63224 Federal Register / Vol. 62, No. 228 / Wednesday, November 26, 1997 / Notices

DEPARTMENT OF DEFENSE

Corps of Engineers, Department of the

Army

Public Notice Concerning Changes to

Nationwide Permit 26

AGENCY: U.S. Army Corps of Engineers,

DoD.

ACTION: Notice for public comment.

SUMMARY: In response to a court order

issued on October 27, 1997, the Corps

is requesting comments on three

changes to Nationwide Permit (NWP)

26, which were published in the

Federal Register on Friday, December

13, 1996 (61 FR 65874–65922). The

Corps is requesting comments on the

following changes to NWP 26: (1) The

expiration of NWP 26 on December 13,

1998; (2) the prohibition against filling

or excavating more than 500 linear feet

of stream bed under NWP 26; and (3)

the prohibition against using other

NWPs with NWP 26 to authorize the

loss of more than 3 acres of waters of the

United States. The Corps is not

requesting comments on any other

issues related to the recent modification

of NWP 26 or any other NWP. Within

90 days of the close of the comment

period, the Corps will publish its final

determination on these issues in the

Federal Register.

DATES: Comments must be received by

February 24, 1998.

ADDRESSES: HQUSACE, CECW–OR,

Washington, D.C. 20314–1000.

FOR FURTHER INFORMATION CONTACT: Mr.

David Olson or Mr. Sam Collinson,

CECW–OR, at (202) 761–0199.

SUPPLEMENTARY INFORMATION:

Background

In the June 17, 1996, Federal Register,

the Corps published a notice requesting

comments on the issuance, reissuance,

and modification of the NWPs and

announced a public hearing to invite the

public to provide comments on the

NWPs. The Corps proposed changes to

several NWPs, including several

changes to NWP 26. In the June 17,

1996, Federal Register Notice, the Corps

did not specifically request comments

on limiting filling or excavation of

stream beds to 500 linear feet under

NWP 26, restricting the use of other

NWPs with NWP 26 to limit impacts to

waters of the United States to 3 acres for

a single and complete project, or issuing

NWP 26 for a period shorter than 5

years, which is the maximum legal limit

for any NWP.

In response to the June 17, 1996,

Federal Register Notice, the Corps

received over 500 comments concerning

NWP 26. Based on comments from the

public and other agencies, as well as

Corps internal review of the

implementation of NWP 26 over the

past five years, several changes were

made to NWP 26 to ensure that NWP

would comply with a number of legal

requirements. These changes were

published in the Federal Register on

December 13, 1996 (61 FR 65874–

65922) and became effective on

February 11, 1997. On March 6, 1997, a

lawsuit was filed by the National

Association of Home Builders, objecting

to three of these changes. These three

changes are: (1) The expiration of NWP

26 on December 13, 1998; (2) the

prohibition against filling or excavating

more than 500 linear feet of stream bed

under NWP 26; and (3) the prohibition

against using other NWPs with NWP 26

to authorize the loss of more than 3

acres of waters of the United States.

The Corps believes that the changes

we made to NWP 26 were promulgated

in full compliance with all legal

requirements, and were necessary to

ensure compliance with the

requirements of the Clean Water Act.

However, in view of the public interest

in the three changes explained below

and in order to avoid the time and

expense of litigation, the corps

volunteered to seek comments on the

three changes cited above. Accordingly,

on October 27, 1997, a court order was

issued remanding the action to the

Corps to request public comments on

the changes to NWP 26 cited in the

previous paragraph.

The public is invited to provide

comments on these three changes to

NWP 26 within 90 days of the date of

this notice. The Corps is not requesting

comments on any other issues related to

the recent modification of NWP 26.

Within 90 days of the close of the

comment period, the Corps will publish

its decision on these issues in the

Federal Register. In the interim, all the

terms and conditions of NWP 26 as

published in the December 13, 1996,

Federal Register, including the three

changes that are the subject of this

notice, will remain in effect pending a

Corps decision. The following is a brief

discussion of the three changes to NWP

26. For more details, see the Preamble

to the December 13, 1996, Federal

Register Notice, (61 FR 65874–65922).

(1) Expiration of NWP 26 on December

13, 1998

As a result of an internal evaluation

of NWP 26 and consideration of all

comments received in response to the

June 17, 1996, Federal Register Notice,

the Corps determined that modification

of NWP 26 was necessary and that it

should be replaced with activityspecific NWPs to ensure that no more

than minimal impacts to waters of the

United States, both individually and

cumulatively, are authorized. Knowing

that it will take up to two years to issue

replacement NWPs, the Corps reissued

NWP 26 for a two year period, which

will expire on December 13, 1998.

Section 404(e) of the Clean Water Act

states that no general permit can be

issued for a period of more than five

years, thereby, allowing the Corps to

issue an NWP for a period of less than

five years. This two year period will

allow the Corps to collect detailed

information on the types of activities

being authorized by NWP 26, the nature

and extent of wetlands and other waters

being affected by the NWPs, and

potential effects of the NWPs on the

Nation’s federally listed threatened and

endangered species.

