waters of the United States for all NWP verifications issued. Several commenters said that the Corps needs to improve its database for the regulatory program. The proposed changes to the NWPs published in the August 9, 2001, Federal Register will not result in more than minimal adverse effects on the aquatic environment. The proposed modifications are intended to improve the efficiency of the NWP program, and enhance protection of important aquatic resources. We do not agree that it is necessary to change the Corps regulations to require districts to provide states with quarterly reports concerning the impacts authorized by all NWP verifications. Corps headquarters is developing a new data collection and reporting system to replace the current system. The new system will improve data collection for the regulatory program, and will help the Corps compile summary data and evaluate trends. The new data collection system will improve the reliability of regulatory program data. One commenter said that the Corps has not adequately assessed cumulative impacts and that virtually no mitigation has been required because of the smaller individual impacts of these NWPs. Another commenter objected to the NWPs, stating that district engineers cannot determine the magnitude of individual and cumulative environmental impacts. One commenter said that the NWPs should not be reissued because cumulative impacts have not been addressed at a regional or national level. We maintain our position that assessing cumulative impacts across the nation is not possible or appropriate. We believe that no assessment of individual and cumulative impacts can be made a national level, because the functions and values of aquatic resources vary considerably across the country. Assessment of cumulative impacts is more appropriately conducted by Corps districts on a watershed basis, because they have better understanding of local conditions and processes. However, the NWP program is designed programmatically to ensure no more than minimal adverse effects, individually and cumulatively. This is accomplished through acreage limits, the PCN process, regional conditioning, and the exercise of discretionary authority to require individual permits. Each district generally tracks losses of waters of the United States authorized by Department of the Army permits, including verified NWPs, as well as required compensatory mitigation achieved through aquatic resource restoration, creation, and enhancement. The regional conditioning process, including [[Page 2025]] the preparation of supplemental Environmental Assessments by division engineers, also helps ensure that the NWPs authorize activities with no more than minimal adverse effects on the aquatic environment, individually and cumulatively. One commenter stated that National Environmental Policy Act (NEPA) requires the Corps to evaluate the environmental impacts of every major Federal action, such as the issuance of section 404 permits, that significantly affects the quality of the human environment. Several commenters said that Environmental Impact Statements (EISs) are required for the NWPs, at both the national and district levels. One of these commenters asserted that these EISs should examine all reasonable alternatives to the NWPs, general conditions, and regional conditions. One commenter said that EISs should be completed for NWPs 13, 29, 39, 40, 42, and 44. Two commenters said that regional conditions for the NWPs should not be finalized until an EIS on the NWPs is completed. One commenter expressed disagreement with the Finding of No Significant Impact (FONSI) for the NWP program that was issued on June 23, 1998, which stated that the Corps is not required to do an EIS for the NWPs. One commenter said that an EIS is required to demonstrate compliance with section 404(e) of the Clean Water Act. We maintain our position that the NWPs do not require an EIS, even though we are in the process of preparing a voluntary programmatic EIS for the NWP program. Since the NWPs authorize only those activities that have no more than minimal adverse effects on the aquatic environment, the NWP program does not reach the significance threshold required for the preparation of an EIS. The NWPs are subjected to a reissuance process every five years. This reissuance process involves a public notice and comment period, which provides the Corps with information to ensure that the NWPs continue to authorize only those activities with no more than minimal adverse effects on the aquatic environment, individually and cumulatively. Again, the NWP program does not reach the level of significant impacts that requires the preparation of an EIS. To comply with NEPA, Corps headquarters issues an Environmental Assessment (EA) for each NWP when it is issued, reissued, or modified. These EAs consider the environmental effects of each NWP from a national perspective. Each Corps division and district engineer will supplement these EAs to evaluate regional environmental effects of the NWPs. For the reasons above, the NWP program and the NWPs do not reach the level of significant impacts that requires the preparation of an EIS, and in fact are far below that level. We do not agree that regional conditions for the NWPs should not be finalized until an EIS on the NWPs is completed. We also believe that the FONSI for the NWP program that was issued on June 23, 1998, is still valid despite the changes to the NWPs that have occurred since the FONSI was issued. There have been no substantial changes to the NWP regulations at 33 CFR part 330 or to the implementation of the NWP program since the FONSI was issued. The FONSI discussed, in general terms, the implementation of the NWP program, including the procedures used by the Corps to ensure that the NWPs authorize only those activities with no more than minimal individual and cumulative adverse effects on the aquatic environment. The Corps is not required to do an EIS to demonstrate compliance with section 404(e) of the Clean Water Act. The decision documents issued for each NWP address compliance with the section 404(b)(1) guidelines, which require an