[Federal Register Volume 63, Number 140 (Wednesday, July 22, 1998)]
[Notices]
[Pages 39276-39280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19495]
[[Page 39276]]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
Public Notice Concerning Changes to Nationwide Permit 26
AGENCY: U.S. Army Corps of Engineers, DoD.
ACTION: Final notification.
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SUMMARY: In the November 26, 1997, Federal Register, the U.S. Army
Corps of Engineers requested comments on three changes that were made
to nationwide permit (NWP) 26 and published in the December 13, 1996,
Federal Register. This was done in response to a court order issued on
October 27, 1997. The Corps requested comments on the following three
changes to NWP 26: (1) The expiration of NWP 26 on December 13, 1998;
(2) the prohibition against filling or excavating more than 500 linear
feet of stream bed under NWP 26; and (3) the prohibition against using
other NWPs with NWP 26 to authorize the loss of more than 3 acres of
waters of the United States.
The Corps of Engineers is giving final notice that NWP 26 is being
retained as published in the Federal Register on Friday, December 13,
1996 (61 FR 65874-65922) with one exception. The Corps has proposed to
extend the expiration date of NWP 26 to March 28, 1998 (63 FR 36040-
36078).
EFFECTIVE DATE: July 22, 1998.
FOR FURTHER INFORMATION CONTACT: Write to the Chief of Engineers, U.S.
Army Corps of Engineers, ATTN: CECW-OR, Washington, D.C. 20314-1000,
or, contact Mr. Sam Collinson, Regulatory Branch, Office of the Chief
of Engineers at (202) 761-0199.
SUPPLEMENTARY INFORMATION:
Background
In the June 17, 1996 (61 FR 30780), Federal Register, the U.S. Army
Corps of Engineers published a notice requesting comments on the
issuance, reissuance and modification of the Corps of Engineers
nationwide permits (NWPs) and announced a public hearing to invite the
public to provide comments on the NWPs. In that notice, the Corps
proposed changes to several NWPs including several changes to NWP 26.
However, it did not specifically request comments on limiting the
filling or excavation of stream beds to no more than 500 linear feet,
restricting the use of other NWPs with NWP 26 to limit adverse effects
to waters of the United States to 3 acres for a single and complete
project, or issuing NWP 26 for a period shorter than 5 years, which is
the legal maximum limit for any NWP in accordance with Section 404(e)
of the Clean Water Act.
In response to the June 17, 1996, Federal Register Notice, the
Corps received over 500 comments concerning NWP 26. Based on comments
from the public and other agencies, as well as the Corps internal
review of the implementation of NWP 26 over the past five years,
several changes were made to NWP 26 to ensure that it would comply with
the legal requirements of the Clean Water Act. The changes were
published in the Federal Register on December 13, 1996 (61 FR 65874-
65922) and became effective on February 11, 1997. On March 6, 1997, a
lawsuit was filed by the National Association of Home Builders,
objecting to the three changes noted above.
The Corps believes that the changes made to NWP 26 were promulgated
in full compliance with all legal requirements of the Clean Water Act.
However, in view of the public interest in the changes and to avoid the
time and expense of litigation, the Corps volunteered to seek comments
on the three changes. Accordingly, on October 27, 1997, a court order
was issued remanding the action to the Corps to request public comments
on the three changes to NWP 26 described above.
The November 26, 1997 (62 FR 63224), Federal Register notice was
published and comments were accepted until February 26, 1998.
Summary of Comments
Over 3,000 comments were received. Approximately 2,700 were in
favor of the three changes and approximately 300 were against them.
Approximately two thirds of the commenters specifically addressed the
three changes to indicate their approval or disapproval while others
simply expressed favor or disfavor towards NWP 26 in general. Of those
specifically addressing each change, all, except a very few (less than
10) indicated that they either favored or disfavored all three of the
changes, (i.e., very few had split opinions about the changes).
Of those in favor of the changes, 190 represented environmental,
civic, lake or watershed districts or other organizations or state
agencies. Many individual commenters stated that they were members of
the National Wildlife Federation or of the Ohio Bass Federation. Of
those opposed to the changes, approximately 244 represented groups that
are members of the National Association of Home Builders and other
building, design, realty, or mining organizations.
