[Federal Register: March 9, 2000 (Volume 65, Number 47)]
[Notices]
[Page 12817-12899]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09mr00-188]

[[Page 12817]]

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Part III

Department of Defense

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Department of the Army, Corps of Engineers

Final Notice of Issuance and Modification of Nationwide Permits; Notice

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers


Final Notice of Issuance and Modification of Nationwide Permits

AGENCY: Army Corps of Engineers, DoD.

ACTION: Final notice.

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SUMMARY: The Corps of Engineers (Corps) is issuing 5 new Nationwide
Permits (NWPs) and modifying 6 existing NWPs to replace NWP 26 which
expires on June 5, 2000. The Corps is also modifying nine NWP general
conditions and adding two new NWP general conditions. The new NWP
general conditions will increase protection of designated critical
resource waters and waters of the United States within 100-year
floodplains. In December 1996, the Corps decided to replace NWP 26,
which authorizes discharges of dredged or fill material into headwaters
and isolated waters of the United States, with activity-specific NWPs.
The new and modified NWPs authorize many of the same activities that
NWP 26 authorized, but the new and modified NWPs are activity-specific,
with terms and conditions to ensure that these activities result in
minimal adverse effects on the aquatic environment. The new and
modified NWPs will substantially increase protection of the aquatic
environment, while efficiently authorizing activities with minimal
adverse effects on the aquatic environment. The maximum acreage limits
of most of the new and modified NWPs is \1/2\ acre. Most of the new and
modified NWPs require notification to the district engineer for
activities that result in the loss of greater than \1/10\ acre of
waters of the United States. This notice also constitutes the Corps
application to States, Tribes, and the Environmental Protection Agency
(EPA) for Section 401 water quality certification (WQC) and Coastal
Zone Management Act (CZMA) consistency determinations. These agencies
have 90 days to determine if the new and modified NWPs meet state or
Tribal water quality standards and are consistent with state coastal
zone management plans.

DATES: The new and modified NWPs and general conditions will become
effective on June 5, 2000. The expiration date for NWP 26 is June 5,
2000.

ADDRESSES: HQUSACE, ATTN: CECW-OR, 20 Massachusetts Avenue, NW,
Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson or Mr. Sam Collinson
at (202) 761-0199 or access the Corps of Engineers Regulatory Home Page
at: http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.

SUPPLEMENTARY INFORMATION:

Background

    In the December 13, 1996, issue of the Federal Register (61 FR
65874) the Corps reissued NWP 26 for a period of two years and
announced its intention to replace NWP 26 with activity-specific NWPs.
NWP 26 authorizes discharges of dredged or fill material into
headwaters and isolated waters, provided the discharge does not result
in the loss of greater than 3 acres of waters of the United States or
500 linear feet of stream bed. Headwaters are non-tidal streams, lakes,
and impoundments that are part of a surface tributary system to
interstate or navigable waters of the United States with an average
annual flow of less than 5 cubic feet per second. Isolated waters are
non-tidal waters of the United States that are not part of a surface
tributary system to interstate or navigable waters and are not adjacent
to such surface tributary systems to interstate or navigable waters.
    In the July 1, 1998, issue of the Federal Register (63 FR 36040)
the Corps published its initial proposal to replace NWP 26, including 6
new NWPs, modifying 6 existing NWPs, modifying 6 NWP general
conditions, and adding one new NWP general condition. In the October
14, 1998, issue of the Federal Register (63 FR 55095), the Corps
published a supplementary proposal to limit the use of the proposed new
and modified NWPs in 100-year floodplains, impaired waters, and
designated critical resource waters. In the October 14, 1998, Federal
Register notice, the Corps also announced the withdrawal of the
proposed NWP for master planned development activities and the
extension of the expiration date of NWP 26 to September 15, 1999. The
Corps also announced, in the October 14, 1998, Federal Register notice,
its intent to solicit additional comments on the proposed new and
modified NWPs and regional conditions proposed by Corps districts.
    As a result of the comments received in response to the July 1,
1998, and October 14, 1998, Federal Register notices, the Corps made
changes to the proposed NWPs and general conditions. The Corps also
modified and reproposed the three new NWP general conditions to limit
the use of NWPs in 100-year floodplains, impaired waters, and
designated critical resource waters. The draft NWPs and general
conditions were published in the July 21, 1999, issue of the Federal
Register (64 FR 39252) for a 45-day comment period. Concurrent with
this Federal Register notice, Corps districts proposed the latest
drafts of their proposed regional conditions for the new and modified
NWPs. In the September 3, 1999, issue of the Federal Register (64 FR
48386), the Corps announced that the comment period for the draft NWPs
and general conditions was extended an additional 30 days to provide a
75-day comment period. The comment period for the July 21, 1999,
Federal Register notice ended on October 7, 1999. In the September 3,
1999, Federal Register notice, the Corps also announced that the
expiration date of NWP 26 was extended to January 5, 2000.
    As a result of the number of substantial comments received in
response to the July 21, 1999, Federal Register notice and the need for
additional time to review those comments and develop the final NWPs and
general conditions, the Corps issued another Federal Register notice on
December 15, 1999 (64 FR 69994). This Federal Register notice announced
a revised expiration date for NWP 26 and the process for accepting NWP
26 PCNs. The expiration date for NWP 26 was extended to April 14, 2000.
    Since the schedule published in the December 15, 1999, Federal
Register notice has changed, we are extending the expiration date of
NWP 26 to June 5, 2000. NWP 26 PCNs submitted on or before March 9,
2000, (whether required or not) will be reviewed under the existing
terms and conditions of NWPs. If those activities are authorized by NWP
26, their authorizations will be valid until February 11, 2002. If the
activity is under construction or under contract prior to February 11,
2002, the permittee will have 12 additional months to complete the
authorized activity. NWP 26 PCNs for activities that require
notification which are submitted after March 9, 2000, will be reviewed
under the new and modified NWPs or other types of DA authorization,
such as individual permits. NWP 26 activities that do not require a PCN
are authorized by NWP 26 until June 5, 2000. For those NWP 26
activities that do not require notification, the permittee has 12
months to complete the work if construction begins or is under contract
before June 5, 2000.
    The terms and limits of the new and modified NWPs are intended to
authorize activities that have minimal adverse effects on the aquatic
environment, individually and cumulatively. Most of the new NWPs
authorize activities in non-tidal waters of the United States,
excluding non-tidal wetlands adjacent to tidal waters. The

[[Page 12819]]

acreage limit for most of the new and modified NWPs is \1/2\ acre. For
the new and modified NWPs, the Corps has established pre-construction
notification (PCN) thresholds to ensure that any activity that
potentially may have more than minimal adverse effects on the aquatic
environment is reviewed by a district engineer on a case-by-case basis.
Most of the new NWPs require submission of a PCN for discharges of
dredged or fill material resulting in the loss of greater than \1/10\
acre of waters of the United States. Regional conditions may be added
to the NWPs by division engineers to lower notification thresholds.
    The new and modified NWPs issued today will become effective on
June 5, 2000. This Federal Register notice begins the 90-day Clean
Water Act Section 401 water quality certification (WQC) and Coastal
Zone Management Act (CZMA) consistency determination processes. Because
of the changes to the proposed new and modified NWPs, including the
general conditions, we have increased the normal 60-day WQC and CZMA
consistency determination processes to 90 days. During this 90-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 July 21, 1999, Federal Register notice, we
received over 1,700 comments. We reviewed and fully considered all of
these comments. Most of the commenters expressed opposition to the
proposed NWPs, but a few commenters indicated support for these NWPs.
One commenter stated that NWP 26 should be retained without any
changes. A number of commenters support the current NWP program,
because data collected by the Corps during Fiscal Year (FY) 1997
indicates that there are net gains in aquatic resources because of the
Corps mitigation requirements. These commenters indicated that this net
gain demonstrates that the current NWP program results only in minimal
adverse effects on the aquatic environment.
    After considering the comments received in response to the July 21,
1999, Federal Register notice, we have made several important changes
to the new and modified NWPs. For most of these NWPs, we have
established a \1/2\ acre limit. Notification to the district engineer
will be required for most activities that result in the loss of greater
than \1/10\ acre of waters of the United States. For NWPs 39, 40, 42,
and 43, we have imposed a 300 linear foot limit for filling and
excavating stream beds. We have also increased the notification review
period to 45 days. We have revised nine general conditions and added
two new general conditions. The new NWP general conditions limit
activities in designated critical resource waters and fills in waters
of the United States within 100-year floodplains. All above-grade fill
under NWPs 29, 39, 40, 42, 43, and 44 is prohibited within the FEMA-
mapped 100-year floodplain below the headwaters of any stream. Within
the headwaters, above-grade fill is prohibited within the FEMA-mapped
regulatory floodway, and any above-grade fill in the flood fringe must
meet FEMA standards.
    These new restrictions on use of the NWPs will substantially
increase the protection of the Nation's aquatic environment. These
revised NWPs continue a trend by the Corps of Engineers of enhancing
the protection of the aquatic environment through the NWP program. In
1977 the predecessor to NWP 26 authorized unlimited fill in headwaters
and isolated waters without any notification of the Corps. In 1984 the
Corps established a maximum project specific impact limit of 10 acres
and a notification of the Corps for any impact greater than 1 acre. In
1996, we reduced these project specific limits to 3 acres maximum and
\1/3\ acre for notification of the Corps. To further ensure that the
NWP program properly protects the aquatic environment, the Corps is
conducting a Programmatic Environmental Impact Statement, which will be
completed in early 2001. To ensure full protection of endangered
species, the Corps is formally consulting with the U.S. Fish and
Wildlife Service and the National Marine Fisheries Service on the NWP
program.
    All of these substantial improvements will increase costs to
applicants to some degree and will increase the funding needed by the
Corps to maintain our current level of service to the public. Based on
a report prepared by the Corps Institute for Water Resources (IWR) in
response to the Corps FY 2000 Appropriations Act, the changes to the
NWP program announced today will increase direct costs for permit
applicants by about $20 million per year. Further, based on the IWR
report, the Corps would need about $6 million in additional funding to
maintain current levels of service to the public. We believe the
changes are necessary to ensure the statutory requirement that general
permits, including NWPs, will have no more than minimal adverse effects
on the aquatic environment.

II. General Comments

    In the following discussion, where the comments and responses were
the same as for the July 21, 1999, Federal Register notice, we referred
to the July 21, 1999, Federal Register notice instead of repeating
those responses.
    Many commenters objected to the proposed NWPs for the following
reasons: (1) The proposed NWPs are too complex; (2) the proposed NWPs
are contrary to the Congressional intent of Section 404(e) of the Clean
Water Act; (3) the proposed NWPs are contrary to the Administration's
1993 Wetlands Plan, which states that Federal regulatory programs
should be fair, flexible, and effective; (4) the proposed NWPs are
contrary to the 1998 Clean Water Action Plan, which states that
duplication between Federal, state, and local agencies and Tribal
governments should be reduced wherever possible; (5) the conditions of
these NWPs will cause many activities with minimal adverse effects on
the aquatic environment to be processed as individual permits; and (6)
these NWPs will result in unnecessary and costly burdens on the
regulated public, increase delays, and increase the Corps workload
without providing any benefits.
    We have reduced the complexity of these NWPs as much as possible by
making the scope of applicable waters for most of the new NWPs the same
and establishing similar PCN thresholds. In addition, we have
eliminated the indexed acreage limits from NWPs 39 and 40 and
established a \1/2\ acre limit for these NWPs. However, some complexity
is unavoidable because different activities in waters of the United
States do not have the same effects on the aquatic environment and each
NWP must have different conditions to address those dissimilar impacts.
The new and modified NWPs are conditioned to ensure that only those
activities that have minimal adverse effects on the aquatic environment
are authorized by these permits.
    The new and modified NWPs are not contrary to Section 404(e) of the
Clean Water Act, because each NWP authorizes activities that are
similar in nature, with terms and conditions to ensure that those NWPs
authorize only activities with minimal adverse effects on the aquatic
environment. These NWPs still provide an expedited authorization
process when compared to the standard permit process, because the
district engineer must respond to the applicant within 45 days of the
receipt date for a complete preconstruction

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notification (PCN). The 45-day PCN review period is shorter than the
average evaluation time for individual permits, which was 100 days in
FY 1999.
    The new and modified NWPs comply with the President's 1993 Wetlands
Plan, by allowing the Corps regulatory program to continue to provide
effective protection of wetlands and other aquatic resources and avoid
unnecessary impacts to private property, the regulated public, and the
aquatic environment. The new and modified NWPs, including the new and
modified general conditions, will more clearly address individual and
cumulative adverse effects on the aquatic environment and ensure that
those adverse effects are minimal. The new and modified NWPs address
specific applicant group needs and provide more predictability and
consistency to the regulated public. During the development of these
NWPs, we recognized the concerns of the natural resource agencies and
environmental interest groups for potential adverse effects on the
aquatic environment resulting from activities authorized by these NWPs
and the regulated public's need for certainty and flexibility in the
NWP program.
    Although certain aspects of the new and modified NWPs duplicate
existing Federal, state, and local agency programs, such duplication is
not contrary to the 1998 Clean Water Action Plan because it provides
additional protection for the aquatic environment. While some state and
local governments may address some of the same issues that are
addressed by the NWPs and general conditions, there are many areas of
the country where those issues are not addressed. Therefore, we believe
it is necessary to add certain conditions to the NWPs to address
potential adverse effects to the aquatic environment. For example,
General Condition 9 requires a water quality management plan for
certain NWP activities, unless the state or Tribal Section 401 agency
requires an adequate water quality management plan. If the state or
Tribe does not adequately address impacts to water quality through its
water quality certification process, the district engineer can require
additional measures such as stormwater management facilities and
vegetated buffers to protect water quality. There are circumstances
where the Corps needs to consider more stringent NWP requirements to
ensure that the adverse effects to the aquatic environment are minimal,
individually and cumulatively.
    We agree that the terms and conditions of the new and modified NWPs
may cause some activities with minimal adverse effects on the aquatic
environment to be subject to the individual permit process. It is
important to note that aquatic resource functions and values differ
greatly across the country. When developing NWPs that have national
applicability, there will be many parts of the country where the terms
and limits of the NWPs will not authorize some activities that have
minimal adverse effects on the aquatic environment. In these areas,
district engineers can issue regional general permits in the future to
provide expedited authorization for categories of activities with
minimal adverse effects on the aquatic environment.
    However, for six months after the publication date of the new and
modified NWPs, district engineers will not issue regional general
permits or letters of permission (LOPs) that explicitly authorize the
same activities as the new and modified NWPs. This six month period
will allow Corps districts to assess how effectively the new and
modified NWPs authorize activities with minimal adverse effects on the
aquatic environment, individually and cumulatively.
    As required by the Energy and Water Development Appropriations Act,
2000, we have conducted a study of the workload and compliance costs of
the NWPs, including the new general conditions, proposed in the July
21, 1999, Federal Register notice. The report for this study was
finalized in January 2000. This report is available on the Internet at
the Corps headquarters regulatory home page.
    The workload and compliance costs study determined that the
proposal published in the July 21, 1999, Federal Register would
increase the number of standard individual permit applications received
by the Corps by 4,429 per year. This and other workload increases would
result in direct compliance costs incurred by the regulated public by
an estimated $46 million annually. The study also examined indirect
compliance costs (i.e., opportunity costs) of the July 21, 1999,
proposal. The indirect compliance costs include the opportunity costs
that result from increases in permit processing times and an estimate
of foregone development value caused by the vegetated buffer
requirement. The study estimates that the processing times for standard
permits would steadily increase each year if the July 21, 1999,
proposal were to be implemented and Corps budget resources are not
increased. Within five years, the average standard permit processing
time and number of backlogged permit applications would increase three
to four times the levels measured in FY 1998.
    The study also examined an alternative replacement NWP package that
included lowering the acreage limit of the new and modified NWPs to \1/
2\ acre and withdrawing the three proposed new NWP general conditions.
The alternative replacement NWP package would result in 40% fewer
standard permit applications and 30% less direct compliance costs than
the July 21, 1999, proposal would. After five years, the standard
permit processing times and permit application backlog would be
approximately \1/2\ of that estimated for the proposal published in the
July 21, 1999, Federal Register.
    Many commenters objected to the Corps statement in the July 21,
1999, Federal Register notice that NWPs are optional permits, and that
if they do not want to comply with the terms and conditions of the
NWPs, then they can request an individual permit. Numerous commenters
indicated that the new and modified NWPs are likely to result in
decreased protection of the aquatic environment because of the higher
numbers of individual permits and a greater workload for the Corps that
would result if these NWPs were implemented as proposed. Some
commenters also stated that the new and modified NWPs would also result
in less protection of the aquatic environment because project
proponents would have less incentive to build projects with smaller
impacts to aquatic resources due to the strict acreage limits,
notification requirements, and conditions. In contrast, one commenter
said that developers will modify their projects to comply with the new
and modified NWPs. Another commenter said that the costs to the Corps
and regulated public that are imposed by the new and modified NWPs will
be offset by the additional environmental protection provided by those
NWPs.
    NWPs provide an expedited Corps permit process for activities that
have minimal adverse effects on the aquatic environment, individually
and cumulatively. The NWPs are conditioned to ensure that only
activities with minimal adverse effects are authorized. If a
prospective permittee cannot comply with all of the terms and
conditions of the NWPs, then he or she can request another form of
Department of the Army (DA) authorization, such as a regional general
permit or a standard individual permit.

[[Page 12821]]

    We believe that the terms and conditions of the new and modified
NWPs, including the \1/2\ acre limit and \1/10\ acre PCN threshold, are
substantially more protective of the aquatic environment. The terms and
conditions of these NWPs will ensure that only activities with minimal
adverse effects on the aquatic environment are authorized by NWPs. Many
project proponents will design their projects to comply with the \1/2\
acre limit so that they can qualify for an NWP and receive
authorization more quickly than they could through the standard permit
process.
    Many commenters stated that the new and modified NWPs would cause
more than minimal adverse effects on the aquatic environment,
individually and cumulatively. A few commenters said that the proposed
NWPs do not comply with the requirement that general permits authorize
only activities that are similar in nature. A number of commenters
objected to the NWPs, because they provide no opportunity for the
public to comment on individual projects.
    We have developed terms and conditions for the new and modified
NWPs to ensure that they authorize only those activities that result in
minimal individual or cumulative adverse effects on the aquatic
environment. The new and modified NWPs have PCN thresholds that require
prospective permittees to notify district engineers prior to conducting
activities that could result in more than minimal adverse effects. Most
of the new and modified NWPs require notification to district engineers
for discharges resulting in the loss of greater than \1/10\ acre of
waters of the United States. Division engineers can regionally
condition these NWPs to lower notification thresholds, protect high
value waters, or add additional restrictions to ensure that authorized
activities result only in minimal adverse effects. District engineers
will review PCNs on a case-by-case basis to determine if the adverse
effects of the proposed work are minimal. If the adverse effects of a
particular activity are more than minimal, the district engineer can
either add conditions to the NWP authorization to ensure that the
adverse effects on the aquatic environment are minimal or exercise
discretionary authority to require an individual permit for the
proposed work.
    Each of the new and modified NWPs authorizes activities that are
similar in nature, in full compliance with section 404(e) of the Clean
Water Act. This issue was discussed in detail in the July 21, 1999,
Federal Register notice (64 FR 39263), and we have not changed our
position on this matter.
    The intent of general permits, including NWPs, is to efficiently
authorize activities that have minimal adverse effects on the aquatic
environment. These activities are usually non-controversial, and would
generate few or no comments from the public if they were subject to the
standard permit process. Conducting full public interest reviews for
activities with minimal adverse effects on the aquatic environment
would substantially increase the Corps workload with little or no added
value for the aquatic environment.
    A large number of commenters objected to the proposed NWPs, stating
that the new and modified NWPs would result in significant wetland
losses. Many commenters said that the new and modified NWPs would
undermine the Administration's goal of net gain in wetland acreage
stated in the Clean Water Action Plan.
    The new and modified NWPs will not result in significant losses of
wetlands because they are conditioned to require prospective permittees
to avoid and minimize impacts to waters of the United States on-site to
the maximum extent practicable (see General Condition 19). In addition,
the \1/2\ acre limit will substantially reduce wetland losses.
Compensatory mitigation is often required for activities that require
notification to the district engineer, which offset losses of wetlands
and other aquatic habitats so that significant losses of wetlands do
not occur as a result of the NWP program.
    As discussed in the July 21, 1999, Federal Register notice, the NWP
program supports the Administration's goal of no net loss and is not
contrary to the goals of the Clean Water Action Plan.
    Several commenters objected to the proposed NWPs, stating that the
NWPs place too much reliance on the assertion of discretionary
authority by district engineers. They said that this process does not
provide adequate protection of the aquatic environment. Another
commenter stated that the proposed NWPs are inappropriately based on
the intent of the prospective permittee, instead of potential impacts
to aquatic resources. One commenter indicated that there is too much
overlap between the new and modified NWPs, which would be confusing to
permit applicants.
    We disagree with these commenters, because the notification process
allows case-by-case review of those activities that have the potential
for more than minimal adverse effects on the aquatic environment. If
the adverse effects of the proposed activity are more than minimal,
then the district engineer can either add special conditions to the NWP
authorization to ensure that the activity results in minimal adverse
effects or exercise discretionary authority and require an individual
permit. This process provides substantial protection for the aquatic
environment.
    The new and modified NWPs are activity-specific to satisfy the
requirements of section 404(e) of the Clean Water Act. These NWPs
address impacts to the aquatic environment, because they are limited to
certain types of waters and are conditioned to ensure that the adverse
effects resulting from the authorized work are minimal, individually
and cumulatively. Since these NWPs are activity-specific, they have to
reflect specific categories of work that are conducted by individuals
of certain occupations.
    Although there is some overlap between the activities authorized by
the new and modified NWPs, such redundancy is necessary because our
intent was to develop NWPs that authorize single and complete projects
generally without having to resort to using multiple NWPs. For
instance, NWP 39 authorizes most features of residential, commercial,
or institutional developments, including road crossings and stormwater
management facilities.
    Several commenters stated that the NWPs should only authorize
activities that are water dependent. One of these commenters said that
limiting the NWPs only to water dependent activities would result in a
regulatory program that is easier to administer and result in wetland
gains. Some commenters indicated that the proposed NWPs do not comply
with the Section 404(b)(1) guidelines.
    We addressed the issue of water dependency in the preamble of the
July 21, 1999, Federal Register notice and have not changed our
position on this issue. The new and modified NWPs comply fully with the
requirements for general permits in the Section 404(b)(1) guidelines
(see 40 CFR 230.7).
    A few commenters opposed the new and modified NWPs because they
said that the Corps has failed to define the term ``minimal effects''
in an understandable or meaningful way. Many commenters stated that the
minimal adverse effects criterion for the NWPs is too subjective and
that an assessment procedure that considers the size of impacts and
quality of waters must be used instead.
    The term ``minimal effect'' as it is used in the context of general
permits,

[[Page 12822]]

including NWPs, cannot be simply defined. The terms and conditions of
general permits are established so that those permits authorize most
activities that result in minimal adverse effects on the aquatic
environment. Preconstruction notifications are an important mechanism
to ensure compliance with the minimal adverse effect requirement. Case-
specific special conditions and regional general conditions are also
important for addressing site-specific and regional concerns for the
aquatic environment and ensuring that the NWPs authorize only
activities with minimal adverse effects. For activities that require
notification to the district engineer, the minimal adverse effects
determination requires consideration of site-specific factors, such as
the quality of waters that may be impacted by the proposed work, the
functions and values of those waters, the geographic setting of the
proposed work, and other factors. The minimal adverse effects criterion
must be subjective, due to the complexity of the analysis required.
    Two commenters suggested issuing the new NWPs with an expiration
date of February 11, 2002, so that these NWPs will expire on the same
day as the current NWPs. One commenter said that the new NWPs should be
reevaluated when the current NWPs are reevaluated to determine if the
use of all NWPs will result in more than minimal impacts. Two
commenters recommended allowing NWP 26 to expire in January 2000 and
not issuing the new NWPs until the next NWP reissuance in 2002. In the
interim, individual permits would be required for activities that do
not qualify for any of the current NWPs.
    The new and modified NWPs issued today will expire on June 5, 2005
(i.e., five years from their effective date). However, when the current
NWPs are proposed for reissuance in 2002, the new and modified NWPs are
likely to be part of that proposal, so that all of the NWPs will be on
the same five year cycle for review. We do not agree with the third
comment of the previous paragraph. Allowing NWP 26 to expire prior to
the effective date of the new and modified NWPs would be unfair to the
regulated public.
    Several commenters requested that the expiration date for NWP 26
should be extended to the expiration date of the current NWPs to ensure
that NWP 26 is available until the effective date of the new and
modified NWPs.
    We do not agree that it is necessary to extend the expiration date
of NWP 26 to February 11, 2002, because the new and modified NWPs will
become effective on June 5, 2000. Keeping NWP 26 in place while the new
and modified NWPs are effective would be contrary to the Corps goal of
replacing NWP 26 with activity-specific NWPs.
    One commenter suggested that the Corps clarify in this Federal
Register notice that activities authorized by NWP 26 prior to the
expiration date will continue to be authorized by NWP 26 for 12 months,
provided the permittee has commenced construction or is under contract
to commence construction. Another commenter recommended changing the
12-month grandfather provision for the NWPs to 24 months to provide
adequate time for the completion of transportation projects.
    A permittee who receives an NWP 26 authorization prior to the
expiration date will have up to 12 months to complete the authorized
activity, provided the permittee commences construction, or is under
contract to commence construction, before the date NWP 26 expires (see
33 CFR 330.6(b)). Except as indicated below, this provision applies to
all NWP authorizations unless discretionary authority has been
exercised on a case-by-case basis to modify, suspend, or revoke the NWP
authorization in accordance with 33 CFR 330.4(e) and 33 CFR 330.5(c) or
(d). We do not agree that it is necessary to increase the time period
for the grandfathering provision from 12 months to 24 months. However,
anyone who submitted a NWP 26 PCN on or before March 9, 2000, will have
until February 11, 2003, to complete the work, provided the permittee
receives an NWP 26 verification and has commenced construction or
signed a construction contract prior to February 11, 2002.