analysis for the issuance of general permits (see 40 CFR 230.7). Finally, although not required to prepare an EIS, the Corps is preparing a voluntary Programmatic EIS to assess the NWP Program to see if there are changes to the NWP program that would further ensure that there are no more than minimal adverse effects to the aquatic environment, individually and cumulatively. The Programmatic EIS is discussed below. One commenter said that the Corps can not limit its analyses to only those effects of the NWPs that occur in jurisdictional waters at the location of the permitted activity. Another commenter said that an EIS is required each time an NWP is used to authorize a private development project. For the purposes of NEPA and the Corps regulatory program, the scope of analysis is limited to address the impacts of the specific activity requiring a DA permit and those portions of the entire project over which the district engineer has sufficient control and responsibility to warrant Federal review (see 33 CFR part 325, Appendix B, paragraph 7(b)). We do not agree that an EIS is warranted whenever an NWP is used to authorize a private development project, because the NWPs authorize only those activities that occur within the Clean Water Act section 404 limited scope of review and that have no more than minimal adverse effects on the aquatic environment. One commenter stated that the EAs for the NWPs must contain current data. Two commenters asserted that the decision documents, including the EAs and Statements of Finding, for the NWPs should be subjected to an agency coordination and public comment period before they are finalized. Another commenter said that the EAs fail to consider alternatives to the proposed NWPs. One commenter stated that the EAs prepared for the NWPs do not adequately describe or assess the significant cumulative effects the NWP program has on the environment. One commenter recommended that the Corps issue new EAs for each nationwide permit to demonstrate compliance with NEPA. One commenter objected to the preliminary EAs, stating that those documents do not demonstrate an ecological rationale for the proposed acreage limits of the NWPs. One commenter stated that the EAs do not adequately assess potentially significant environmental impacts of the NWPs. We believe it was unnecessary to make the revised EAs for the NWPs proposed in the August 9, 2001, Federal Register available for agency review and public comment. The EAs for the new and modified NWPs issued today discuss, in general terms, the acreage limits for these NWPs, the types of waters subject to the new and modified NWPs, and the functions of those waters. The EAs also address projected impacts to waters of the United States that will occur through the use of these NWPs. These projected impacts are based on recent data. The EAs also contain discussions of alternatives analyses. Since aquatic resource functions and values vary considerably across the country, we cannot include detailed ecological analyses to support the acreage limits for these NWPs. In addition, due to NEPA requirements concerning the length of environmental documentation, the EAs for the new and modified NWPs must be limited to general discussions of potential impacts. Division engineers will be issuing supplemental EAs that will address regional issues at the district level. The ``Forty Most Frequently Asked Questions'' concerning NEPA developed by the Council on Environmental Quality (i.e., Question 36) and the Corps regulations at 33 CFR part 325, Appendix B, discuss the recommended length of EAs. Finally, the changes in the new NWPs, relative to the existing NWPs, are minimal and generally designed to simplify the permits and increase protection of the aquatic environment. EAs for the existing [[Page 2026]] permits have been publicly available since these permits were issued. A few commenters said that the Corps must finalize the Programmatic Environmental Impact Statement (PEIS) for the NWPs before finalizing the NWP proposal published in the August 9, 2001, Federal Register. One commenter stated that the current NWPs should be extended until the PEIS is completed. One commenter stated that the draft PEIS for the NWP program does not address the specific effects of the NWPs on listed species, critical habitat or any other natural resources. Another commenter said that the draft PEIS lacks available data to assess the impacts of the NWP program because the Corps database is faulty. This commenter asserted that there should be no permitting until the Corps can adequately assess the success or failure of the regulatory program. One commenter said that the NWP PEIS does not provide sound scientific data that demonstrates that the NWPs have only minimal impacts on the environment. In March 1999 the Corps began preparation of a voluntary PEIS to evaluate procedures and processes for the NWP program. The PEIS will not address the impacts of any specific NWPs. The PEIS is not a legally required EIS. The Council of Environmental Quality's regulations at 50 CFR 1506.1(c) do not prohibit the Corps from issuing the NWPs prior to completing the voluntary PEIS. The issuance of the NWPs will not preclude the ability of the Corps to modify the NWP program or modify individual NWPs in accordance with any need for changes identified in the PEIS. The Corps is in compliance with NEPA because a FONSI for the NWP program was issued on June 23, 1998, and the Corps issues decision documents, including EAs, for each NWP when the NWP is issued, reissued, or modified. Specific comments concerning the PEIS will be addressed through the PEIS process. Jurisdictional Issues In response to the August 9, 2001, Federal Register notice, we received numerous comments concerning the scope of the Corps regulatory authority. These comments addressed issues such as excavation activities in waters of the United States, isolated waters, and ephemeral streams as waters of the United States. One commenter stated that the Corps should develop regulations that accurately reflect the regulatory exemptions for excavation because all maintenance activities associated