39276 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Notices

DEPARTMENT OF DEFENSE

Department of the Army, Corps of

Engineers

Public Notice Concerning Changes to

Nationwide Permit 26

AGENCY: U.S. Army Corps of Engineers,

DoD.

ACTION: Final notification.

SUMMARY: In the November 26, 1997,

Federal Register, the U.S. Army Corps

of Engineers requested comments on

three changes that were made to

nationwide permit (NWP) 26 and

published in the December 13, 1996,

Federal Register. This was done in

response to a court order issued on

October 27, 1997. The Corps requested

comments on the following three

changes to NWP 26: (1) The expiration

of NWP 26 on December 13, 1998; (2)

the prohibition against filling or

excavating more than 500 linear feet of

stream bed under NWP 26; and (3) the

prohibition against using other NWPs

with NWP 26 to authorize the loss of

more than 3 acres of waters of the

United States.

The Corps of Engineers is giving final

notice that NWP 26 is being retained as

published in the Federal Register on

Friday, December 13, 1996 (61 FR

65874–65922) with one exception. The

Corps has proposed to extend the

expiration date of NWP 26 to March 28,

1998 (63 FR 36040–36078).

EFFECTIVE DATE: July 22, 1998.

FOR FURTHER INFORMATION CONTACT:

Write to the Chief of Engineers, U.S.

Army Corps of Engineers, ATTN:

CECW–OR, Washington, D.C. 20314–

1000, or, contact Mr. Sam Collinson,

Regulatory Branch, Office of the Chief of

Engineers at (202) 761–0199.

SUPPLEMENTARY INFORMATION:

Background

In the June 17, 1996 (61 FR 30780),

Federal Register, the U.S. Army Corps

of Engineers published a notice

requesting comments on the issuance,

reissuance and modification of the

Corps of Engineers nationwide permits

(NWPs) and announced a public hearing

to invite the public to provide

comments on the NWPs. In that notice,

the Corps proposed changes to several

NWPs including several changes to

NWP 26. However, it did not

specifically request comments on

limiting the filling or excavation of

stream beds to no more than 500 linear

feet, restricting the use of other NWPs

with NWP 26 to limit adverse effects to

waters of the United States to 3 acres for

a single and complete project, or issuing

NWP 26 for a period shorter than 5

years, which is the legal maximum limit

for any NWP in accordance with Section

404(e) of the Clean Water Act.

In response to the June 17, 1996,

Federal Register Notice, the Corps

received over 500 comments concerning

NWP 26. Based on comments from the

public and other agencies, as well as the

Corps internal review of the

implementation of NWP 26 over the

past five years, several changes were

made to NWP 26 to ensure that it would

comply with the legal requirements of

the Clean Water Act. The changes were

published in the Federal Register on

December 13, 1996 (61 FR 65874–

65922) and became effective on

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

lawsuit was filed by the National

Association of Home Builders, objecting

to the three changes noted above.

The Corps believes that the changes

made to NWP 26 were promulgated in

full compliance with all legal

requirements of the Clean Water Act.

However, in view of the public interest

in the changes and to avoid the time and

expense of litigation, the Corps

volunteered to seek comments on the

three changes. Accordingly, on October

27, 1997, a court order was issued

remanding the action to the Corps to

request public comments on the three

changes to NWP 26 described above.

The November 26, 1997 (62 FR

63224), Federal Register notice was

published and comments were accepted

until February 26, 1998.

Summary of Comments

Over 3,000 comments were received.

Approximately 2,700 were in favor of

the three changes and approximately

300 were against them. Approximately

two thirds of the commenters

specifically addressed the three changes

to indicate their approval or disapproval

while others simply expressed favor or

disfavor towards NWP 26 in general. Of

those specifically addressing each

change, all, except a very few (less than

10) indicated that they either favored or

disfavored all three of the changes, (i.e.,

very few had split opinions about the

changes).