Response to Specific Comments
I. General
A. Compliance With Section 404(e) of the Clean Water Act (Section
404(e))
Most of the commenters opposed to the changes stated that the three
changes are contrary to Section 404(e). They believe Section 404(e)
indicates that it was the intent of Congress for the Corps to develop
and maintain a streamlined regulatory process for projects that have
minimal adverse effects. However, many of the commenters that support
the changes stated that, in its earlier form, NWP 26 was contrary to
CWA 404(e). Section 404(e), in its entirety, reads:
(e)(1) In carrying out his functions relating to the discharge of
dredged or fill material under this section, the Secretary [of the
Army] may, after notice and opportunity for public hearing, issue
general permits on a State, regional, or nationwide basis for any
category of activities involving discharges of dredged or fill material
if the Secretary determines that the activities in such category are
similar in nature, will cause only minimal adverse environmental
effects when performed separately, and will have only minimal
cumulative adverse effect on the environment. Any general permit issued
under this subsection shall (A) be based on the guidance described in
subsection (b)(1) of this section, and (B) set forth the requirements
and standards which shall apply to any activity authorized by such
general permit.
(2) No general permit issued under this subsection shall be for a
period of more than five years after the date of its issuance and such
general permit may be revoked or modified by the Secretary if, after
opportunity for public hearing, the Secretary determines that the
activities authorized by such general permit have an adverse impact on
the environment or such activities are more appropriately authorized by
individual permits.
While the Corps agrees that a streamlined process is essential for
both the public and the agency, Section 404(e) does not guarantee a
particular form of streamlined process. Section 404(e) sets forth two
important terms: ``minimal adverse effects'' and ``similar in nature'',
but does not define either. During the past twenty years there have
been many changes that affect how we interpret them. There have been
advancements in our understanding of the functions of aquatic
resources, including wetlands, and changes in the types of projects
that are most common.
[[Page 39277]]
Neither wetland science nor wetland regulation are static disciplines.
NWP 26 was first developed in 1977, when the Corps Section 404
jurisdiction was extended from traditional navigable waters to all
waters of the U.S. At that time, the blanket authorization of work
above headwaters and in isolated waters, with discretionary authority
to revoke or modify specific activities, was a practical means of
managing the suddenly increased workload. Later, in 1984, when it had
become apparent that very large tracts of waters of the U.S. could be
impacted, NWP 26 was capped at 10 acres. Since that time, it has become
evident that headwaters and isolated waters of the U.S., including
wetlands, have greater values and functions in support of the overall
aquatic ecosystem than previously recognized. This was addressed by the
National Academy of Sciences in their 1995 report: Wetlands:
Characteristics and Boundaries. It has also become apparent that, in
some watersheds, urban developments that individually impact ten or
less acres of wetlands, can cumulatively have adverse effects on water
storage and water purification capacity. Given these changes in our
knowledge base and in the types of projects that NWP 26 is being used
for, the Corps believes that reducing the NWP 26 cap to 3 acres is
warranted if we are to assure that only minimal adverse effects on the
aquatic environment are resulting from its application.
The term ``similar in nature'' has been the subject of much
discussion and controversy. Some, particularly those opposed to changes
to NWP 26, believe it means activities that are similar to each other
by virtue of the fact that they are fill activities and they all have
minimal adverse effects. Others, including many of those who support
the changes made to NWP 26, believe it has a much narrower meaning:
projects for the same purpose conducted in a similar manner such as
fill for a road, fill for an individual residence, fill in support of
cranberry operations, etc. In addition, it has been posed that similar
may refer to the size of the area impacted, e.g. fill up to \1/3\ acre,
fill up to 2 acres, etc., independent of purpose.
Some of the commenters opposed to the changes suggested that since
the 500-foot and 3-acre limitations have been placed on NWP 26 to
assure that it will not result in more than minimal adverse effects, it
should no longer be necessary to phase it out altogether.
The Corps sees several advantages in moving to a new set of
activity-specific NWPs. It will remove the question as to whether an
NWP is authorizing activities that are similar in nature. It will allow
us to tailor special conditions to similar types of activities, rather
than ``one size fits all''. It will also facilitate regionalization of
the NWPs to best protect the valuable resources found in each district
while maintaining the Corps ability to expeditiously authorize
activities with minimal effects on the aquatic environment. (For
additional discussion of ``minimal adverse effect'' and ``similar in
nature'', see the preamble to the NWPs published in the Federal
Register on December 13, 1996.)
B. Workload
Almost all the commenters who were opposed to the changes expressed
concern about how the Corps workload would be affected and, therefore,
the Corps ability to respond to applicants in a reasonable amount of
time. In December, 1996, the Corps estimated that the changes to NWP 26
(that became effective February 11, 1997) would result in approximately
7,500 additional pre-construction notifications (PCNs) each year.