with any existing structures or fill are exempt from Section 404 permit requirements. One commenter stated that the definition of ``loss of waters of the United States'' in the NWPs should be clarified to exclude excavation. As an example, this commenter said that if an activity involves non-jurisdictional excavation and temporary stockpiling of excavated material, those activities should not be included in the measurement of ``loss of waters of the United States''. In the January 17, 2001, issue of the Federal Register (66 FR 4550), we promulgated a final rule that revised the Clean Water Act regulatory definition of the term ``discharge of dredged material'' to address recent Court decisions. It is important to note that not all excavation activities in waters of the United States result only in incidental fallback into waters of the United States. Excavation activities that result in the redeposit of dredged material into waters of the United States, other than incidental fallback, require a Section 404 permit. Excavated material that is temporarily stockpiled in waters of the United States before it is removed to a permanent deposit area requires a Section 404 permit. We have retained the excavation language in the new and modified NWPs and the definition of ``loss of waters of the United States'' because some of these activities may be authorized by NWPs. All excavation activities in navigable waters of the United States require Section 10 permits, even if those excavation activities result only in incidental fallback into Section 10 waters. NWPs issued under Section 10 of the Rivers and Harbors Act may authorize excavation activities in navigable waters of the United States. Two commenters indicated that the NWPs should be modified to ensure compliance with the recent Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers et al. decision (U.S. Supreme Court No. 99-1178). The Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers et al. decision related to the scope of CWA jurisdiction over non-navigable isolated intrastate waters. The NWPs do not establish jurisdiction that does not otherwise exist. They only authorize activities that require a permit. If an activity does not require a permit, the NWPs do not create a requirement for a permit. If an activity does require a permit and complies with the terms and conditions of an NWP, that activity may be authorized by the NWP. A couple of commenters suggested that the Corps needs to improve its definition of ordinary high water mark (OHWM) because the current definition, which is based on physical evidence, does not provide any criteria regarding the frequency of flow necessary to establish an OHWM. These commenters stated that Corps personnel use the outermost banks to identify OHWMs, regardless of how frequently flows actually inundate the area between banks. Another commenter stated that Congress did not intend to extend Federal jurisdiction to discharges of dredge or fill material into areas that are ordinarily dry. This commenter indicated that a Corps district is asserting jurisdiction up to the limits of the 25-year floodplain. This commenter also suggested that the Corps limit its jurisdiction to areas with an OHWM within a less frequently flooded floodplain and that areas outside of the 1 to 5 year floodplain should not be considered to be within the OHWMs. The Corps agrees that we should look at improving the definition of the OHWM. This will be the subject of a separate review. However, no schedule has been developed for this review. The frequency and duration at which water must be present to develop an OHWM has not been established for the Corps regulatory program. District engineers will use their judgment on a case-by-case basis to determine whether an OHWM is present. The criteria used to identify an OHWM are listed in 33 CFR 328.3(e). Procedural Comments One commenter said that it was unreasonable to: (1) Expect the public to travel to a public hearing to provide comments on the August 9, 2001, proposal in a government building in Washington DC; (2) schedule only one public hearing; (3) expect public comments to reach the Corps in a timely manner when the Federal Register notice had only a physical address for receiving public comments; and (4) expect the public to receive updated information regarding the rescheduling of the public hearing because of computer viruses and the absence of phone numbers or e-mail addresses in the Federal Register notice. This commenter also stated that it was not reasonable to expect public comments on proposed NWP regional conditions to be submitted in a timely manner because the physical addresses published in the August 9, 2001, Federal Register notice contained errors, the deadline for public comment on the regional conditions was not published in the Federal Register, and the comment period for proposed regional conditions preceded the [[Page 2027]] deadline for public comment published in the Federal Register notice. This commenter said that future public notices by the Corps should include an electronic mail address, a physical address, and a telephone number for submitting of non-electronic comments. This commenter also asserted that additional public hearings should be conducted throughout the country to provide adequate opportunities for the general public to provide public comment prior to the reissuance and modification of the NWPs. In response to the August 9, 2001, Federal Register notice announcing the proposed changes to the NWPs, we received over 2,100 comments and had 19 people attend the public hearing in Washington, DC. We believe that the level of participation is consistent with other proposals. We understand that the events on September 11, 2001, has affected the general public and we have made reasonable efforts to accommodate the public. In response to these events, we postponed and rescheduled the September 12, 2001, public hearing and extended the 45- day comment period by 15 days. The new date of the public hearing and the extension of the comment period were announced on our web page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg