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On August 9, 2001, the Army Corps of Engineers (ACOE) published a notice that it was soliciting comments for the reissuance of the existing Nationwide Permits (NWPs), General Conditions, and definitions with some modifications. On March 9, 2000, the Corps published five new NWPs, modified six existing NWPs, modified six General Conditions, and added two new General Conditions to replace NWP 26 (see Marine Environmental Update, Vol. FY00, No. 2). The five new NWPs (NWPs 39, 41, 42, 43, 44) and six modified NWPs (NWPs 3, 7, 12, 14, 27, and 40) will expire five years from their effective date of June 07, 2000. The intent of this notice is to reduce the confusion regarding the expiration of the NWPs, and the administrative burden, by reissuing existing NWPs, General Conditions, and definitions so that all issued, reissued and modified NWPs and General Conditions will become effective and expire on the same date.
Twenty-one of the NWPs contain provisions within the terms and conditions that establishes a threshold level requiring "notification" to the ACOE before a regulated activity is authorized to commence. This "notification" includes submitting to the ACOE an application containing detailed or conceptual descriptions of proposed activities, and the impacts to aquatic systems. A "notification" to the ACOE may be required for filling aquatic areas, such as stream beds (whether perennial, intermittent, or ephemeral) and wetlands. Excavation in waters of the U.S. requires a permit (and may require "notification") if the activity involves a discharge of dredged material resulting in more than "incidental fallback" (see Marine Environmental Update, Vol. FY01, No. 2).
In addition to the "notification" provision, regional conditions may be developed by District Engineers to take into account regional differences in aquatic resource functions and values across the country and to put mechanisms into place to protect them. After identifying the geographic extent of "higher" quality aquatic systems, District Engineers can either change "notification" thresholds, or require "notification" for all activities within a particular watershed or waterbody to ensure that NWP use and authorization only occurs for activities with minimal adverse effects, individually and cumulatively. Furthermore, ACOE Division Engineers can suspend or revoke the use of certain NWPs within the bounds of high value aquatic systems if the use of NWPs would result in more than minimal adverse effects to the aquatic environment, individually or cumulatively.
General Condition 19, "Mitigation", describes how District Engineers will require compensatory mitigation with other aquatic resources or vegetated buffers in order to offset the authorized impacts to the extent necessary to ensure minimal adverse effects on the aquatic environment. The ACOE has determined that the NWP authorizations, along with the ability to place regional conditions or case-specific conditions, or require Individual Permits as appropriate, will not cause more than minimal individual or cumulative adverse effects to waters of the U.S. Compensatory mitigation can be accomplished through the restoration, creation, enhancement, and/or preservation of aquatic resources either by individual projects constructed by the permittee, or the use of mitigation banks, in lieu fee programs, or other consolidated mitigation efforts.
Comments on the reissuance of the proposed NWPs must be received by September 24, 2001. Send comments to HQUSACE, ATTN: CECW-OR, 441 "G" Street, NW, Washington, DC 20314-1000. For further information contact: Mr. Rich White or Mr. Sam Collinson, at (202) 761-4599 or access the Army Corps of Engineers Regulatory Home Page at: http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.
The complete text of the notice is available from MESO (text only or 223 KB Adobe™ Acrobat™ file).
Federal Register, Volume 66, Number 154, Thursday, August 9, 2001, pp. 42069-42100.
| Marine Environmental Update Bulletin | August 9, 2001 |