However, data indicated that most would be for 1 acre or less of fill
and therefore would be Corps-only PCNs. In addition, it was estimated
that there would be a 10% increase in the annual number of individual
permits (IPs). It is not possible to look at data since February, 1997,
and determine if those estimates were accurate because the change in
the total number of PCNs and of IPs has been influenced by several
factors, not known in December, 1996, rather than just the changes made
to NWP 26. For example: The ``Tulloch rule'' (regulation of discharges
incidental to excavation) was suspended for approximately 6 months
during Fiscal Year (FY) 1997; several districts implemented new
regional general permits during the same period; some applicants
deferred work in order to understand the new NWPs; etc. We do know that
the total number of IPs was lower, rather than higher, in FY 1997
(after the changes) than in FY 1996 (before the changes):
FY 1996: 5,040 IPs, 38,476 written NWP authorizations
FY 1997: 4,697 IPs 39,883 written NWP authorizations
C. Complex Regulatory System
Commenters opposed to the changes stated that these changes are
part of a trend towards more complicated regulations. The Corps
recognizes that this is occurring. It is a result of continuing work to
fine-tune the NWPs so that, frequently-occurring, minimal adverse
effect activities are expeditiously permitted, while activities that
may have more than minimal adverse effects are more carefully
scrutinized. It is also a result of applying permit terms and
conditions that are specific to similar activities rather than ``one
size fits all''.
D. Was This a Good Faith Notice?
Some of the commenters opposed to the changes stated that they
believe the Corps requested comments on these three changes merely to
avoid litigation and had no intention of seriously considering them.
The Corps believes that the changes were promulgated in compliance with
all legal requirements and, after review of the comments received, has
concluded that a retraction of the changes is not warranted. However,
all the comments received were carefully considered and we have
obtained additional valuable information about the public's concerns
and highlighted areas where we need to be more clear or provide more
detail about the intent of NWPs and/or the special conditions that
apply to them. This will be reflected in the proposed NWPs we are
developing to go into effect when NWP 26 expires. The proposed NWPs
were described in the July 1, 1998, FR (63 Federal Register 36040-
36078).
E. The Corps Does Not Have a Good Tracking System
Many of the commenters who support the changes stated that the true
impacts of NWP 26 cannot be ascertained because the Corps does not have
an effective way to track them. The Corps has collected and reviewed
data for all permit authorizations for many years to assist in making
program-wide determinations and NWP decisions in particular. Data
gathering has become progressively more sophisticated as additional
districts become automated. Since May, 1997, we have collected
additional data for all NWPs, and specifically for NWP 26, to ensure
that we have a good understanding of where it is being used, how often,
and for what types of projects.
F. NWP 26 Allows Fill for Development Without Regulatory Review,
Analysis of Alternatives, Public Notification or Opportunity for Public
Comment
It is the purpose of the nationwide permit program to streamline
review of, and decisions for, proposed projects. To that end,
alternatives analysis, public notification and opportunity for public
comment take place at the time the NWPs are issued, i.e., usually every
five years. Activities authorized by NWP 26 requiring a PCN are
reviewed by the Corps and evaluated for potential impacts to
particularly sensitive
[[Page 39278]]
resources, on-site avoidance and minimization of impacts, and
compliance with general and special conditions. When the Corps receives
a PCN, it can take discretionary authority to require an individual
permit, if the Corps believes a more detailed evaluation is required.
In practice, even those activities not requiring a PCN are often
reviewed in the same manner as those that require it. In some cases,
the applicant requests a review; in others, the initial proposed
project requires a PCN but is subsequently reduced in scope. Moreover,
the Corps believes that NWPs with regional conditions protect the
aquatic environment by motivating applicants to reduce impacts to the
extent practicable in order to receive a quick decision.
II. Expiration of NWP 26 on December 13, 1998
A. Why Set an Expiration Date?
Many commenters opposed to the changes asked why it is necessary to
set an expiration date for NWP 26. They recommended that it be left in
effect until the replacement NWPs are ready. They doubted the Corps
ability to have new NWPs ready by December 13, 1998, and wanted to
avoid a period of time with neither in effect. The Corps believes it is
important to set a date not only as a goal for the Corps to conclude
the process, but for applicants' ability to make plans. However, the
coordination process to develop new and modified NWPs has taken longer
than expected resulting in delay in the date of publication of the
proposed new and modified nationwide permits. The Corps wants to ensure
that there is adequate time to effectively involve other agencies and
the public in a new regional conditioning process. Therefore,
concurrent with the Corps July 1, 1998, publication in the Federal
Register, the Corps proposed extension of the expiration date of NWP 26
to March 28, 1999. Comments on this matter will be received until July
31, 1998, after which the Corps will make a decision on whether to
extend the expiration date for NWP 26.