Of those in favor of the changes, 190

represented environmental, civic, lake

or watershed districts or other

organizations or state agencies. Many

individual commenters stated that they

were members of the National Wildlife

Federation or of the Ohio Bass

Federation. Of those opposed to the

changes, approximately 244 represented

groups that are members of the National

Association of Home Builders and other

building, design, realty, or mining

organizations.

Response to Specific Comments

I. General

A. Compliance With Section 404(e) of

the Clean Water Act (Section 404(e))

Most of the commenters opposed to

the changes stated that the three

changes are contrary to Section 404(e).

They believe Section 404(e) indicates

that it was the intent of Congress for the

Corps to develop and maintain a

streamlined regulatory process for

projects that have minimal adverse

effects. However, many of the

commenters that support the changes

stated that, in its earlier form, NWP 26

was contrary to CWA 404(e). Section

404(e), in its entirety, reads:

(e)(1) In carrying out his functions

relating to the discharge of dredged or

fill material under this section, the

Secretary [of the Army] may, after notice

and opportunity for public hearing,

issue general permits on a State,

regional, or nationwide basis for any

category of activities involving

discharges of dredged or fill material if

the Secretary determines that the

activities in such category are similar in

nature, will cause only minimal adverse

environmental effects when performed

separately, and will have only minimal

cumulative adverse effect on the

environment. Any general permit issued

under this subsection shall (A) be based

on the guidance described in subsection

(b)(1) of this section, and (B) set forth

the requirements and standards which

shall apply to any activity authorized by

such general permit.

(2) No general permit issued under

this subsection shall be for a period of

more than five years after the date of its

issuance and such general permit may

be revoked or modified by the Secretary

if, after opportunity for public hearing,

the Secretary determines that the

activities authorized by such general

permit have an adverse impact on the

environment or such activities are more

appropriately authorized by individual

permits.

While the Corps agrees that a

streamlined process is essential for both

the public and the agency, Section

404(e) does not guarantee a particular

form of streamlined process. Section

404(e) sets forth two important terms:

‘‘minimal adverse effects’’ and ‘‘similar

in nature’’, but does not define either.

During the past twenty years there have

been many changes that affect how we

interpret them. There have been

advancements in our understanding of

the functions of aquatic resources,

including wetlands, and changes in the

types of projects that are most common.
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Notices 39277

Neither wetland science nor wetland

regulation are static disciplines.

NWP 26 was first developed in 1977,

when the Corps Section 404 jurisdiction

was extended from traditional navigable

waters to all waters of the U.S. At that

time, the blanket authorization of work

above headwaters and in isolated

waters, with discretionary authority to

revoke or modify specific activities, was

a practical means of managing the

suddenly increased workload. Later, in

1984, when it had become apparent that

very large tracts of waters of the U.S.

could be impacted, NWP 26 was capped

at 10 acres. Since that time, it has

become evident that headwaters and

isolated waters of the U.S., including

wetlands, have greater values and

functions in support of the overall

aquatic ecosystem than previously

recognized. This was addressed by the

National Academy of Sciences in their

1995 report: Wetlands: Characteristics

and Boundaries. It has also become

apparent that, in some watersheds,

urban developments that individually

impact ten or less acres of wetlands, can

cumulatively have adverse effects on

water storage and water purification

capacity. Given these changes in our

knowledge base and in the types of

projects that NWP 26 is being used for,

the Corps believes that reducing the

NWP 26 cap to 3 acres is warranted if

we are to assure that only minimal

adverse effects on the aquatic

environment are resulting from its

application.

The term ‘‘similar in nature’’ has been

the subject of much discussion and

controversy. Some, particularly those

opposed to changes to NWP 26, believe

it means activities that are similar to

each other by virtue of the fact that they

are fill activities and they all have

minimal adverse effects. Others,

including many of those who support

the changes made to NWP 26, believe it

has a much narrower meaning: projects

for the same purpose conducted in a

similar manner such as fill for a road,

fill for an individual residence, fill in

support of cranberry operations, etc. In

addition, it has been posed that similar

may refer to the size of the area

impacted, e.g. fill up to 1⁄3 acre, fill up

to 2 acres, etc., independent of purpose.

Some of the commenters opposed to

the changes suggested that since the

500-foot and 3-acre limitations have

been placed on NWP 26 to assure that

it will not result in more than minimal

adverse effects, it should no longer be

necessary to phase it out altogether.

The Corps sees several advantages in

moving to a new set of activity-specific

NWPs. It will remove the question as to

whether an NWP is authorizing

activities that are similar in nature. It

will allow us to tailor special conditions

to similar types of activities, rather than

‘‘one size fits all’’. It will also facilitate

regionalization of the NWPs to best

protect the valuable resources found in

each district while maintaining the

Corps ability to expeditiously authorize

activities with minimal effects on the

aquatic environment. (For additional

discussion of ‘‘minimal adverse effect’’

and ‘‘similar in nature’’, see the

preamble to the NWPs published in the

Federal Register on December 13, 1996.)

B. Workload

Almost all the commenters who were

opposed to the changes expressed

concern about how the Corps workload

would be affected and, therefore, the

Corps ability to respond to applicants in

a reasonable amount of time. In

December, 1996, the Corps estimated

that the changes to NWP 26 (that

became effective February 11, 1997)

would result in approximately 7,500

additional pre-construction notifications

(PCNs) each year. However, data

indicated that most would be for 1 acre

or less of fill and therefore would be

Corps-only PCNs. In addition, it was

estimated that there would be a 10%

increase in the annual number of

individual permits (IPs). It is not

possible to look at data since February,

1997, and determine if those estimates

were accurate because the change in the

total number of PCNs and of IPs has

been influenced by several factors, not

known in December, 1996, rather than

just the changes made to NWP 26. For

example: The ‘‘Tulloch rule’’ (regulation

of discharges incidental to excavation)

was suspended for approximately 6

months during Fiscal Year (FY) 1997;

several districts implemented new

regional general permits during the

same period; some applicants deferred

work in order to understand the new

NWPs; etc. We do know that the total

number of IPs was lower, rather than

higher, in FY 1997 (after the changes)

than in FY 1996 (before the changes):

FY 1996: 5,040 IPs, 38,476 written NWP

authorizations

FY 1997: 4,697 IPs 39,883 written NWP

authorizations

C. Complex Regulatory System

Commenters opposed to the changes

stated that these changes are part of a

trend towards more complicated

regulations. The Corps recognizes that

this is occurring. It is a result of

continuing work to fine-tune the NWPs

so that, frequently-occurring, minimal

adverse effect activities are

expeditiously permitted, while activities

that may have more than minimal

adverse effects are more carefully

scrutinized. It is also a result of

applying permit terms and conditions

that are specific to similar activities

rather than ‘‘one size fits all’’.

D. Was This a Good Faith Notice?

Some of the commenters opposed to

the changes stated that they believe the

Corps requested comments on these

three changes merely to avoid litigation

and had no intention of seriously

considering them. The Corps believes

that the changes were promulgated in

compliance with all legal requirements

and, after review of the comments

received, has concluded that a retraction

of the changes is not warranted.

However, all the comments received

were carefully considered and we have

obtained additional valuable

information about the public’s concerns

and highlighted areas where we need to

be more clear or provide more detail

about the intent of NWPs and/or the

special conditions that apply to them.

This will be reflected in the proposed

NWPs we are developing to go into

effect when NWP 26 expires. The

proposed NWPs were described in the

July 1, 1998, FR (63 Federal Register

36040–36078).

E. The Corps Does Not Have a Good

Tracking System

Many of the commenters who support

the changes stated that the true impacts

of NWP 26 cannot be ascertained

because the Corps does not have an

effective way to track them. The Corps

has collected and reviewed data for all

permit authorizations for many years to

assist in making program-wide

determinations and NWP decisions in

particular. Data gathering has become

progressively more sophisticated as

additional districts become automated.

Since May, 1997, we have collected

additional data for all NWPs, and

specifically for NWP 26, to ensure that

we have a good understanding of where

it is being used, how often, and for what

types of projects.

F. NWP 26 Allows Fill for Development

Without Regulatory Review, Analysis of

Alternatives, Public Notification or

Opportunity for Public Comment

It is the purpose of the nationwide

permit program to streamline review of,

and decisions for, proposed projects. To

that end, alternatives analysis, public

notification and opportunity for public

comment take place at the time the

NWPs are issued, i.e., usually every five

years. Activities authorized by NWP 26

requiring a PCN are reviewed by the

Corps and evaluated for potential

impacts to particularly sensitive
39278 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Notices

resources, on-site avoidance and

minimization of impacts, and

compliance with general and special

conditions. When the Corps receives a

PCN, it can take discretionary authority

to require an individual permit, if the

Corps believes a more detailed

evaluation is required. In practice, even

those activities not requiring a PCN are

often reviewed in the same manner as

those that require it. In some cases, the

applicant requests a review; in others,

the initial proposed project requires a

PCN but is subsequently reduced in

scope. Moreover, the Corps believes that

NWPs with regional conditions protect

the aquatic environment by motivating

applicants to reduce impacts to the

extent practicable in order to receive a

quick decision.

II. Expiration of NWP 26 on December

13, 1998

A. Why Set an Expiration Date?

Many commenters opposed to the

changes asked why it is necessary to set

an expiration date for NWP 26. They

recommended that it be left in effect

until the replacement NWPs are ready.

They doubted the Corps ability to have

new NWPs ready by December 13, 1998,

and wanted to avoid a period of time

with neither in effect. The Corps

believes it is important to set a date not

only as a goal for the Corps to conclude

the process, but for applicants’ ability to

make plans. However, the coordination

process to develop new and modified

NWPs has taken longer than expected

resulting in delay in the date of

publication of the proposed new and

modified nationwide permits. The

Corps wants to ensure that there is

adequate time to effectively involve

other agencies and the public in a new

regional conditioning process.

Therefore, concurrent with the Corps

July 1, 1998, publication in the Federal

Register, the Corps proposed extension

of the expiration date of NWP 26 to

March 28, 1999. Comments on this

matter will be received until July 31,

1998, after which the Corps will make

a decision on whether to extend the

expiration date for NWP 26.

B. Decreased Flexibility and

Predictability; Loss of ‘‘Catch-all’’ NWP

Many commenters opposed to the

changes believe that they will result in

decreased flexibility and predictability.

In the short term, there may be reduced

predictability as applicants and agencies

transition to a new set of NWPs. It is the

Corps goal to increase consistency and

predictability, as well as prioritizing

efforts based on aquatic functions and

values, by removing the artificial

distinction that currently exists between

headwaters and isolated waters versus

other waters of the United States. There

can be a very different level of review

for similar projects depending on which

type of water they are located in. This

change will provide for a similar

process for similar activities regardless

of whether they are located above or

below the headwaters point.

Some commenters referred to loss of

‘‘permit certainty’’. It should be noted

that existence of an NWP is not a

guarantee that a permit will be issued.

The project will be evaluated and if

appropriate conditions are met,

authorization can be granted in a

streamlined manner. The Corps believes

that most projects that now qualify for

an NWP will continue to qualify for an

NWP after NWP 26 expires, although

the specific form of the NWP may

change and there may be additional

conditions related to the specific type of

activity.

The Corps has gathered information

from all its district offices about the

types of projects that NWP 26 is used to

authorize and most will be addressed by

the new NWPs. Project types that occur

frequently only in a given region, and

have only minimal adverse effects, may

be more appropriately addressed by

regional general permits issued by

individual Corps districts.

C. Burden on Transportation Projects

Several commenters from

transportation agencies and from

consultants who work with them stated

that the 2-year expiration of NWP 26

would be particularly burdensome for

transportation projects. They stated that

transportation agencies often work on a

5-year, or longer, plan and need to know

what the regulatory framework will be

over that length of time. They also

stated they would have increased costs

because they would not be able to

review the new NWPs in time to design

their projects to meet new conditions

and also meet advertisement and

contracting schedules. The NWP

regulations at 33 CFR 330.6(b) state that

‘‘activities which have commenced (i.e.,

are under construction) or are under

contract to commence in reliance upon

an NWP will remain authorized

provided the activity is completed

within twelve months of the date of an

NWP’s expiration, modification or

revocation’’. For most projects, a year is

sufficient time for project completion,

however, if it is determined that

particular transportation projects need a

longer transition period, this can be

addressed by Corps Districts on a caseby-case basis through expedited review

as individual permits. However, as

noted above, we believe that, in most

cases, projects that now qualify for NWP

26, will continue to qualify for an NWP

after NWP 26 expires, although the

specific form and conditions of the

NWP may change.

