[Federal Register Volume 63, Number 198 (Wednesday, October 14, 1998)]
[Notices]
[Pages 55095-55099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27407]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
Proposal to Issue and Modify Nationwide Permits
AGENCY: U.S. Army Corps of Engineers, DoD.
ACTION: Notice of Intent and request for comments.
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SUMMARY: To further ensure that the proposed nationwide permits (NWPs)
published in the July 1, 1998, Federal Register would only authorize
activities that have minimal adverse environmental effects on the
aquatic environment, the Corps is proposing additional changes to those
proposed NWPs. For example, the Corps is announcing its decision to
withdraw the proposed NWP B for master planned development and
proposing the addition of a restriction on the use of certain NWP's in
the 100 year Floodplain. We are proposing to exclude NWPs in designated
critical resource waters and in impaired waters. In addition, the Corps
has revised its
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schedule for developing the NWPs to provide for additional public
comment. This will result in a delay in the schedule for issuing the
new and revised NWPs. Consequently, the Corps is also announcing its
decision to delay the expiration of NWP 26, so that it will not expire
before the proposed new and revised NWPs are issued. The revised
schedule provides for the new and revised NWPs to be issued and for NWP
26 to expire on September 15, 1999.
DATES: Comments on these proposed changes to the proposed nationwide
permits must be received by November 30, 1998.
ADDRESSES: HQUSACE, CECW-OR, Washington, D.C. 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr. David Olson or Mr. Sam Collinson,
CECW-OR, at (202) 761-0199 or http://www.usace.army.mil/inet/functions/
cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION:
Background
On July 1,1998, the Army Corps of Engineers provided notice (FR
Vol. 63, No. 126, p. 36040) of proposed changes to its Nationwide
General Permit Program. The public comment period on the Corps proposal
closed on August 31, 1998. That notice responded to the Corps 1996
commitment that it would phase out Nationwide permit 26 (NWP 26), which
authorized discharges into headwaters and isolated wetlands, and
replace it with a set of ``activity based'' NWPs. This decision is
consistent with the Corps goal of providing necessary fairness and
flexibility in the Regulatory Program while improving environmental
protection. In its July 1, 1998 notice, the Corps proposed to replace
NWP 26 by issuing six new NWPs and to modify six existing NWPs to
become effective when NWP 26 expired.
One of the new NWPs initially proposed by the Corps was NWP B,
which was designed to authorize discharges in waters of the United
States associated with construction of Master Planned Developments. The
proposed permit would apply to the construction of residential,
commercial, and industrial developments that include plans for the
complete long-term restoration and protection of aquatic resources. The
Corps objective in proposing NWP B was to encourage comprehensive
planning of developments that completely integrate restoration,
enhancement and long term protection of the aquatic environment. As
proposed, NWP B would authorize discharges associated with the
construction or expansion of master planned developments affecting up
to ten acres of non-tidal waters, excluding non-tidal wetlands
contiguous to tidal wetlands.
The July notice also announced the initiation of a process to
develop regional conditions for the new NWPs. Consistent with the
requirements of the Clean Water Act to effectively protect the Nation's
water resources, the Corps designed this process to identify additional
regional limitations and restrictions on the use of the new NWPs to
ensure that adverse effects on the aquatic environment authorized by
the replacement NWPs are minimal. Regional conditions, such as limits
on the use of the new NWPs to protect environmentally sensitive waters
or restrictions on the timing of permitted actions to avoid impacts to
spawning fish or migrating waterfowl, are being developed by Corps
Districts in coordination with other federal and state agencies and the
public. The process to develop regional conditions is currently
underway and is to be completed before the new and modified NWPs are
made final.
Another major emphasis for the Corps is to ensure that the public
is provided an effective opportunity to participate fully in the
process to develop replacement permits for NWP 26, including the
opportunity for involvement in the regional conditioning process. The
original schedule provided for two National notices in the Federal
Register, including the July 1, 1998, notice seeking public comment on
the Corps proposal, and a scheduled December, 1998, notice to provide a
response to public comments and to announce the Corps final package of
new and modified NWPs to take effect in March, 1999. In addition, Corps
Districts are also publishing public notices on a District-wide basis
to facilitate public participation in the regional conditioning
process. The Corps has conducted public hearings and public meetings
nationwide to provide for additional public input and to answer
questions regarding the proposal.