Jurisdictional Issues

    In response to the July 21, 1999, Federal Register notice, we
received many comments concerning the scope of the Corps regulatory
authority. These comments addressed excavation activities in waters of
the United States and whether ephemeral streams, drainage ditches, and
certain other categories of waterbodies are waters of the United
States. Today's action addresses only NWPs, and in no way affects or
alters the geographic or activities-based jurisdiction of the CWA nor
is it intended to create new policy related to such jurisdiction.
    Many commenters said that the Corps is ignoring recent court
decisions by including excavation activities as regulated activities in
the text of the new and modified NWPs. These commenters cited the
recent decision by the United States Court of Appeals for the District
of Columbia which upheld the United States District Court for the
District of Columbia's decision in the American Mining Congress v.
Corps of Engineers lawsuit. This lawsuit challenged the Corps and EPA's
revised definition of ``discharge of dredged material'' that was
promulgated on August 25, 1993 (58 FR 45008). The revised definition of
``discharge of dredged material'' was overturned because the District
Court held that the rule was outside of the agencies' statutory
authority and contrary to the intent of Congress by asserting Clean
Water Act jurisdiction over activities where the only discharge
associated with the activity is ``incidental fallback.'' These
commenters requested that the Corps remove all references to excavation
activities from the new and modified NWPs. Two commenters stated that
the reference to excavation activities in the new and modified NWPs
requires project proponents to submit a notification to the Corps to
determine if a Corps permit is required. One commenter said that the
final NWPs should contain guidance that explains when excavation is a
regulated activity. This commenter also recommended that the Corps
clarify how excavation activities are included in the calculation of
acreage loss of waters of the United States, to determine if a
particular activity exceeds PCN thresholds or NWP acreage limits.
    The agencies revised their regulations on May 10, 1999, to respond
to the results of the American Mining Congress lawsuit (64 FR 25120).
It is important to recognize that not all excavation activities in
waters of the United States are conducted so that only incidental
fallback occurs. 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. For example, excavated material
may be temporarily stockpiled in waters of the United States before it
is removed. Excavation activities that result only in discharges
identified by the Corps as ``incidental fallback'' do not require a
Section 404 permit. However, all excavation activities in Section 10
navigable waters require Corps permits under section 10 of the Rivers
and Harbors Act of 1899. 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 excavation activities in Section 404 only
waters of the United States result in discharges that still

[[Page 12823]]

require a Section 404 permit. These activities may be authorized by
NWPs. NWPs issued under the Corps Section 10 authority also authorize
excavation activities in navigable waters of the United States. No
permit is required for excavation activities that do not meet the
definition of discharge of dredged or fill material. As with any
activity in waters of the United States, a landowner who is uncertain
whether their activity needs a permit may contact the Corps.
    Two commenters noted that a statement in the July 21, 1999, Federal
Register notice (64 FR 39276) concerning excavation activities is
inaccurate and misleading. This statement said that excavation
activities that result in the replacement of an aquatic area with dry
land or change the bottom elevation of a waterbody require a Section
404 permit. These commenters said that this statement is actually the
definition of ``fill material'' and that excavation cannot, by itself,
result in the replacement of an aquatic area with dry land or change
the bottom elevation of a waterbody.
    We agree that the statement in the Federal Register is inaccurate
and have included clarification concerning when excavation activities
require a Section 404 and/or a Section 10 permit from the Corps (see
the above discussion). Excavation activities can change the bottom
elevation of a waterbody by removing material and increasing the depth
of the waterbody. Increasing the depth of a waterbody without
associated discharges of dredged material other than incidental
fallback does not require a Section 404 permit, but a Section 10 permit
would be required if the activity is in Section 10 waters. However, an
excavation activity that involves redeposit of dredged material into
waters of the United States other than incidental fallback or involves
the discharge of fill material that increases the bottom elevation of a
waterbody or creates dry land requires a Section 404 permit (unless the
activity qualifies for a Section 404(f) exemption).
    A number of commenters stated that the Corps does not have
authority to regulate discharges into ephemeral streams because these
watercourses, by definition, contain water only briefly and therefore
are not waters of the United States. One of these commenters noted that
33 CFR 328.3 includes intermittent streams, but does not include
ephemeral streams. A few commenters remarked that the Corps has not
explained how an ordinary water mark can be present in a watercourse
that has water flow only during a short time after rain events. These
commenters assert that under ordinary circumstances, ephemeral
watercourses do not have flowing water and cannot develop an ordinary
high water mark (OHWM). They said that the Corps needs to define what
constitutes an ``ordinary flow'' in an ephemeral watercourse that
establishes an OHWM and what indicators are to be used to determine the
presence and location of the OHWM. In addition, these commenters stated
that the Corps cannot use peak flows and flood stages in lieu of
ordinary flows and the Corps cannot use cut banks, shelving, or debris
that is influenced only by peak flows or flooding.
    An ephemeral stream is a water of the United States, provided it
has an OHWM. An ephemeral stream that does not have an OHWM is not a
water of the United States. 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 use their judgement 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).
    Several commenters said that the Corps can only exercise
jurisdictional authority over those ephemeral waters that are
tributaries to waters of United States. These commenters said that the
low frequency of water flows in these watercourses requires the Corps
to define criteria and circumstances to determine whether ephemeral
watercourses are tributaries to waters of the United States. Some
commenters also stated that the Corps has not demonstrated how
ephemeral streams have any nexus to interstate commerce or how
discharges of dredged or fill material into those watercourses would
affect interstate commerce.
    We agree that ephemeral streams that are tributary to other waters
of the United States are also waters of the United States, as long as
they possess an OHWM. The upstream limit of waters of the United States
is the point where the OHWM is no longer perceptible (see 51 FR 41217).
Ephemeral streams that are part of an interstate surface tributary
system are waters of the United States, because they are an integral
part of that surface tributary system, which supports interstate
commerce.
    Three commenters stated that the proposed NWPs illegally assert
jurisdiction over drainage ditches. Three commenters objected to a
statement in the July 21, 1999, Federal Register notice that drainage
ditches constructed in waters of the United States remain waters of the
United States. These commenters said that if a drainage ditch converts
a water of United States to a non-jurisdictional upland, the drainage
ditch would not be a water of United States unless the area remains a
wetland or other type of water of United States. These commenters also
objected to the Corps assertion that non-tidal drainage ditches are
waters of the United States if they extend the OHWM of an existing
water of the United States. They said that this position is contrary to
preamble to November 13, 1986, final rule for the Corps regulatory
program (51 FR 41217) and that this change requires justification. One
commenter requested that the Corps clarify whether the entire ditch
becomes jurisdictional if the OHWM becomes extended within the ditch or
whether jurisdiction is extended only to that portion of the ditch that
develops an OHWM. Two commenters asked for clarification whether a
drainage ditch that runs through a series of uplands and waters of the
United States is jurisdictional. One commenter asked how an OHWM that
develops within a drainage ditch would be determined to be due to
ordinary flows, not peak flows or flooding.
    A drainage ditch constructed in a stream, wetland, or other water
of the United States remains a water of the United States, provided an
OHWM is still present. Since drainage ditches constructed in waters of
the United States are constructed either by channelizing a stream or
excavating the substrate to improve drainage, it is unlikely that the
drainage ditches will become dry land unless the hydrology is removed
by some other action. District engineers will determine, on a case-by-
case basis, whether a particular area is a water of the United States.
If the construction of a drainage ditch has legally converted the
entire area to dry land, then the area drained is not a water of the
United States, however, in most cases the drainage ditch would remain a
water of the United States.
    The statement that non-tidal drainage ditches are waters of the
United States if they extend the OHWM of an existing water of the
United States is consistent with the final rule published in the
November 13, 1986, Federal Register and applies to ditches constructed
in waters or that connect waters. Nothing in the NWP notice was
intended to change the November 13, 1986, Federal Register notice which
states that drainage ditches constructed entirely in upland areas
generally are not considered to be waters of the United States.
    Drainage ditches constructed in uplands that connect two waters of
the United States may be considered waters of the United States if
those ditches

[[Page 12824]]

constitute a surface water connection between those two waters of the
United States. As previously noted, drainage ditches constructed
entirely in uplands generally are not considered to be waters of the
United States. District engineers will use the criteria at 33 CFR
328.3(e) to determine the presence and extent of an OHWM that may have
developed in a drainage ditch.
    One commenter stated that the July 21, 1999, Federal Register
notice incorrectly asserts jurisdiction over farmed wetlands by
considering them to be waters of the United States and the Corps does
not have authority to require permits for discharges into these areas.
Another commenter said that the Corps does not have the authority to
regulate activities in isolated wetlands. Two commenters indicated that
the Corps contradicts its regulations concerning the construction and
maintenance of stormwater management facilities. These commenters
assert that the Corps regulations published in the November 13, 1986,
Federal Register state that detention and first flush basins are
generally not considered waters of the United States. One commenter
requested clear definitions of the terms ``waters of the United
States,'' ``navigable waters,'' and ``navigable waters of the United
States.''
    Farmed wetlands as defined under the Food Security Act are waters
of the United States provided they meet the criteria at 33 CFR 328.3.
In addition, those criteria further provide that prior converted
croplands are not waters of the United States. Isolated wetlands are
waters of the United States, provided they meet the criteria at 33 CFR
328.3. (Within the Fourth Circuit, isolated waters must be shown to
have an actual connection to interstate or foreign commerce.)
Stormwater management facilities constructed in waters of the United
States may, under certain circumstances, be considered waters of the
United States. The Corps has the discretion to determine on a case-by-
case basis whether or not a particular waterbody is a water of the
United States (see 51 FR 41217). The term ``waters of the United
States'' is defined at 33 CFR 328.3 and refers to the Corps Section 404
jurisdiction. The term ``navigable waters'' as used in Section 404 of
the Clean Water Act has the same meaning as ``waters of the United
States.'' The term ``navigable waters of the United States'' is defined
at 33 CFR part 329 and refers to the Corps Section 10 jurisdiction.
None of these definitions were changed by the proposed NWPs or these
final NWPs.