D. Regulation of Isolated Wetlands

Several of the commenters who were

concerned about the expiration of NWP

26 referred to a December 23, 1997,

decision of the U.S. Court of Appeals for

the Fourth District regarding Section

404 jurisdiction over isolated waters.

They requested that the expiration of

NWP 26 be delayed until the issue of

regulation of isolated wetlands is

resolved. That decision, in the case of

United States v. Wilson, 133 F.3d 251

(4th Cir. 1997) pertains to how a link is

established between isolated water

bodies and interstate or foreign

commerce. The ultimate impact of that

decision, if any, on Section 404

jurisdiction will occur independently of

the existence of NWP 26 or other NWPs.

The expiration of NWP 26 will not

change the Corps jurisdiction in isolated

waters, but rather when the Corps

evaluates and authorizes projects in

such waters.

E. Programmatic General Permits

Several of the commenters who were

opposed to the replacement of NWP 26

with activity-specific NWPs made a

comparison to programmatic general

permits. These commenters believe the

Corps is mis-interpreting the meaning of

‘‘activities similar in nature’’ because

programmatic general permits routinely

authorize many different types of

activities. The difference between

programmatic general permits and other

general permits is that programmatic

general permits are based on the

existence of a Federal, State or local

regulation that duplicates that of the

Corps and authorizes several specific

activities, each of which is similar in

nature. Other general permits are based

on a singular specific activity. Instead of

a single programmatic general permit

the Corps could issue several separate

general permits, each based on the

specific activities in the Federal, state,

or local program. However, the Corps

believes this would involve additional

and unnecessary paperwork and

confusion for the regulated public.

F. Regulatory Flexibility Act

In its comments, the National

Association of Home Builders stated

that the Corps should have conducted a

regulatory flexibility analysis, in

conjunction with the modifications to

NWP 26, as required by the Small

Business Regulatory Enforcement
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Notices 39279

Fairness Act which is part of the

Regulatory Flexibility Act. Such an

analysis would develop and examine

alternatives that minimize impacts on

small business and would describe steps

taken by the agency to minimize adverse

effects to small business. The Corps

believes that this requirement does not

apply to modification of NWPs. The

NAHB’s letter referred to Section 603(a)

of the RFA, which provides that

whenever an agency is required by

section 553 of the Administrative

Procedures Act, or any other law, to

publish general notice of proposed

rulemaking for any proposed rule, it

must conduct a flexibility analysis.

However, the NWPs are permits, similar

to individual and regional general

permits; they are not regulations (rules)

and therefore would not fall under this

requirement. The Corps NWP

regulations at 33 CFR Part 330 are in

compliance with the RFA and the Corps

believes that the NWPs are also in

compliance with the RFA. Indeed, the

purpose of the NWPs is to minimize

unnecessary adverse effects on the

regulated public and the entire review

process focuses on identification and

consideration of alternatives for

authorizing activities with minimal

adverse effects.

III. Prohibition Against Filling More

Than 500 Linear Feet of Stream Bed

A. Consistency

In the December 13, 1996, Federal

Register, the Corps stated that 500 feet

was chosen as a cutoff point for

consistency with NWPs 12 and 13. Most

of the commenters opposed to the

changes, pointed out that, under NWPs

12 and 13, reaching a length of 500 feet

of impact triggers a PCN while under

NWP 26 it triggers an IP. The Corps

meant that the actual length was chosen

to be consistent with the length in

NWPS 12 and 13. It is recognized that

the prohibition is more restrictive than

the PCN requirement for NWPs 12 and

13. This matter will be reviewed in

conjunction with the issuance of the

new, activity specific, NWPs that will

become effective when NWP 26 expires.