Supplement to the July 1, 1998 Nationwide Permit Proposal
Since the Corps published its July 1, 1998, notice and request for
public comments on the proposal to issue new NWPs and modify existing
NWPs to replace the expiring NWP 26, the Corps has decided to make
several alterations to that original proposal and to seek comments on
proposed new conditions limiting the applicability of the replacement
permits in critical resource waters and in impaired waters. In
addition, the Corps has determined that the public should be provided
an additional opportunity for participation in the process of
developing replacement permits, and is providing the revised schedule
in an appendix at the end of this document.
1. Withdraw Proposal to Issue Nationwide Permit B
After careful consideration of the initial public and agency
comments, and our original goals and objectives in proposing NWP B for
discharges associated with Master Planned Developments, the Corps has
decided to withdraw this proposed nationwide permit. There are a number
of factors relevant to this decision. The Corps is concerned, at this
time, that without additional analysis regarding appropriate terms and
conditions for this proposed NWP, that the 10-acre limit may be too
high. While we continue to support the goal of encouraging development
that is planned and designed for the long-term protection of the
Nation's valuable aquatic resources, discussions to date with Corps
field staff and public comments indicate that there is substantial
confusion regarding NWP B. The Corps may, after further evaluation,
consider reproposing, at a future date, a NWP that is more completely
developed and conditioned.
2. Exclusion of Floodplains From the Replacement NWPs
The Corps is proposing to modify the applicability of the
replacement NWPs by excluding their use in authorizing permanent above
grade wetland fills in waters of the United States located within the
100-year floodplain as defined by the Federal Emergency Management
Agency (FEMA) and identified on FEMA's Flood Insurance Rate Maps.
A fundamental aspect of the Corps mission is to protect public
health and safety by reducing the loss of life and property caused by
flooding, to safeguard sources of drinking water supplies, and to
protect and restore the natural functions of the Nation's floodplains.
The Corps Challenge 21 Initiative as well as Executive Order 11988 on
Floodplains recognize the critical need to ensure that Federal agency
actions emphasize efforts to reduce the potential for the loss of life
and property by flooding and to increase opportunities for the
restoration of historically altered floodplains.
FEMA has brought to the Corps attention the serious implications of
further reductions of flood storage capacity within the 100-year
floodplain.
[[Page 55097]]
The potential risks to life and property, as well as the economic
implications for homeowners, businesses, and state and local
governments, clearly indicate the importance of limiting the use of
NWPs for permanent above grade wetland fills in the 100-year
floodplain.
Consistent with the shared goals and responsibilities that the
Corps and FEMA have for reducing flood damages, the Corps believes that
most activities in the100-year floodplain should not be authorized by
NWPs. This includes commercial and residential developments, and mining
and stormwater detention pond activities that result in permanent above
grade wetland fills. It is our belief that such activities do result in
permanent above grade fills and will be subject to this limitation. The
Corps recognizes, however, that other activities, such as boat ramps,
mooring buoys and stream restoration projects must be by definition
within the 100-year floodplain and generally will have little impact on
flooding. Such activities will continue to be subject to authorization
by NWP. The Corps is requesting public comment on this proposal,
including recommendations on the applicability of this restriction on
existing and proposed NWPs.
3. Exclusion for Designated Critical Resource Waters
The Clinton Administration's recently developed Clean Water Action
Plan provides a blueprint for protecting the Nation's vital water
resources and achieving the statutory goals that Congress has set forth
in the Clean Water Act. The Corps is a full partner in implementing the
Clean Water Action Plan, which fulfills the mandates of the Clean Water
Act through a series of steps to reduce public health threats, improve
the stewardship of natural resources, and strengthen polluted runoff
controls. To ensure consistency of NWPs with this initiative and with
the specific Clean Water Act requirement that activities permitted
through NWPs have minimal adverse environmental effects, it is
important to ensure that activities approved under the Nationwide
Permit Program avoid, to the maximum practicable extent, potential
adverse environmental effects on waters that are recognized as critical
resource waters. Such waters may include, for example, Outstanding
Natural Resource Waters, National Wild and Scenic Rivers, and State
Ecological Reserves.