Procedural Comments

    Many commenters stated that the Corps was required to hold public
hearings on the draft NWPs proposed in the July 21, 1999, Federal
Register notice. Some of these commenters said that the draft NWPs,
especially the three proposed new NWP general conditions, represent a
substantial change from the proposed NWPs published in the July 1,
1998, Federal Register notice and that these changes warrant an
additional public hearing. Numerous commenters stated that the 75-day
comment period was inadequate to thoroughly review and comment on the
July 21, 1999, Federal Register notice. Some of these commenters said
that the comment period should be extended because many districts did
not post their draft regional conditions on their Internet home pages
quickly enough.
    We believe that we have fully complied with the public hearing
requirements of the Clean Water Act. After the publication of the July
1, 1998, Federal Register notice, public hearings on the proposed new
and modified NWPs were held across the country, including a public
hearing in Washington, DC on August 19, 1998. The proposal published in
the July 21, 1999, Federal Register was a modification of the original
July 1, 1998, proposal to replace NWP 26 with activity-specific NWPs.
    The 75-day comment period for the July 21, 1999, Federal Register
notice provided adequate time for the public to review and comment on
the draft NWPs. Within one week of the publication of the July 21,
1999, Federal Register notice, 31 out of 38 districts had posted their
draft regional conditions on their Internet home pages, which allowed
the public sufficient time to consider how the regional conditioning
process affected the proposed new and modified NWPs. All Corps
districts had posted their draft regional conditions on their Internet
home pages by September 3, 1999.
    A large number of commenters said that the Corps has completely
ignored the economic and workload implications of the new and modified
NWPs and general conditions proposed in the July 21, 1999, Federal
Register notice. These commenters indicated that the economic impacts
of this proposal would be substantial. Many commenters stated that the
new and modified NWPs should not be issued or implemented until an
economic and workload analysis study is completed.
    As required by the Energy and Water Development Appropriations Act,
2000, we have prepared, through the Institute for Water Resources
(IWR), a study of the workload and compliance costs that would be
incurred by the July 21, 1999, proposal. The study report will be
available on the Internet at the Corps headquarters regulatory home
page. This study demonstrated that the proposal published in the July
21, 1999, Federal Register would result in substantial increases in
workload and costs to the Corps and the regulated public. The proposed
new and modified NWPs, including the three proposed general conditions,
would result in a 50% increase in the number of standard permit
applications received by the Corps each year. The proposed new and
modified NWP package would increase the Corps costs for processing
permit applications at the current levels of service by $11.5 million
annually, nearly a 15% increase over FY 1998 program funding. In
addition, the July 21, 1999, proposal would also increase the direct
compliance costs incurred by the regulated public by $46 million
annually. In contrast, the modifications to the new and modified NWPs
issued today (i.e., the \1/2\ acre limit and the revised floodplain
condition) would result in impacts very similar to the IWR estimate for
a \1/2\ acre approach to the NWPs. That IWR estimate was 40% fewer
standard permit applications than the July 21, 1999, proposal and 30%
less in direct compliance costs. It is also important to note that the
modified NWPs being issued today will protect the aquatic environment
substantially better than the July 21, 1999, proposal would. These
final NWPs are also less complex than the proposed NWPs, which will
assist the regulated public.
    Many commenters stated that the proposed new and modified NWPs,
including the proposed general conditions, violate the Administrative
Procedures Act (APA). These commenters said that the Corps has failed
to provide an adequate administrative record and failed to demonstrate
that the proposed acreage limits and other restrictions are necessary
to provide protection for the aquatic environment. Some of these
commenters stated that the Corps must provide an environmental basis
for the acreage limits of the new and modified NWPs. Several commenters
said that the proposal to issue new and modified NWPs to replace NWP 26
falls under the jurisdiction of the APA, because these NWPs are an
agency statement of general applicability to implement, interpret, or
prescribe a law or policy. A number of commenters stated that the
proposed NWPs violate the APA because the schedule published in the

[[Page 12825]]

July 21, 1999, Federal Register notice implies that the decision to
issue these NWPs and new general conditions was predetermined and the
schedule did not include adequate time for the Corps to carefully
consider comments received in response to that notice.
    The new and modified NWPs issued today comply with Section 404(e),
which requires notice and opportunity for public hearing. The Corps
notice and comment process is virtually the same as the APA process. We
have prepared an adequate administrative record to justify the issuance
of these NWPs. In addition, we have fully considered all comments
received in response to the July 21, 1999, Federal Register notice to
determine the terms and conditions for the new and modified NWPs. This
included three extensions of the final NWP issuance in order to fully
and fairly consider all comments.
    The acreage limit for an NWP is established so that the NWP
authorizes most activities that result in minimal adverse effects on
the aquatic environment, individually or cumulatively. However, since
NWPs are issued for national applicability, the terms and conditions of
NWPs, including the acreage limits, must be restrictive enough to
ensure that the NWPs authorize only those activities with minimal
adverse effects on the aquatic environment, individually and
cumulatively, across the country. The NWPs also contain notification
requirements that provide district engineers with the opportunity to
review certain activities to determine if those activities will result
in minimal adverse effects on the aquatic environment. Aquatic resource
functions and values vary considerably across the country. Therefore,
the minimal adverse effects determination by Corps districts is based
site-specific or regional criteria.
    The acreage limits of the new and modified NWPs do not preclude any
proposed activity from qualifying for a DA permit. If a proposed
activity does not meet the terms and conditions of an NWP, then that
activity could be authorized by other forms of DA permits. Regional
general permits may be available to authorize certain activities that
have minimal adverse effects on the aquatic environment based on local
environmental conditions. The proposed work may also be authorized by
individual permits, including letters of permission, if the activity
involves more than minimal adverse effects on the aquatic environment.
    We recognize that there are specific activities or classes of
activities in areas of the country that will result in minimal adverse
effects on the aquatic environment, but exceed the acreage limits of
the new and modified NWPs. Corps districts can develop regional general
permits in the future to authorize these activities.
    Several commenters stated that the Corps is obligated to minimize
regulatory burdens on small businesses, as required by Small Business
Regulatory Enforcement Fairness Act of 1996. Two commenters said that
the Corps is not in compliance with the Regulatory Flexibility Act
because an ``initial regulatory flexibility analysis'' was not provided
in the Federal Register notice. One commenter indicated that the Corps
must comply with the Congressional Review Act. Another commenter said
that the July 21, 1999, proposal to issue new and modified NWPs does
not comply with Executive Order 12630, ``Governmental Actions and
Interference with Constitutionally Protected Property Rights,'' because
the Corps has not identified the takings implications of the proposed
NWPs.
    The new and modified NWPs comply with the Small Business Regulatory
Enforcement Fairness Act of 1996 because they provide an expedited
authorization for activities in waters of the United States that have
minimal adverse effects on the aquatic environment. We are not required
to provide an initial regulatory flexibility analysis because we
proposed to issue new and modified NWPs, not change our regulations.
The Corps believes it is not required to submit the final new and
modified NWPs to Congress pursuant to the Congressional Review Act, but
as a matter of comity, we will submit the final NWPs to Congress. The
new and modified NWPs will not result in the taking of private property
because the NWPs provide an expedited authorization process for certain
activities in waters of the United States that have minimal individual
and cumulative adverse effects on the aquatic environment but require a
Corps permit. If a proposed activity does not comply with the terms and
conditions of an NWP, then the project proponent can request another
form of DA permit, including regional general permits, letters of
permission, or individual permits. Therefore, there are no takings
implications for these NWPs.

General Terms and Limits of NWPs

    One commenter stated that the acreage limits for the new and
modified NWPs are too high. One commenter said that the NWPs should not
have an acreage limit greater than 1 acre. Other commenters recommended
maximum acreage limits of \1/3\ acre and \1/4\ acre. Several commenters
suggested higher acreage limits for NWP activities in ephemeral streams
located in the western United States. Two commenters said that the NWPs
should have lower acreage limits for activities in certain types of
wetlands, such as forested wetlands, playas, prairie potholes, vernal
pools, kettles, pocosins, and bogs. Two commenters opposed the use of
indexed acreage limits.
    We have fully considered comments concerning acreage limits for the
new and modified NWPs. To simplify the new and modified NWPs and ensure
that these NWPs still authorize only activities with minimal individual
and cumulative adverse effects on the aquatic environment, all of the
new NWPs, except for NWP 41, will have a \1/2\ acre limit. We have not
imposed a \1/2\ acre limit on NWP 41 because it only authorizes
activities that benefit the aquatic environment. The acreage limits for
specific NWPs are discussed in detail in the preamble discussions for
each NWP. Division engineers can regionally condition these NWPs to
lower acreage limits if there are specific concerns for the aquatic
environment in a particular part of the country. We do not agree that
there should be higher acreage limits on the NWPs for discharges of
dredged or fill material into ephemeral streams in the western states,
due to the national scope of the NWPs. However, Corps districts may
issue RGPs with larger acreage thresholds in any local situations where
they determine that the activity would result in no more than minimal
adverse effects, individually or cumulatively. Division engineers can
also regionally condition these NWPs to restrict or prohibit their use
in certain types of high value waters of the United States. We have
eliminated the indexed acreage limits from NWPs 39 and 40 because the
simple \1/2\ acre limit is a more effective way to ensure that these
NWPs authorize only activities with minimal adverse effects and the
vast majority of activities authorized by NWP 26 are below or slightly
above \1/2\ acre.
    Many commenters indicated that the PCN thresholds for the new and
modified NWPs should be \1/3\ acre, instead of \1/4\ acre. These
commenters believe the difference between these two notification
thresholds is too small to provide any value and that the lower PCN
threshold will increase the Corps workload without providing any
benefits. One commenter recommended providing more consistency in PCN
thresholds for the NWPs. Several commenters stated that PCNs should be

[[Page 12826]]

required for all activities authorized by NWPs and one commenter
remarked that PCNs should be required for all discharges into special
aquatic sites. One commenter said that lower acreage limits for the
NWPs should result in fewer PCN requirements, not a lowering of PCN
thresholds.
    To further ensure that the new NWPs authorize only activities with
minimal adverse effects on the aquatic environment, we have established
a \1/10\ acre PCN threshold for the new NWPs (except for NWP 41) and
retained the original PCN thresholds for impacts to open waters,
including streams. The notification threshold for NWP 14 has also been
lowered to \1/10\ acre. The \1/10\ acre PCN threshold will result in a
workload increase for Corps districts, but we believe that this
increase will be minor, since many permittees request written
verification of NWP authorizations, even when notification is not
required. We believe that the PCN thresholds in the new and modified
NWPs are consistent. There are circumstances, such as NWP 39 activities
that impact open waters, where we believe it is necessary to review all
proposed activities. However, we do not agree that is necessary to
require notification for all NWP activities because most minor
activities authorized by NWPs result in minimal adverse effects.
Division engineers can impose regional conditions on NWPs to lower PCN
thresholds in those geographic areas where there is the potential for
more than minimal adverse effects on the aquatic environment. We do not
agree that lower acreage limits should result in fewer PCN requirements
because the notification process is necessary to address activities
that might result in more than minimal adverse effects.
    Several commenters suggested adding PCN requirements for discharges
into ephemeral streams, not just perennial and intermittent streams,
because ephemeral streams are important in arid regions. One commenter
recommended reducing the 500 linear foot PCN threshold for perennial
and intermittent stream impacts to 200 linear feet. One commenter said
that PCNs should be required for all discharges into open waters to
allow district engineers to determine appropriate vegetated buffer
requirements.
    Except for those NWPs that require notification for all activities
or all discharges of dredged or fill material into open waters, we
believe that notification requirements for stream impacts should be
limited to perennial and intermittent streams, since discharges of
dredged or fill material into ephemeral streams are likely to result in
minimal adverse effects. In geographic areas where discharges of
dredged or fill material into ephemeral stream beds may result in more
than minimal adverse effects on the aquatic environment, division
engineers can regionally condition these NWPs to require notification
for these activities. For some of the new NWPs, we have replaced the
500 linear foot PCN threshold for stream bed impacts with a 300 linear
foot limit. Division engineers can impose regional conditions to
require a PCN threshold to address activities that may result in more
than minimal adverse effects. With the exception of NWP 39, we do not
agree that it is necessary to require notification for all discharges
of dredged or fill material into open waters to determine vegetated
buffer requirements. Vegetated buffers are not required for all
activities authorized by the NWPs. District engineers will determine on
a case-by-case basis when it is appropriate to require vegetated
buffers next to open waters.