In the December 13, 1996, Federal

Register Notice, the Corps requested

comments from the public regarding

specific categories of activities that

should be considered for new NWPs.

Prior to the expiration of NWP 26 on

December 13, 1998, the Corps will

develop, propose, and issue activityspecific replacement NWPs, with

appropriate limitations, to provide

consistency with the ‘‘minimal adverse

effects’’ mandate of section 404(e). The

public will have an opportunity to

comment formally on the proposed

replacement permits once they are

officially proposed in the Federal

Register. We anticipate that the activityspecific replacement NWPs will be

published for public review and

comment in approximately March 1998.

(2) Prohibition Against Filling More

Than 500 Linear Feet of Stream Bed

In response to the June 17, 1996,

Federal Register Notice, a few

commenters recommended using linear

footage to quantify stream bed impacts

for the purpose of NWP 26, instead of

acreage. They believed that using

acreage to quantify impacts to stream

beds is inappropriate, because it can

allow losses of long segments of

streams. For example, filling a 5-foot

wide stream bed over a distance of 1⁄2

mile will result in a loss of 0.30 acre of

stream bed. If acreage were used to

quantify the stream bed impacts,

notification to the Corps would not be

required and the work could result in

more than minimal impacts if the

stream bed provides important

functions, such as spawning habitat for

fish. Limitations of 200 to 500 linear feet

of stream bed impacts were

recommended by commenters.
Federal Register / Vol. 62, No. 228 / Wednesday, November 26, 1997 / Notices 63225

We concurred with these commenters

and placed a prohibition in NWP 26

against activities directly affecting (i.e.,

filling or excavating) more than 500

linear feet of stream bed. Therefore,

filling or excavating more than 500

linear feet of stream bed was not

authorized under the revisions to NWP

26. The threshold of 500 linear feet was

chosen to maintain consistency within

the NWP Program, because NWPs 12

and 13 have pre-construction

notification thresholds of 500 linear

feet. We believe that this additional

limitation enhances the Corps ability to

ensure that projects with more than

minimal adverse impacts will not be

authorized under NWP 26.

(3) Use of NWP 26 With Other NWPs

Cannot Exceed 3 Acres of Impact

Many commenters recommended that

the use of multiple NWPs for a single

and complete project (a practice also

referred to as ‘‘stacking’’) should be

eliminated or restricted because it

would allow the possibility of more

than minimal adverse effects to result

under the NWP Program.

Under certain circumstances, NWPs

can be used in combination and result

in only minimal individual and

cumulative adverse environmental

effects. NWP regulations provide for

multiple use of NWPs, as long as each

NWP is used only once for a single and

complete project and the combined

adverse effects are minimal. However,

the use of more than one NWP for a

particular project could potentially

result in more than minimal adverse

effects. Many NWPs are usually ‘‘stand

alone’’ project authorizations. Generally,

only seven of the 37 NWPs are used

more than occasionally with certain

other NWPs for authorizing projects.

These seven NWPs are 3, 12, 13, 18, 19,

26, and 33. We believe that of those

seven NWPs, those with the potential to

have more than minimal impacts when

used with certain other NWPs, are

NWPs 18 and 26 in combination with

each other and with NWPs 14 and 29.

To ensure that multiple use of NWPs

does not result in more than minimal

adverse effects, the Corps has added a

General Condition to the NWPs and

restricted certain combinations of

nationwide permits. General Condition

15 requires permittees to submit a preconstruction notification to the District

Engineer when any NWP 12 through 40

is combined with any other NWP 12

through 40, as part of a single and

complete project. NWP 14 was modified

so that it cannot be combined with NWP

18 or NWP 26 for the purpose of

exceeding the limitations of any of these

three NWPs. For example, NWPs 14 and

26 cannot be combined to authorize the

loss of 31⁄3 acres of waters of the United

States. Furthermore, NWP 18 cannot be

combined with NWP 26 to increase the

thresholds or the limitations of NWP 26.

NWP 29 is already conditioned so that

it cannot be used with NWP 14, NWP

18, or NWP 26. We have also limited the

amount of authorized impacts when

combining any NWP with NWP 29 or

NWP 26. If another NWP is used with

NWP 29 to authorize a single and

complete project, the total acreage of

impacts to water of the United States

cannot exceed 0.5 acres. Whenever any

other NWP is used in conjunction with

NWP 26, the total acreage of impacts to

waters of the United States, for all

NWPs combined, cannot exceed 3 acres.

Likewise, the Corps is only requesting

comments on the prohibition against

combining other NWPs with NWP 26 to

exceed the 3-acre limitation of NWP 26.

Dated: November 13, 1997.

Charles M. Hess,

Chief, Operations, Construction, and

Readiness Division, Directorate of Civil

Works.

[FR Doc. 97–30278 Filed 11–25–97; 8:45 am]

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