Accordingly, the Corps is proposing to exclude the use of NWPs in
certain State or Federally designated critical resource waters and
their adjacent wetlands. The Corps is requesting public comments on
this proposal and specifically solicits the public's input on which
designated waters should be subject to the exclusion. Further, comments
are requested on which, if any, NWPs should not be subject to this
exclusion. For example, certain activities authorized by NWP, such as
mooring buoys, may have no discernable effect on the designated
critical resource waters. The public will have an opportunity, through
the final Federal Register notice, to comment on any proposed
exceptions and those waters proposed for exclusion.
4. Exclusion for Impaired Waters
A critical impetus for the development of the Administration's
Clean Water Action Plan was the recognition that despite the efforts of
25 years of progress under the Clean Water Act, 40 percent of the
Nation's surveyed waters do not meet the goals Congress set forth in
the Act. The Plan promotes initiatives by the States to identify its
impaired waters, and to develop, in coordination with Federal partners,
including the Corps, unified assessments and response plans to restore
the health of these waters.
In many cases, the impaired status of certain open waters like
lakes, rivers and streams, is directly related to historic losses of
wetlands in a particular watershed. Similarly, the impairment or loss
of numerous drinking water aquifers is attributable to the loss of
freshwater storage provided by wetlands. In these cases, the Corps
believes that use of some of the NWPs may undermine efforts to restore
impaired waters and aquifers to a healthy condition, particularly where
the impairment can be related to historical loss of waters, including
wetlands, from filling those waters in a watershed.
The Corps is proposing to limit the use of NWPs in wetlands
identified with waters and aquifers that have been identified by the
States as impaired. The Corps is requesting suggestions on the criteria
for determining or identifying impaired waters. For example, waters
identified as impaired through the Clean Water Act section 303(d)
process may provide one such basis for exclusion. The Corps is
requesting public comments on this proposal, particularly with regard
to how such impaired waters or aquifers should be identified for
purposes of this restriction on the use of the new NWPs. The Corps is
also seeking comments on criteria the Corps would use to limit use of
NWPs in certain impaired waters, including how this proposal could more
effectively respond to State prerogatives such as the section 401 water
quality certification process. In addition, comments are requested on
which, if any, NWPs should not be subject to this limitation. For
example, NWP 27 may be used to restore impaired streams and wetlands.
5. Additional Opportunity for Public Participation
The Corps recognizes the critical role of the public in the
development of the replacement NWPs and seeks to ensure that public
involvement is effectively promoted throughout the development process.
After the Corps has reviewed the comments on the proposed new and
revised NWPs published in the July 1, 1998, notice, reviewed the
comments on the proposed changes published in this notice, and upon
completion of the draft regional conditions, the Corps will publish the
final NWPs in the Federal Register. Based on these draft final NWPs,
the states will have 60 days to make their Clean Water Act Section 401
Water Quality Certification and State Coastal Zone decisions, including
state regional conditions.
The Corps believes it is important to provide the public with an
opportunity to review and comment on a complete NWP package that
includes: the final set of NWPs and national conditions, the final
regional conditions, and the additional State conditions. Therefore,
the Corps has decided to publish an additional Federal Register notice
seeking public comment on the final version of the replacement NWPs,
including the final Corps and state regional conditions. There will be
a 45-day comment period, after which the Corps will publish the final
NWPs, including any changes as a result of consideration of comments
received on that Federal Register notice. Should the Corps make any
changes that would materially affect the state 401 or CZM actions, the
state would be provided an additional opportunity to modify its action.
The decision to add an additional Federal Register notice providing
for additional public comment will extend the process to complete and
implement the new and revised NWPs. Our goal remains to move this
entire process forward in a timely manner so that final improvements to
the NWP Program can be implemented as soon as possible. Further, the
Corps remains committed to replacing NWP 26. It is, however, important
that we continue the use of NWP 26 until the replacement permits are
issued and in effect. To that end and based on our review of comments
received in response to the proposed
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extension of NWP 26 beyond December 13, 1998, as published in the July
1, 1998, Federal Register, we have decided to extend NWP 26 to
September 15, 1999. Our decision document for this decision, including
our response to the public comments, is available in the Office of the
Chief of Engineers at the address above and on the Corps homepage at
the Internet address provided above.
Dated: October 7, 1998.
Approved:
Russell L. Fuhrman,
Major General, U.S. Army, Director of Civil Works.
Appendix--1999 Nationwide Permit Milestones
BILLING CODE 3710-92-P
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[FR Doc. 98-27407 Filed 10-13-98; 8:45 am]
BILLING CODE 3710-92-C