Cumulative Impact Assessment and Data Collection

    Many commenters objected to the Corps position stated in the July
21, 1999, Federal Register notice that the Corps can monitor only those
cumulative adverse effects on the aquatic environment that result from
activities permitted by the Corps regulatory program. Some of these
commenters said that this position is contrary to the Clean Water Act
and recommended that the Corps utilize the definition of cumulative
impacts found in the regulations for the National Environment Policy
Act (NEPA). Numerous commenters asserted that cumulative impact
analysis should include both regulated and unregulated losses of
aquatic habitat within a geographic area. One commenter said that
cumulative impact analysis should include all activities that affect
water quality. Two commenters objected to the Corps statement in the
July 21, 1999, Federal Register notice that district engineers must
have clear, extensive, and unequivocal evidence that activities
regulated pursuant to section 404 of the Clean Water Act or section 10
of the Rivers and Harbors Act are causing more than minimal cumulative
adverse effects on the aquatic environment, not unregulated activities,
before revoking or suspending the use of NWPs. One commenter stated
that cumulative impact assessment should consider temporary and
permanent losses of waters of the United States in a different manner.
This commenter also remarked that the cumulative impact assessment must
also consider both losses of waters of the United States and
compensatory mitigation to determine the net cumulative adverse effects
on the aquatic environment.
    The Corps position in the July 21, 1999, Federal Register notice
concerning cumulative impact assessment is based on the statutory
requirements of Section 404(e) of the Clean Water Act. There are no
other references to cumulative adverse effects in Section 404 of the
Clean Water Act. The requirement for authorized activities to cause no
more than minimal adverse effects on the aquatic environment applies
only to general permits (including NWPs), not the entire Corps
regulatory program. This position is also supported by the regulations
for implementing the Section 404(b)(1) guidelines at 40 CFR 230.7.
These regulations state that activities authorized by general permits
can result only in minimal adverse effects on water quality and the
aquatic environment (see 40 CFR 230.7(a)(3)).
    The Corps scope of analysis for the purposes of NEPA is discussed
in 33 CFR part 325, appendix B. The Corps can only address the impacts
of the specific activity that requires a Department of the Army permit
and those portions of the activity over which the district engineer has
sufficient control and responsibility to warrant Federal review.
    The Corps does provide different consideration to temporary and
permanent losses of waters of the United States when assessing the
adverse effects of regulated activities on the aquatic environment. As
discussed in the NWP definition of ``loss of waters of the United
States,'' waters of the United States that are temporarily filled,
flooded, excavated, or drained, but restored after construction, are
not included in the measurement of loss of waters of the United States.
Therefore, temporary losses would not be included in the Corps
cumulative impact assessment since the affected areas would be restored
as waters of the United States. When assessing cumulative adverse
effects on the aquatic environment, the Corps also considers
compensatory mitigation for losses authorized by NWPs, because
compensatory mitigation is often required to offset losses of waters of
the United States and ensure that the activities authorized by NWPs
have minimal adverse effects. Corps districts assess cumulative impacts
on a watershed basis. Attempting to assess cumulative impacts across
the nation is not possible, or appropriate.

[[Page 12827]]

    Two commenters supported the Corps assertion that cumulative
impacts must be assessed on a watershed basis. One of these commenters
said that watersheds should be defined by the 8-digit watershed
cataloging units designated by the U.S. Geological Survey (USGS). Two
commenters requested that the Corps develop a method to quantify
potential cumulative and indirect impacts that will result from
activities authorized by NWPs in a watershed. Two commenters said that
district engineers must demonstrate that the use of NWPs in a watershed
or geographic area will not result in more than minimal adverse effects
on the aquatic environment.
    As discussed in the July 1, 1998, Federal Register notice, the
Corps utilizes the 8-digit hydrological unit codes developed by USGS to
identify watersheds for its data collection process. However, district
engineers can utilize subwatersheds within these hydrological units
when conducting cumulative impact assessments. The Corps does not have
the resources to develop a method to quantify potential cumulative and
indirect impacts that may result from activities authorized by NWPs. If
the division or district engineer determines that the use of NWPs to
authorize activities within a particular watershed or geographic area
will result in more than minimal individual or cumulative effects on
the aquatic environment, then he or she can modify, suspend, or revoke
those NWPs in that area (see 33 CFR 330.4). This is a determination
that must be made by districts as they administer the Corps regulatory
program in specific geographic areas.
    Two commenters said that the Corps should analyze the cumulative
impacts of the current NWPs and any NWPs that will be proposed in the
future before issuing the new and modified NWPs. These commenters
recommended that this analysis consider the efficiency of compensatory
mitigation. Two commenters objected to the Corps assertion that it
cannot make the individual and cumulative adverse effects determination
nationally.
    When the Corps issues or modifies an NWP, an environmental
assessment, a finding of no significant impact (FONSI), and if
necessary, an evaluation of compliance with the Section 404(b)(1)
guidelines is prepared for each NWP. These items are contained in one
document. This document includes an analysis of the cumulative impacts
that are expected to occur during the time the NWP is in effect. This
analysis also includes estimates of the amount of compensatory
mitigation that will be required to offset losses of waters of the
United States authorized by the NWP. We maintain our position that an
assessment of cumulative adverse effects that result from the use of
the NWPs cannot be made at the national level, and that the only
technically sound method to conduct this assessment is on a watershed
basis, through the district offices. Concurrent with the issuance of
the new and modified NWPs and the final decision documents for each of
the new and modified NWPs, division engineers will issue supplementary
decision documents that address the impacts of the NWPs in Corps
districts.
    Several commenters said that Corps record-keeping methods are
inadequate and that the Corps should issue quarterly public reports on
wetland losses and the status of compensatory mitigation. A number of
commenters recommended that the Corps establish a data collection
system that tracks various types of compensatory mitigation (i.e.,
creation, restoration, enhancement, preservation) and monitors
compliance with the goal of no net loss. Numerous commenters indicated
that the Corps needs to commit to stronger monitoring and enforcement
efforts.
    We do not have the resources to publish quarterly reports on
impacts to waters of the United States and compensatory mitigation at
this time. The data collection systems for most Corps districts do not
currently differentiate between the amounts of compensatory mitigation
provided through restoration, enhancement, creation, or preservation.
Instead, most districts track the total amount of compensatory
mitigation required for Corps permits. The effectiveness of
compensatory mitigation efforts is monitored by district engineers on a
case-by-case basis to the extent allowed by workload and personnel
resources. Therefore, we cannot collect this type of information for
all activities. We are committed to strong enforcement and monitoring
efforts, but enforcement and compliance efforts are limited to
available district resources. The Corps permit evaluation workload must
take precedence over enforcement and monitoring.

Compliance with the National Environmental Policy Act

    Several commenters stated that the proposed NWPs require an
Environmental Impact Statement (EIS). Two commenters objected to the
Corps statement in the July 21, 1999, Federal Register notice that the
NWP program does not require an EIS because the NWPs can only authorize
activities with minimal individual and cumulative adverse effects on
the aquatic environment.
    We maintain our position that the NWPs do not require an EIS, but
we are in the process of preparing a Programmatic Environmental Impact
Statement (PEIS) for the NWP program.
    A number of commenters indicated that the Corps needs to reevaluate
the Finding of No Significant Impact (FONSI) issued on June 23, 1998,
since the draft NWPs are substantially different from the NWPs proposed
in the July 1, 1998, Federal Register notice. These commenters said
that the three proposed new general conditions warrant reevaluation of
the FONSI.
    We do not agree that the FONSI issued on June 23, 1998, requires
revision. The FONSI issued on June 23, 1998, was a general statement of
findings for the NWP program. That FONSI did not address a specific set
of NWPs. The three proposed new general conditions are intended to
provide additional protection to the aquatic environment and their
implementation would not substantially change the scope of the FONSI
issued on June 23, 1998, or its findings.
    Two commenters said that the Corps should release or issue the
Environmental Assessments (EAs) for the new and modified NWPs before
those permits are issued so that the public can comment on those EAs.
These commenters stated that the EAs should also include regional
analyses in addition to the national analyses. One of these commenters
indicated that the EAs should contain analyses of potential impacts on
recreation, wildlife habitat, endangered species, cultural resources,
land use, and habitat degradation, as well as address cumulative
impacts that occur when an NWP is used with other NWPs. Another
commenter requested that the EAs assess the expansion of geographic
scope of the new NWPs, the amount of cumulative and individual impacts
that may be authorized by these NWPs, the types of waters that may be
adversely affected by the new and modified NWPs, and the functions of
those waters. Other commenters objected to the preliminary EAs, stating
that those EAs did not include an ecological rationale for the proposed
acreage limits.
    We do not agree that it was necessary to issue new preliminary EAs
for the draft NWPs proposed in the July 21, 1999, Federal Register
notice. We received few comments in response to the preliminary EAs
that were issued with the July 1, 1998, Federal Register

[[Page 12828]]

notice. Those individuals that commented on the preliminary EAs
requested that the Corps include an alternatives analysis in each EA.
We have included an alternatives analysis in each EA for the new and
modified NWPs. 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 include projected impacts to waters of the
United States that will occur through the use of these NWPs. 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. However, division engineers will be
issuing supplemental EAs that will address issues at the district
level.
    The final EAs for the new and modified NWPs have been substantially
modified from the preliminary EAs issued in conjunction with the July
1, 1998, Federal Register notice. The final EAs contain general
discussions of potential individual and cumulative impacts to the 20
public interest review factors at 33 CFR 320.4 and the factors in
Subparts C through F of the Section 404(b)(1) guidelines (40 CFR Part
230).
    In response to the July 21, 1999, Federal Register notice, some
commenters addressed the Programmatic Environmental Impact Statement
(PEIS) of the NWP program that the Corps is preparing. One commenter
supported the PEIS, but asserted that an EIS is required. Another
commenter stated that the PEIS is unwarranted and unnecessary. Many
commenters said that the Corps cannot finalize the NWPs before the PEIS
is completed.
    These issues concerning the PEIS were addressed in the July 21,
1999, Federal Register notice (see 64 FR 39265) and we have not changed
our position.

Compliance with the Endangered Species Act

    Two commenters stated that the proposed NWPs require Endangered
Species Act (ESA) Section 7 consultation. Three commenters asserted
that the proposed new and modified NWPs do not comply with ESA. One of
these commenters said that the Corps does not adequately address the
direct, secondary, and cumulative impacts on endangered and threatened
species that will result from activities authorized by the NWPs. This
commenter also stated that the Corps cannot rely on prospective
permittees to conduct adequate investigations to determine whether
endangered or threatened species or designated critical habitat occur
on the project site. Three commenters indicated that compliance with
ESA cannot be ensured for activities that do not require notification
to the district engineer.
    We have requested programmatic ESA consultation for the NWP
program. We contend that the new and modified NWPs, through the
requirements of General Condition 11, comply with ESA. We use the ESA
interagency consultation regulations at 50 CFR Part 402 when
determining compliance with ESA. Scope of analysis issues for ESA will
be resolved through consultation with the U.S. Fish and Wildlife
Service (FWS) and the National Marine Fisheries Service (NMFS). General
Condition 11 requires non-Federal permittees to notify the district
engineer if any listed species or designated critical habitat might be
affected or is in the vicinity of the project. The permittee shall not
begin work on the activity until notified by the District Engineer that
the requirements of the Endangered Species Act have been satisfied and
that the activity is authorized.
    Three commenters asserted that the Corps cannot issue the new and
modified NWPs prior to completing programmatic ESA consultation. One
commenter stated that programmatic ESA consultation does not obviate
the need for regional and site-specific consultation. One commenter
said that since Standard Local Operating Procedures for Endangered
Species (SLOPES) have not yet been completed, the Corps cannot rely on
SLOPES to ensure compliance with ESA. One commenter suggested that
SLOPES should be developed for all issued NWPs.
    We can issue the NWPs prior to the completion of the NWP
programmatic ESA consultation, because issuance of the NWPs has not
foreclosed opportunities to address endangered species and the NWPs
already contain safeguards to ensure compliance with ESA. The
programmatic consultation will provide additional assurance that the
existing NWPs, as well as the new and modified NWPs issued today, have
a formal process to develop any necessary additional procedures at the
district level. The programmatic consultation will provide further
assurance that the NWP program does not jeopardize the existence of any
Federally-listed threatened or endangered species, or destroy or
adversely modify the critical habitat of such species. Both the
programmatic ESA consultation and the PEIS will address potential
cumulative effects on endangered and threatened species and their
designated critical habitat regarding the NWP program. We maintain that
the SLOPES help ensure compliance with the ESA at the district level.
Districts can meet with local offices of the FWS and NMFS at any time
to modify or improve their SLOPES. Districts will enter case-specific
consultation in any case where the district determines the proposed
project may affect a threatened or endangered species.
    In addition to NWP General Condition 11, division and district
engineers have imposed and can impose additional regional conditions on
the NWPs and case-specific special conditions to address endangered or
threatened species or their critical habitat. For example, Corps
regional conditions can prohibit the use of NWPs in designated critical
habitat for endangered or threatened species or require notification
for activities in areas known to be inhabited by threatened or
endangered species. Some Corps districts have conducted programmatic
consultation for specific geographic areas. Also, Corps districts have
and will conduct case-specific Section 7 consultation for endangered
species. These efforts usually consider the NWP program in that
particular area. In summary, General Condition 11, Corps regional
conditions, case-specific special conditions, and SLOPES will ensure
that the NWP program complies with ESA.