B. Decreased Flexibility and Predictability; Loss of ``Catch-all'' NWP
Many commenters opposed to the changes believe that they will
result in decreased flexibility and predictability. In the short term,
there may be reduced predictability as applicants and agencies
transition to a new set of NWPs. It is the Corps goal to increase
consistency and predictability, as well as prioritizing efforts based
on aquatic functions and values, by removing the artificial distinction
that currently exists between headwaters and isolated waters versus
other waters of the United States. There can be a very different level
of review for similar projects depending on which type of water they
are located in. This change will provide for a similar process for
similar activities regardless of whether they are located above or
below the headwaters point.
Some commenters referred to loss of ``permit certainty''. It should
be noted that existence of an NWP is not a guarantee that a permit will
be issued. The project will be evaluated and if appropriate conditions
are met, authorization can be granted in a streamlined manner. The
Corps believes that most projects that now qualify for an NWP will
continue to qualify for an NWP after NWP 26 expires, although the
specific form of the NWP may change and there may be additional
conditions related to the specific type of activity.
The Corps has gathered information from all its district offices
about the types of projects that NWP 26 is used to authorize and most
will be addressed by the new NWPs. Project types that occur frequently
only in a given region, and have only minimal adverse effects, may be
more appropriately addressed by regional general permits issued by
individual Corps districts.
C. Burden on Transportation Projects
Several commenters from transportation agencies and from
consultants who work with them stated that the 2-year expiration of NWP
26 would be particularly burdensome for transportation projects. They
stated that transportation agencies often work on a 5-year, or longer,
plan and need to know what the regulatory framework will be over that
length of time. They also stated they would have increased costs
because they would not be able to review the new NWPs in time to design
their projects to meet new conditions and also meet advertisement and
contracting schedules. The NWP regulations at 33 CFR 330.6(b) state
that ``activities which have commenced (i.e., are under construction)
or are under contract to commence in reliance upon an NWP will remain
authorized provided the activity is completed within twelve months of
the date of an NWP's expiration, modification or revocation''. For most
projects, a year is sufficient time for project completion, however, if
it is determined that particular transportation projects need a longer
transition period, this can be addressed by Corps Districts on a case-
by-case basis through expedited review as individual permits. However,
as noted above, we believe that, in most cases, projects that now
qualify for NWP 26, will continue to qualify for an NWP after NWP 26
expires, although the specific form and conditions of the NWP may
change.
D. Regulation of Isolated Wetlands
Several of the commenters who were concerned about the expiration
of NWP 26 referred to a December 23, 1997, decision of the U.S. Court
of Appeals for the Fourth District regarding Section 404 jurisdiction
over isolated waters. They requested that the expiration of NWP 26 be
delayed until the issue of regulation of isolated wetlands is resolved.
That decision, in the case of United States v. Wilson, 133 F.3d 251
(4th Cir. 1997) pertains to how a link is established between isolated
water bodies and interstate or foreign commerce. The ultimate impact of
that decision, if any, on Section 404 jurisdiction will occur
independently of the existence of NWP 26 or other NWPs. The expiration
of NWP 26 will not change the Corps jurisdiction in isolated waters,
but rather when the Corps evaluates and authorizes projects in such
waters.
E. Programmatic General Permits
Several of the commenters who were opposed to the replacement of
NWP 26 with activity-specific NWPs made a comparison to programmatic
general permits. These commenters believe the Corps is mis-interpreting
the meaning of ``activities similar in nature'' because programmatic
general permits routinely authorize many different types of activities.
The difference between programmatic general permits and other general
permits is that programmatic general permits are based on the existence
of a Federal, State or local regulation that duplicates that of the
Corps and authorizes several specific activities, each of which is
similar in nature. Other general permits are based on a singular
specific activity. Instead of a single programmatic general permit the
Corps could issue several separate general permits, each based on the
specific activities in the Federal, state, or local program. However,
the Corps believes this would involve additional and unnecessary
paperwork and confusion for the regulated public.