Stream Impacts

    Many commenters objected to the proposed NWPs, stating that
thousands of feet of stream bed could be channelized or filled under
these NWPs. These commenters said that linear foot limits for stream
bed impacts should be imposed on the NWPs instead of acreage limits. A
large number of commenters recommended adding a 250 linear foot limit
for stream bed impacts to the new and modified NWPs. Other commenters
suggested linear stream bed impact limits of 200, 100, and 50 linear
feet. A few commenters said that the NWPs should not authorize any
stream impacts. Another commenter requested clarification regarding the
PCN thresholds for linear feet of stream bed impacts, asking if the
flooded area is included with the filled area.
    After consideration of these comments, we have decided to impose on
NWPs 39, 40, 42, and 43, a 300 linear foot limit for filling or
excavation activities in stream beds. This 300 linear foot limit
applies only to stream beds that normally have flowing water.

[[Page 12829]]

Division engineers can regionally condition the NWPs to lower the 300
linear foot limit for stream bed impacts, impose linear foot limits for
stream bed impacts on other NWPs, or establish lower PCN thresholds for
filling or excavating stream beds.
    Several commenters stated that all Corps districts must use the
same method to determine where the average annual flow of a stream is 1
cfs. One of these commenters recommended using drainage area as a
substitute. Another commenter suggested that the guidance in the
preamble to the final rule for the NWP regulations (33 CFR part 330)
published in the November 22, 1991, Federal Register (56 FR 59112)
should be used to establish where the 1 cfs point of a stream is
located. That guidance described how to determine the geographic
location of the limit of headwaters for perennial, intermittent, and
ephemeral streams.
    District engineers will utilize the best methods available to
identify where the average annual flow of a stream is 1 cfs. Although
the guidance published in the November 22, 1991, Federal Register was
intended to assist district engineers and the regulated public in
identifying the geographic location of headwaters (i.e., where the
average annual flow is less than 5 cfs), this guidance can also be used
to locate the 1 cfs point on a stream. District engineers can utilize
the median flow, rather than the average flow, to establish where the 1
cfs point on a stream is located. This approach recognizes that streams
with highly irregular flows, such as those occurring in the western
portion of the United States, could be dry at the 1 cfs point for most
of the year and still average, on an annual basis, a flow of 1 cfs
because of high volume, flash flood type flows which greatly distort
the average. Furthermore, we recognize that using the median flow for
an entire year in streams that have no stream flow for over half the
year but with flows greater than 1 cfs for several months would also
distort the average. It should also be noted that precision is not
required in establishing the 1 cfs point. The definition allows the
district engineer to use approximate means to compute it. The drainage
area that will contribute an average annual flow of 1 cfs can be
estimated by approximating the proportion of average annual
precipitation that is expected to find its way into the stream. Knowing
the amount of area that will produce this flow in a particular region,
the 1 cfs point can be approximated from drainage area maps. For
example, in most areas of the eastern United States (i.e., east of the
Mississippi River), one square mile of drainage area produces 1 cfs of
stream flow annually.
Applicable Waters for the New and Modified Nationwide Permits
    A number of commenters objected to the increased scope of waters in
which the proposed NWPs published in the July 21, 1999, Federal
Register could be used. One commenter stated that the NWPs should be
used only in headwaters and isolated waters. Two commenters supported
the use of the new and modified NWPs in non-tidal waters. Three
commenters objected to prohibiting the use of the new and modified NWPs
in tidal waters and non-tidal wetlands adjacent to tidal waters. One
commenter stated that the Corps has not provided justification for
excluding the new and modified NWPs from non-tidal wetlands that are
adjacent to tidal waters and recommended that the Corps utilize the
term ``contiguous'' instead of ``adjacent.''
    We contend that limiting the new NWPs to non-tidal waters, except
for non-tidal wetlands adjacent to tidal waters, provides adequate
protection of the aquatic environment and helps ensure that these NWPs
authorize only activities with minimal adverse effects. Regional
conditioning of the new and modified NWPs by division engineers will
provide additional protection by restricting or prohibiting the use of
the new and modified NWPs in high value waters. General Condition 25
will also protect high value waters. General Condition 26 does not
allow permanent, above-grade fills in the 100-year floodplain
downstream of the headwaters.
    We do not agree that the new and modified NWPs should be used in
tidal waters or non-tidal wetlands adjacent to tidal waters. We have
identified tidal waters as high value waters on a national basis. Non-
tidal wetlands adjacent to tidal waters contribute to the ecological
integrity of tidal waters and should not be subject to the new and
modified NWPs. District engineers can develop regional general permits
for discharges into non-tidal waters adjacent to tidal waters, if such
regional general permits are needed for activities that result in
minimal adverse effects on the aquatic environment, individually or
cumulatively.
    One commenter requested that the Corps define the term ``adjacent''
for the purposes of the new and modified NWPs. One commenter stated
that the definition of the term ``adjacent'' at 33 CFR 328.3(c) is
confusing for use in the NWP program and that the Corps needs to
provide a definition that is easily understandable by the regulated
public. This commenter also said that the NWPs should be limited to
only those non-tidal wetlands that are both adjacent to and inundated
by spring tides; wetlands landward of the mean high tide line would be
considered as non-tidal wetlands adjacent to tidal waters and wetlands
landward of the spring high tide line would not be considered adjacent
to tidal waters. Two commenters asked the Corps to provide a clear
explanation of the upstream limit of non-tidal wetlands adjacent to
tidal waters and whether non-tidal wetlands miles upstream of tidal
waters would be considered adjacent to those tidal waters.
    For the new and modified NWPs, the definition of the term
``adjacent'' at 33 CFR 328.3(c) will be used. Since aquatic systems
vary considerably across the country, we cannot establish more specific
criteria at a national level to further define adjacency. District
engineers will make appropriate determinations of adjacency, based on
regional hydrologic conditions.
    Wetlands located between mean high water and the spring high tide
line are tidal wetlands because they are inundated by tidal waters (see
33 CFR 328.4(b)(1)). Non-tidal wetlands that are bordering, contiguous,
or neighboring to tidal waters are considered adjacent to those tidal
waters. The upstream limit of non-tidal wetlands adjacent to tidal
waters is determined by the degree of influence of the tidal waterbody
on non-tidal wetlands. Those non-tidal wetlands that exert direct
hydrologic influence on tidal waters are considered adjacent to those
tidal waters. For the purposes of the NWPs, non-tidal streams located
upstream of the head of tide are not considered adjacent to tidal
waters, although those streams eventually flow into tidal waters and
are part of the surface tributary system. Wetlands adjacent to non-
tidal streams are within the scope of waters for the new and modified
NWPs.
    One commenter stated that the new and modified NWPs should not
authorize discharges into prairie potholes, playa lakes, or vernal
pools. Another commenter said that the NWPs should not be used in rare
and irreplaceable wetlands.
    We do not agree that the new and modified NWPs should be subject to
a national prohibition against discharges of dredged or fill material
into prairie potholes, playa lakes, or vernal pools. Rare and
irreplaceable wetlands have not been formally defined. General
Condition 25 restricts activities in designated critical resource
waters. Further, division engineers can

[[Page 12830]]

regionally condition these NWPs to restrict or prohibit discharges into
high value waters. For those activities that require notification,
district engineers can exercise discretionary authority if the proposed
work will result in more than minimal adverse effects on the aquatic
environment.
Mitigation
    A large number of commenters specifically addressed the
compensatory mitigation requirements of the proposed new and modified
NWPs. One commenter said that the goal of compensatory mitigation is
not clearly defined in the proposed NWPs. Several commenters requested
that the Corps clarify when compensatory mitigation is required for
activities authorized by NWP. These commenters said that there are some
inconsistencies concerning compensatory mitigation requirements in the
July 21, 1999, Federal Register notice. Two of these commenters
referred to Corps statements in the July 21, 1999, Federal Register
notice that: (1) Compensatory mitigation will normally be required for
activities that require notification and, (2) in some circumstances,
compensatory mitigation may be unnecessary because the adverse effects
on the aquatic environment are minimal without mitigation.
    For the NWP program, including the new and modified NWPs, the
purpose of compensatory mitigation is to ensure that the authorized
work results in minimal adverse effects on the aquatic environment. For
those activities that require notification to the district engineer,
compensatory mitigation may be necessary to ensure that the authorized
work results in minimal adverse effects on the aquatic environment.
District engineers will determine, on a case-by-case basis, when
compensatory mitigation is not practicable. Our use of the word
``normally'' when referring to compensatory mitigation for NWP
activities allows district engineers flexibility in determining when
compensatory mitigation will be required and lets the regulated public
know that compensatory mitigation is likely to be required for impacts
that exceed PCN thresholds, except under circumstances where the
adverse effects are minimal without compensatory mitigation. Activities
that do not require notification are presumed to result in minimal
adverse effects and do not require compensatory mitigation to ensure
minimal adverse effects. Division engineers can regionally condition an
NWP to lower the notification threshold to allow district engineers to
determine, on case-by-case basis, if compensatory mitigation is
necessary to ensure that the authorized work results in minimal adverse
effects on the aquatic environment.
    Many commenters opposed the use of compensatory mitigation to
ensure that activities authorized by NWPs result in minimal adverse
effects on the aquatic environment. Several commenters supported the
use of compensatory mitigation to ensure that authorized activities
result in minimal adverse effects. One of these commenters said that
compensatory mitigation should not be required simply to meet a ``no
net loss'' of wetland acreage goal. One commenter indicated that
compensatory mitigation should not be required for activities
authorized by NWP because NWPs can only authorize activities with
minimal adverse effects.
    Compensatory mitigation is often necessary to offset losses of
waters of the United States and ensure that the authorized activity
results in minimal adverse effects on the aquatic environment. The NWP
regulations at 33 CFR 330.1(e)(3) allow permittees to provide
compensatory mitigation to reduce the adverse effects of the proposed
work to the minimal level. In the July 21, 1999, Federal Register
notice, we stated that for the purposes of the NWP program,
compensatory mitigation is required to ensure that the authorized
activities result in minimal adverse effects on the aquatic
environment, individually or cumulatively, not to achieve ``no net
loss'' of wetland acreage. NWP compensatory mitigation requirements are
not driven by the ``no net loss'' goal, but will help support that
goal. A district engineer can determine, for an activity that requires
notification, that compensatory mitigation is not practicable.
    Two commenters said that compensatory mitigation should be required
only for impacts to waters of the United States. Another commenter
stated that the Corps is proposing to require mitigation for activities
not subject to its regulatory authority, such as flooding, excavation,
and drainage activities. One commenter indicated that the July 21,
1999, Federal Register notice requires compensatory mitigation for non-
wetland impacts. One commenter remarked that compensatory mitigation
for wetland or stream losses should be subject to a public notice
process because mitigation is being used to avoid significant impacts.
    Compensatory mitigation may be required by district engineers to
offset losses of waters of the United States to ensure that the
authorized work results in minimal adverse effects on the aquatic
environment. Although district engineers may require out-of-kind
compensatory mitigation, such as the restoration of upland riparian
zones, to compensate for losses of the functions and values of waters
of the United States, compensatory mitigation is required only to
offset losses of waters of the United States. District engineers can
require compensatory mitigation for losses of aquatic resource
functions and values caused by flooding, excavation, and drainage
caused by activities that are associated with activities that are
regulated by the Corps (i.e., discharges of dredged or fill material).
However, if the activity does not involve work in navigable waters of
the United States or a discharge of dredged or fill material into
waters of the United States, compensatory mitigation cannot be required
because no Corps permit is necessary to conduct the activity. We do not
agree that a public notice process is required for compensatory
mitigation projects.
    Several commenters stated that the mitigation requirements
discussed in the July 21, 1999, Federal Register notice do not
adequately protect wetlands. Numerous commenters said that the NWPs
should be conditioned to require a full alternatives analysis. Many
commenters requested that the Corps condition all NWPs to require
project proponents to avoid impacts to the maximum extent practicable
and implement compensatory mitigation that fully replaces all losses of
wetland acreage and functions. One commenter objected to including
minimization as a form of mitigation. Two commenters asserted that the
NWPs should be subject to the mitigation requirements of the 1990
mitigation Memorandum of Agreement (MOA), including sequencing
requirements.
    The mitigation requirements of the new and modified NWPs adequately
protect wetlands. General Condition 19 requires permittees to avoid and
minimize discharges into waters of the United States on-site to the
maximum extent practicable. General Condition 19 also states that
district engineers can require compensatory mitigation to ensure that
the authorized work results in minimal adverse effects on the aquatic
environment. The use of minimization as mitigation is well established
in Federal regulations (see the Council on Environmental Quality's
regulations at 40 CFR 1508.20). The avoidance provisions of the 1990
mitigation MOA apply only to standard individual permits, not
activities authorized by NWPs.
    One commenter stated that some of the new NWPs (e.g., NWPs 39 and
43)