F. Regulatory Flexibility Act
In its comments, the National Association of Home Builders stated
that the Corps should have conducted a regulatory flexibility analysis,
in conjunction with the modifications to NWP 26, as required by the
Small Business Regulatory Enforcement
[[Page 39279]]
Fairness Act which is part of the Regulatory Flexibility Act. Such an
analysis would develop and examine alternatives that minimize impacts
on small business and would describe steps taken by the agency to
minimize adverse effects to small business. The Corps believes that
this requirement does not apply to modification of NWPs. The NAHB's
letter referred to Section 603(a) of the RFA, which provides that
whenever an agency is required by section 553 of the Administrative
Procedures Act, or any other law, to publish general notice of proposed
rulemaking for any proposed rule, it must conduct a flexibility
analysis. However, the NWPs are permits, similar to individual and
regional general permits; they are not regulations (rules) and
therefore would not fall under this requirement. The Corps NWP
regulations at 33 CFR Part 330 are in compliance with the RFA and the
Corps believes that the NWPs are also in compliance with the RFA.
Indeed, the purpose of the NWPs is to minimize unnecessary adverse
effects on the regulated public and the entire review process focuses
on identification and consideration of alternatives for authorizing
activities with minimal adverse effects.
III. Prohibition Against Filling More Than 500 Linear Feet of
Stream Bed
A. Consistency
In the December 13, 1996, Federal Register, the Corps stated that
500 feet was chosen as a cutoff point for consistency with NWPs 12 and
13. Most of the commenters opposed to the changes, pointed out that,
under NWPs 12 and 13, reaching a length of 500 feet of impact triggers
a PCN while under NWP 26 it triggers an IP. The Corps meant that the
actual length was chosen to be consistent with the length in NWPS 12
and 13. It is recognized that the prohibition is more restrictive than
the PCN requirement for NWPs 12 and 13. This matter will be reviewed in
conjunction with the issuance of the new, activity specific, NWPs that
will become effective when NWP 26 expires.
B. Work in Areas Much Smaller Than One Third Acre Will Be Precluded
Many of the commenters opposed to the 500-foot limit noted that a
500-foot length of a narrow stream bed or waterway could result in
individual permit review of an impact area well below the 1/3-acre PCN
threshold and far from the 3-acre limit that exists for NWP 26. In
these cases, the degree of impact may be disproportionate to the
acreage involved. For example, filling a 5-foot wide stream bed over a
distance of O.5 mile would result in a loss of 0.30 acre of stream bed.
Under acreage limits, alone, a PCN would not be required, yet the work
could result in more than minimal adverse effects if the stream served
important spawning habitat functions. Therefore, the Corps believes it
has a responsibility to review those projects more closely as long as
specific activities are undefined. We are continuing to collect data
and will review this limitation in the activity-specific NWPs that will
replace NWP 26.
C. Definition of Stream Bed
Almost all the commenters opposed to the 500-foot limit indicated
that the Corps should distinguish between different types of streams
and should provide clear definition of a stream. They also encouraged
the Corps to take into consideration the characteristics of the
stream's drainage basin and stream bed hydrology. They expressed
concern that the southwestern region of the U.S. would be unduly
burdened by this restriction. Finally, they cautioned against use of
the ``ordinary high water mark'' (OHWM) for determining existence of a
stream in that region (many dry runs have an OHWM, yet carry water only
after heavy rain events).
In the December 13, 1996, preamble, the term ``loss of waters of
the U.S.'' was defined differently for the linear limitation for
streambed than for the acreage limitation. For the acreage limitation,
the term includes filling, excavation, drainage, and flooding impacts.
For the 500 linear-foot limitation, the preamble specifically
distinguishes the impacts to be considered as activities ``directly
affecting (filling or excavating) more than 500 linear feet of the
stream bed of creeks or streams''. When determining the 500-foot
limitation, the Corps will evaluate the length of filling or excavating
in the stream bed (within the ordinary high water mark). The term
``stream bed'' was meant to capture water bodies that normally have
flowing water. This would include all perennial streams and many, but
not all, intermittent streams. In deciding whether to apply the
restriction to an intermittent stream, the Corps would consider whether
the level of impact was minimal by applying professional judgement,
considering the characteristics of the drainage basin and stream bed
hydrology, etc. This determination should not be confused with a
determination of jurisdiction.
IV. Use of NWP 26 With Other NWP's Cannot Exceed 3 Acres of Impact
A. Limitation vs Prohibition
Many of the comment letters, both those in support and those
opposed to the changes to NWP 26, included statements indicating that
the commenters might not be making the distinction between limitation
and prohibition of multiple use of NWPs for one single and complete
project (commonly referred to as ``stacking''). The Corps has not
prohibited the multiple use of other NWPs with NWP 26 to authorize a
single and complete project. However, when multiple NWPs are used, the
total acreage is limited to 3 acres. In addition, notification is
required for projects where any NWP 12 through 40 is used with another
NWP 12 through 40. This is not a prohibition of stacking; rather,
stacking is allowed within the stated limits and conditions.
B. Unreasonable Assumption
Many of the commenters opposed to the changes stated that it is not
reasonable to assume that two or more project components, each with
minimal adverse effects on its own, will automatically add up to more
than minimal adverse effects when put together. The Corps does not
believe that two or more minimal adverse effect projects always add up
to greater than minimal adverse effects. Rather, we recognize that the
potential exists and therefore, there should be a mechanism (i.e., the
PCN) to assure evaluation of each case. In the case of NWP 26, we also
believe that a limit of 3 acres is appropriate to ensure that there can
be equitable use of the NWP by members of the public while maintaining
minimal cumulative adverse effects.
C. Contrary to Sec. 330.6
Many of the commenters opposed to the changes stated that the
stacking limitation is contrary to 33 CFR 330.6(c). However, that
section reads, in its entirety:
Two or more different NWPs can be combined to authorize a ``single
and complete project'' as defined at 33 CFR 330.2(I). However, the same
NWP cannot be used more than once for a single and complete project.
That paragraph simply says that multiple use is acceptable; it does
not say that it is mandatory that it be allowed in every case; nor does
it make any statement about what type of conditions may be placed on
use of multiple NWPs.
[[Page 39280]]
D. Hindrance of Well-planned Developments
Several commenters opposed to the limitations placed on NWP 26
stated that the new limits will discourage developers from proposing
well-planned developments. They believe that, in order to qualify for
an NWP under the lower limits, developers will present a larger number
of smaller projects as ``single and complete'' rather than a more
genuine, larger, single and complete project such as could be done with
allowance for up to 10 acres of fill. Others indicated that developers
would make less effort to ``avoid and minimize'' at the outset. Once
they determined they would have to apply for an individual permit
anyway, they would start out by requesting as much wetland fill as they
might wish. Both of these scenarios are possible with the previous or
current limits of NWP 26. The Corps doesn't believe that this would
encourage developers to design projects this way. It is incumbent on
the Corps to evaluate if a project is truly ``single and complete'' or
is, rather, the first of several components of a larger single and
complete project. In the same way, the Corps must determine if
appropriate avoidance and minimization has been conducted and that the
adverse effects are minimal. The Corps is considering this in more
detail in the NWPs proposed to replace NWP 26.
E. Need for an Upper Limit
Several commenters opposed to the changes stated that an upper
limit should not be necessary since a PCN is required any time more
than one NWP 12 through 40 is applied to a single and complete project.
Some of the same commenters suggested that there be provisions allowing
for 3 acres to be exceeded for the most-often-used combinations of
NWPs. As stated above, based on current knowledge of wetland science
and of the types of projects proposed nationwide, the Corps believes
that to ensure that adverse effects are minimal we, usually, need to
maintain an upper acreage limit of 3 acres to projects authorized under
one or more NWPs. However, a limit of 10 acres has been proposed for
master planned developments in the activity-specific NWPs proposed to
replace NWP 26 (63 FR 36040-36078).
V. Conclusion
Based on our review of the comments we have concluded that the 3
modifications:(1) the expiration of NWP 26 on December 13, 1998; (2)
the prohibition against filling or excavating more than 500 linear feet
of stream bed under NWP 26; and (3) the prohibition against using other
NWPs with NWP 26 to authorize the loss of more than 3 acres of waters
of the United States, we made regarding NWP 26 are appropriate and
should not be changed, with one exception. We have proposed to extend
the expiration date of NWP 26 to March 28,1999, to ensure that there is
adequate time to effectively involve other agencies and the public in
the development of regional conditions for the new and modified,
activity-specific, NWPs and to ensure that those NWPs are in place at
the time NWP 26 expires.
Dated: July 17, 1998.
Charles M. Hess,
Chief, Operations Division, Directorate of Civil Works.
[FR Doc. 98-19495 Filed 7-21-98; 8:45 am]
BILLING CODE 3710-92-P