[[Page 12831]]

require compensatory mitigation without requiring submission of a
notification to the district engineer. This commenter said that
compensatory mitigation should not be required unless the district
engineer reviews the PCN and determines that compensatory mitigation is
necessary to offset authorized losses of waters of the United States.
One commenter objected to requiring compensatory mitigation for
activities that require notification, but another commenter supported
this requirement. Two commenters objected to allowing district
engineers to make the final determination whether compensatory
mitigation is required.
    Compensatory mitigation is not required for NWP activities that do
not require notification to the district engineer. Division engineers
can regionally condition NWPs to lower PCN thresholds or require
notification for all activities, if such PCN thresholds are necessary
to allow district engineers to require compensatory mitigation to
ensure that adverse effects to the aquatic environment are minimal. We
believe that it is appropriate for district engineers to make the final
decisions whether compensatory mitigation is necessary to ensure that
activities authorized by NWPs result in minimal adverse effects.
    A large number of commenters recommended that the Corps require
acre-for-acre wetland restoration as compensatory mitigation for all
activities resulting in the loss of greater than \1/4\ acre of
wetlands. Other commenters suggested \1/2\, \1/3\, and 1 acre
thresholds for requiring compensatory mitigation. Many commenters said
that a minimum 1:1 mitigation ratio should be required for all losses
of waters of the United States authorized by NWPs. Other commenters
recommended higher mitigation ratios. One commenter said that the Corps
should provide compensatory mitigation guidelines that addresses site
selection and design, options for compensatory mitigation, and a
description of success criteria and monitoring requirements.
    While final specific compensatory mitigation requirements, such as
replacement ratios, are determined by district engineers on a case-by-
case basis, we agree that there should be a minimum requirement of an
acre-for-acre (1:1) wetland replacement as compensatory mitigation for
all activities requiring notification. The Corps can require
compensatory mitigation in excess of a 1:1 ratio of impact acreage to
compensatory mitigation acreage to adequately replace aquatic resource
functions and values that are lost as a result of activities authorized
by NWPs. The Corps can also accept out-of-kind compensatory mitigation,
if it is best for the aquatic environment. Existing policy and guidance
for compensatory mitigation provides a preference for on-site and in-
kind replacement of the functions and values of the impacted aquatic
resource. If on-site compensatory mitigation is not practicable, off-
site compensatory mitigation should be undertaken in the same
geographic area if practicable, (i.e., in close proximity and, to the
extent possible, the same watershed) or environmentally preferable. The
Corps can also accept out-of-kind compensatory mitigation, if it is
best for the aquatic environment.
    Many commenters stated that the Corps should require in-kind, on-
site replacement of wetlands. Several commenters supported the
utilization of off-site, out-of-kind compensatory mitigation for losses
of waters of the United States authorized by NWPs. These commenters
also supported the Corps position that the appropriate compensatory
mitigation required for activities authorized by NWPs should be based
on what is best for the aquatic environment. One commenter remarked
that the selected mitigation method should best replace site-specific
functions and values of the impacted aquatic habitat. One commenter
supported the use of out-of-kind compensatory mitigation, such as the
establishment and maintenance of vegetated buffers next to streams, and
stream restoration, and the preservation of wetland/upland complexes.
    When reviewing compensatory mitigation proposals, district
engineers will consider what is best for the aquatic environment,
including requirements for vegetated buffers next to perennial and
intermittent streams and other open waters. Wetland restoration,
enhancement, creation, and, only in exceptional circumstances,
preservation are not the only methods of providing compensatory
mitigation for activities authorized by NWPs. Stream restoration and
enhancement, including the restoration or preservation of riparian
zones, can also provide compensatory mitigation for losses resulting
from activities authorized by NWPs. The establishment and maintenance
of vegetated buffers next to streams and other open waters as
compensatory mitigation for losses of waters of the United States
authorized by NWPs are discussed in the next section of this notice.
    Many commenters opposed the Corps preference for the use of
mitigation banks and in lieu fee programs to provide compensatory
mitigation for losses of waters of the United States authorized by
NWPs. A number of other commenters supported the Corps preference for
consolidated compensatory mitigation methods. One commenter indicated
that the preference for consolidated compensatory mitigation methods
should not be limited to mitigation banks. One commenter expressed some
support for using mitigation banks and other consolidated mitigation
methods as alternatives for on-site compensatory mitigation because of
the uncertainty for success in some individual compensatory mitigation
projects. This commenter also recommended developing guidance for in
lieu fee programs and other consolidated mitigation methods before
allowing widespread use of these methods. Another commenter recommended
that the text of the NWPs and the preamble to the notice announcing the
issuance of the NWPs refer to the Federal guidance for compensatory
mitigation, especially for the use of mitigation banks and in lieu fee
programs. Two commenters indicated that in lieu fee programs should not
be considered as compensatory mitigation until guidance has been
developed for these programs. One commenter objected to the use of in
lieu fee programs to provide compensatory mitigation because the
commenter asserts that these programs are not subject to agency and
public review and do not ensure compliance with the goal of no net
loss.
    Consolidated compensatory mitigation methods, including mitigation
banks, are often an efficient means of compensating for losses of
waters of the United States, particularly for multiple small
activities. We recognize that consolidated compensatory mitigation
methods are often more practicable and successful because of the
planning and implementation efforts typically expended on these
activities by their proponents. Individual efforts to create, restore,
or enhance wetlands to replace small wetland losses may be unsuccessful
because of poor planning and/or construction. Furthermore, consolidated
mitigation efforts are often better monitored and maintained and often
result in the establishment of larger contiguous wetland areas that
benefit the overall local aquatic environment and many of the species
that utilize larger aquatic habitats.
    One commenter stated that where mitigation banks and in lieu fee
programs are in the same watershed, preference should be given to using
the mitigation bank since mitigation banks subject to more stringent
requirements

[[Page 12832]]

and more likely to be successful. Two commenters said that mitigation
banks should be located in the same watershed as the site of the NWP
activity. One commenter said that in lieu fee programs should not be
used as compensatory mitigation for activities that result in the loss
of greater than \1/10\ acre of waters of the United States.
    Where practicable, mitigation banks and other consolidated
mitigation methods should be located in the same watershed as the site
of the activity authorized by NWP. District engineers have the
authority to approve or disapprove the use of specific mitigation
approaches as compensatory mitigation for losses of waters of the
United States authorized by NWPs. Permittees should have the
flexibility to utilize compensatory mitigation methods that are within
their means to accomplish and meet the requirements to offset
unavoidable losses of waters of the United States. To the extent
practicable, permittees should consider use of approved mitigation
banks and other forms of consolidated compensatory mitigation. We do
not agree that there should be an acreage limit that would preclude the
use of any particular type of mitigation to provide compensatory
mitigation for losses of waters of the United States authorized by
NWPs.
    Several commenters stated that the preservation of high value
wetlands should be encouraged as a form of compensatory mitigation. A
number of commenters objected to the use of preservation as
compensatory mitigation, unless one-to-one replacement of aquatic
habitats has been achieved. One commenter objected to the use of
enhancement unless one-to-one replacement of wetlands has been
accomplished.
    We concur that the preservation of high value wetlands is one
appropriate method of compensatory mitigation for losses of waters of
the United States, but only in exceptional circumstances. Preservation
of aquatic habitats should be done in conjunction with aquatic habitat
restoration, creation, or enhancement to offset losses of waters of the
United States. The amount of preservation or enhancement that will be
accepted as compensatory mitigation for impacts authorized by NWPs will
be determined by district engineers on a case-by-case basis.
    To further clarify the issue of mitigation, we have removed some of
the mitigation information from General Condition 13 and consolidated
the mitigation requirements for the NWPs in General Condition 19.

Vegetated Buffers

    In the July 21, 1999, Federal Register notice, we proposed to
require the establishment and maintenance of vegetated buffers adjacent
to waters of the United States as an alternative form of compensatory
mitigation to ensure that activities authorized by NWPs result in
minimal adverse effects on the aquatic environment. The vegetated
buffer requirement was in the draft NWP 39 and the proposed
modifications to General Conditions 13 and 19.
    As a result of our review of the comments received in response to
the July 21, 1999, Federal Register notice, we have made several
changes to the vegetated buffer requirements for the NWPs. For example,
vegetated buffers are required only if there are perennial or
intermittent streams or other open waters on the project site.
Vegetated buffers will be established and maintained on the uplands or
wetlands next to the open waters. For the purposes of the NWPs,
vegetated buffers are not required next to ephemeral streams or
wetlands. The use of vegetated buffers as mitigation for NWP activities
is discussed in General Condition 19. The changes to the vegetated
buffer requirements are discussed in more detail below.
    Many commenters supported the vegetated buffer requirements for the
new and modified NWPs. A number of commenters stated that vegetated
buffers should not be a condition of an NWP authorization. These
commenters said that vegetated buffers should be considered only when a
landowner voluntarily agrees to establish and maintain vegetated
buffers adjacent to waters of the United States as an alternative form
of compensatory mitigation. Several commenters contend that
compensatory mitigation sites should be protected by vegetated buffers.
Another commenter stated that the use of upland buffers should be
consistent with current Federal guidance, particularly the ``Federal
Guidance for the Establishment, Use and Operation of Mitigation Banks''
(60 FR 58605). A commenter stated that the vegetated buffer requirement
should not apply to all activities that require a Corps permit, such as
piers.
    Vegetated buffers will be required only when there are open waters,
such as perennial or intermittent streams, on the project site, and the
NWP activity involves discharges of dredged or fill material into
waters of the United States. However, a required vegetated buffer could
be established off-site for impacts on the project site. Project
proponents will not be required to establish and maintain vegetated
buffers next to ephemeral streams. Vegetated buffers are not normally
required for activities that require only Section 10 permits, but
district engineers can require vegetated buffers as compensatory
mitigation for activities authorized by Section 10 permits, if such
compensatory mitigation is appropriate. District engineers will
determine, on a case-by-case basis, whether or not vegetated buffers
are required. Vegetated buffers are required only when it is
practicable for the permittee to establish these areas and the
vegetated buffer will be self-maintaining, other than restrictions on
cutting or removal of the buffer. If the permittee does not own the
land next to the open waters, then vegetated buffers are not required
unless the permittee can reasonably obtain the appropriate conservation
easements for those buffers.
    Compensatory mitigation sites can be protected by vegetated
buffers, but we do not agree that this should be a requirement of the
NWP program. However, providing a buffer to the restored waters of the
United States in a mitigation bank is precisely why a good mitigation
bank will have a matrix of waters and uplands for maximum ecological
functions and values. The ``Federal Guidance for the Establishment, Use
and Operation of Mitigation Banks'' does not contain any useful
guidance concerning the establishment and maintenance of vegetated
buffers next to open waters. During the revision of the vegetated
buffer requirements for the NWPs, we considered the riparian forest
buffer Conservation Practice Standard (Code 391A) issued by NRCS in
July 1997. We also considered the information in the document entitled
``Riparian Forest Buffers: Function and Design for Protection and
Enhancement of Water Resources'' published by the Forest Service.
    A large number of commenters opposed the vegetated buffer
requirement. Those in opposition to this requirement were divided into
two groups. One group objected to vegetated buffers as compensatory
mitigation for discharges of dredged or fill material into wetlands
because they believe that wetland losses should be compensated only
through wetland restoration, creation, or enhancement. The other group
of commenters stated that the Corps does not have the regulatory or
statutory authority to require vegetated buffers adjacent to waters of
the United States.
    Those commenters that oppose the use of vegetated buffers as

[[Page 12833]]

compensatory mitigation for losses of wetlands indicated that vegetated
buffers adjacent to waters of the United States do not replace the lost
functions that would be provided by wetland restoration or creation.
Many of these commenters said that vegetated buffers next to open
waters and streams do not provide flood storage capacity, wildlife
habitat, water quality, or groundwater recharge functions. Numerous
commenters stated that using vegetated buffers as compensatory
mitigation will not help the Administration achieve its goal of a net
gain of 100,000 acres of wetlands per year. Other commenters indicated
that vegetated buffers as compensatory mitigation is contrary to the
``no net loss'' goal. One commenter said that the use of vegetated
buffers is contrary to the 1990 mitigation MOA.
    Vegetated buffers next to streams and other open waters on the
project site are an important type of compensatory mitigation that
provides substantial aquatic habitat, water quality, and flood storage
benefits. The establishment and maintenance of vegetated buffers may be
a preferable form of compensatory mitigation because it may be
infeasible to create or restore wetlands on the project site after the
activity is built. Vegetated buffers, even if they are established on
uplands next to streams and other open waters, would provide on-site
aquatic habitat, water quality, and flood storage functions.
    Vegetated buffers next to streams and other open waters provide
many of the same functions that wetlands provide. In fact, many
vegetated buffers will be wetlands. Due to their proximity to open
waters, vegetated buffers are more effective at protecting open waters
than wetlands distant from those open waters. We have refined the
following list of the functions of vegetated buffers from the list of
functions published in the July 21, 1999, Federal Register notice. In
general, vegetated buffers next to streams and open waters provide the
following functions: (1) Reduce adverse effects to water quality by
removing nutrients and pollutants from surface runoff; (2) reduce
concentrations of nutrients and pollutants in subsurface water that
flows into streams and other open waters; (3) moderate storm flows to
streams, which reduces downstream flooding and degradation of aquatic
habitat; (4) stabilize soil (through plant roots), which reduces
erosion in the vicinity of the open waterbody; (5) provide shade to the
waterbody, which moderates water temperature changes and provides a
more stable aquatic habitat for fish and other aquatic organisms; (6)
provide detritus, which is a food source for many aquatic organisms;
(7) provide large woody debris from riparian zones, which furnishes
cover and habitat for aquatic organisms and may cause the formation of
pools in the stream channel; (8) provide habitat to a wide variety of
aquatic and terrestrial species; (9) trap sediments, thereby reducing
degradation of the substrate that provides habitat for fish and other
aquatic organisms (e.g., some fish species depend upon gravel stream
beds for spawning habitats); and (10) provide corridors for movement
and dispersal of many species of wildlife. In addition, vegetated
buffers next to streams provide flood storage capacity and groundwater
recharge functions.
    Although we are requiring the establishment and maintenance of
vegetated buffers in uplands next to open waters as compensatory
mitigation for certain activities, we expect to continue our documented
programmatic no net loss of wetlands approach to the regulatory
program. For most activities authorized by NWPs, vegetated buffers will
only be a portion of the required compensatory mitigation. Moreover,
where the project involves filling wetlands, vegetated buffers will
only be required after a 1:1 ratio based on acreage of wetland
mitigation has been required. Only \1/3\ of the additional mitigation
required for the project may be non-wetland vegetated buffers. The
vegetated buffer requirement for the NWPs is not contrary to the 1990
mitigation MOA, because vegetated buffers next to open waters help
achieve the goals of the Clean Water Act. It is also important to note
that the 1990 mitigation MOA applies only to activities subject to the
standard permit process.
    One commenter requested clarification as to where vegetated buffers
must be located. A few commenters disagree with the Corps position that
vegetated buffers adjacent to waters of the United States provide
benefits for the aquatic environment. One commenter requested that the
Corps explain why vegetated buffers are necessary and specify the goals
that will be accomplished by vegetated buffers. This commenter said
that the goals of vegetated buffers will affect width requirements.
This commenter also believes that not all areas adjacent to open waters
provide significant benefits to water quality and that all vegetated
buffers do not perform all 10 functions listed on page 39274 of the
July 21, 1999, Federal Register notice, because the functions of
vegetation buffers are dependent on the vegetation present and site and
soil characteristics.
    For the purposes of the NWPs, vegetated buffers are to be
established and maintained on uplands or wetlands next to perennial and
intermittent streams and other open waters. The functions and values of
vegetated buffers next to open waters, especially forested riparian
zones next to streams, are well documented in the scientific
literature. The main goal of the vegetated buffer requirement is to
restore, enhance, and protect open waters. In general, properly
designed and implemented vegetated buffers, especially those inhabited
by trees, will perform the functions listed above. Since we are not
requiring vegetated buffers next to ephemeral streams, most vegetated
buffers should have adequate amounts of water to naturally establish
and support trees in the riparian zone. Vegetated buffers will normally
be 25 to 50 feet wide on both sides of streams, but the district
engineer can require wider vegetated buffers to address documented
water quality concerns. A 25 to 50 foot wide vegetated buffer next to a
stream provides important aquatic habitat functions and values, as well
as substantial water quality benefits.
    Many commenters believe that the vegetated buffer requirements for
the new and modified NWPs exceed the Corps regulatory authority.
Several commenters consider the vegetated buffer requirement as an
attempt to expand the scope of the Corps jurisdiction to uplands.
Numerous commenters indicated that the Corps is requiring vegetated
buffers even if the work does not involve discharges of dredged or fill
material into waters of the United States. Many commenters said that
any vegetated buffer requirements should be imposed by the states, who
have authority under Section 401 of the Clean Water Act to address
water quality issues. Several commenters said that vegetated buffers
could also be imposed by states through the requirements of the
National Pollutant Discharge Elimination System program.
    The Corps has the statutory authority to require vegetated buffers
next to streams and other open waters because the goal of the Clean
Water Act is to restore and maintain the chemical, physical and
biological integrity of Nation's waters. This goal is stated in Section
101 of the Clean Water Act and is applicable to all sections of the
Clean Water Act, including section 404. Vegetated buffers next to
streams and other open waters help maintain the chemical, physical, and
biological integrity of these waters. The establishment and maintenance
of vegetated buffers next to streams is the

[[Page 12834]]

restoration of riparian zones. Discharges of dredged or fill material
into waters of the United States, which the Corps regulates under
section 404 of the Clean Water Act, result in the loss of aquatic
resource functions and values. The establishment and maintenance of
vegetated buffers next to streams and other open waters offsets losses
of aquatic resource functions and values and reduces degradation of
these aquatic resources.
    The vegetated buffer requirement is not an attempt to expand the
Corps regulatory jurisdiction. We are not asserting jurisdiction over
uplands next to streams and other open waters. We cannot require
compensatory mitigation for upland impacts, but we can require, as
compensatory mitigation, upland vegetated buffers that restore or
protect aquatic habitat and water quality. The establishment or
maintenance of a vegetated buffer next to waters of the United States
can be an important part of the compensatory mitigation required for a
Corps permit. The establishment and maintenance of vegetated buffers
next to open waters can be considered as compensatory mitigation that
offsets losses of waters of the United States and ensures that the
adverse effects of the authorized work on the aquatic environment are
minimal. Vegetated buffers are not normally required for activities
that do not involve discharges of dredged or fill material into waters
of the United States. For example, vegetated buffers are not required
for structures in navigable waters of the United States, unless the
district engineer determines that such compensatory mitigation is
necessary to offset impacts to those waters.
    Vegetated buffers next to streams and other open waters do more
than protect water quality. Eight of the 10 functions listed in the
July 21, 1999, Federal Register notice relate to aquatic habitat. Only
two functions listed in that notice exclusively addressed water quality
functions. Likewise, most of the functions of vegetated buffers listed
in this Federal Register notice are aquatic habitat functions.
Commenters objecting to the vegetated buffer requirement focused only
on the water quality functions of vegetated buffers, and ignored the
aquatic habitat functions.
    A number of commenters stated that the vegetated buffer requirement
duplicates, and may conflict with, local land use planning. Two
commenters said that the vegetated buffer requirement is contrary to 33
CFR 320.4(j)(2), which states that the primary responsibility for
zoning lies with state, local and Tribal governments. Many commenters
believe that the vegetated buffer requirement constitutes a taking of
private property. Two commenters said that the vegetated buffer
requirement has the potential to result in a taking of private property
because the Corps has failed to demonstrate the causal link between the
vegetated buffer requirement and specific water quality concerns caused
by discharges of dredged or fill material into waters of the United
States authorized by the NWPs. These commenters assert that the Corps
must allow alternative methods to address water quality concerns.
    The vegetated buffer requirement does not duplicate or conflict
with local land use planning. Although some state and local governments
have vegetated buffer requirements, there are many regions that do not
have such requirements. The district engineer will consider state and
local vegetated buffer requirements when determining the vegetated
buffer requirements for NWP activities. If the state or local vegetated
buffer requirements are adequate, then the district engineer can defer
to those requirements. The vegetated buffer requirement is not contrary
to 33 CFR 320.4(j)(2) because it does not override state or local
zoning decisions. If it is impractical for the permittee to establish
and maintain vegetated buffers next to open waters on the project site,
then vegetated buffers are not required. If the project proponent does
not want to establish and maintain vegetated buffers and the district
engineer determines that such buffers are necessary to ensure the
proposed work results in minimal adverse effects on the aquatic
environment, then the project proponent can request an individual
permit or other form of DA permit.
    The vegetated buffer requirement does not constitute a taking of
private property because it is compensatory mitigation to offset losses
of aquatic resource functions and values. If the project proponent does
not want to establish and maintain vegetated buffers next to open
waters on the project site, then he or she can request another form of
DA permit to authorize the activity. The removal of nutrients,
sediments, and pollutants from surface and shallow subsurface waters by
vegetated buffers next to open waters is well documented in the
scientific literature. The establishment and maintenance of vegetated
buffers is a type of out-of-kind compensatory mitigation to offset
authorized losses of wetlands and other waters of the United States,
which also remove these chemical compounds from waters. The vegetated
buffer requirement is no different than requiring the alteration of
uplands to create wetlands as compensatory mitigation for losses of
wetlands. In fact, the establishment and maintenance of vegetated
buffers next to streams and other open waters is likely to be more
successful and less costly than attempting to create wetlands by
grading and altering uplands. When reviewing compensatory mitigation
proposals, district engineers can consider alternative forms of
compensatory mitigation to address water quality concerns, if vegetated
buffers are not practical for the project site.
    Several commenters opposed the vegetated buffer requirement,
stating that it substantially reduces the amount of developable area on
a parcel of land. Two commenters said that the vegetated buffer
requirement will be difficult to implement for those projects that have
already received subdivision approval. These commenters also assert
that this requirement will increase the cost of housing. Several
commenters said that the establishment and maintenance of vegetated
buffers is practical only in large, open spaces. One commenter stated
that the vegetated buffer requirement will increase sprawl development
because it requires buildings to be constructed farther apart from each
other.
    Although the vegetated buffer requirement may reduce the amount of
developable land on a particular parcel, we do not agree that such a
reduction will be substantial. In most situations, vegetated buffers
will be located in 100-year floodplains, in which there are often state
or local building restrictions. If it is impractical for the project
proponent to establish and maintain vegetated buffers on the property
because of prior subdivision approval, then the district engineer can
determine that vegetated buffers are not required. We do not agree that
the vegetated buffer requirement will increase the cost of housing more
than any other type of compensatory mitigation requirement, such as the
creation of wetlands. In most circumstances, establishing and
maintaining vegetated buffers will be less costly than grading land to
create wetlands. The vegetated buffer requirement will not encourage
sprawl development.
    One commenter believes that the Corps needs to provide a cost-
benefit analysis for the vegetated buffer requirement. This commenter
also stated that this requirement requires an environmental impact
statement because it is a major Federal action.
    The vegetated buffer requirement does not need a cost-benefit
analysis or an environmental impact statement.
    In the July 21, 1999, Federal Register notice, we stated that
vegetated buffers

[[Page 12835]]

will normally be 50 to 125 feet wide, but provided district engineers
with the flexibility to impose narrower or wider vegetated buffers.
Many commenters stated that the widths of vegetated buffers required
for NWP activities should be based on the width necessary to ensure
that the adverse effects to the aquatic environment are minimal. These
commenters said that permit conditions, including mitigation
requirements, must be directly related to impacts of the proposed work
and appropriate to scope and degree of those impacts. One of these
commenters cited 33 CFR 325.4(a). Another commenter cited 33 CFR
320.4(r) and remarked that the Corps has not demonstrated that
vegetated buffers provide compensatory mitigation for identifiable
losses of resources. Numerous commenters said that the requirement for
50 to 125 foot wide vegetated buffers would, in some cases, result in
compensatory mitigation requirements that would exceed the impacts of
the activity. Two commen