B. Work in Areas Much Smaller Than

One Third Acre Will Be Precluded

Many of the commenters opposed to

the 500-foot limit noted that a 500-foot

length of a narrow stream bed or

waterway could result in individual

permit review of an impact area well

below the 1/3-acre PCN threshold and

far from the 3-acre limit that exists for

NWP 26. In these cases, the degree of

impact may be disproportionate to the

acreage involved. For example, filling a

5-foot wide stream bed over a distance

of O.5 mile would result in a loss of 0.30

acre of stream bed. Under acreage limits,

alone, a PCN would not be required, yet

the work could result in more than

minimal adverse effects if the stream

served important spawning habitat

functions. Therefore, the Corps believes

it has a responsibility to review those

projects more closely as long as specific

activities are undefined. We are

continuing to collect data and will

review this limitation in the activityspecific NWPs that will replace NWP

26.

C. Definition of Stream Bed

Almost all the commenters opposed

to the 500-foot limit indicated that the

Corps should distinguish between

different types of streams and should

provide clear definition of a stream.

They also encouraged the Corps to take

into consideration the characteristics of

the stream’s drainage basin and stream

bed hydrology. They expressed concern

that the southwestern region of the U.S.

would be unduly burdened by this

restriction. Finally, they cautioned

against use of the ‘‘ordinary high water

mark’’ (OHWM) for determining

existence of a stream in that region

(many dry runs have an OHWM, yet

carry water only after heavy rain

events).

In the December 13, 1996, preamble,

the term ‘‘loss of waters of the U.S.’’ was

defined differently for the linear

limitation for streambed than for the

acreage limitation. For the acreage

limitation, the term includes filling,

excavation, drainage, and flooding

impacts. For the 500 linear-foot

limitation, the preamble specifically

distinguishes the impacts to be

considered as activities ‘‘directly

affecting (filling or excavating) more

than 500 linear feet of the stream bed of

creeks or streams’’. When determining

the 500-foot limitation, the Corps will

evaluate the length of filling or

excavating in the stream bed (within the

ordinary high water mark). The term

‘‘stream bed’’ was meant to capture

water bodies that normally have flowing

water. This would include all perennial

streams and many, but not all,

intermittent streams. In deciding

whether to apply the restriction to an

intermittent stream, the Corps would

consider whether the level of impact

was minimal by applying professional

judgement, considering the

characteristics of the drainage basin and

stream bed hydrology, etc. This

determination should not be confused

with a determination of jurisdiction.

IV. Use of NWP 26 With Other NWP’s

Cannot Exceed 3 Acres of Impact

A. Limitation vs Prohibition

Many of the comment letters, both

those in support and those opposed to

the changes to NWP 26, included

statements indicating that the

commenters might not be making the

distinction between limitation and

prohibition of multiple use of NWPs for

one single and complete project

(commonly referred to as ‘‘stacking’’).

The Corps has not prohibited the

multiple use of other NWPs with NWP

26 to authorize a single and complete

project. However, when multiple NWPs

are used, the total acreage is limited to

3 acres. In addition, notification is

required for projects where any NWP 12

through 40 is used with another NWP

12 through 40. This is not a prohibition

of stacking; rather, stacking is allowed

within the stated limits and conditions.

B. Unreasonable Assumption

Many of the commenters opposed to

the changes stated that it is not

reasonable to assume that two or more

project components, each with minimal

adverse effects on its own, will

automatically add up to more than

minimal adverse effects when put

together. The Corps does not believe

that two or more minimal adverse effect

projects always add up to greater than

minimal adverse effects. Rather, we

recognize that the potential exists and

therefore, there should be a mechanism

(i.e., the PCN) to assure evaluation of

each case. In the case of NWP 26, we

also believe that a limit of 3 acres is

appropriate to ensure that there can be

equitable use of the NWP by members

of the public while maintaining

minimal cumulative adverse effects.

C. Contrary to § 330.6

Many of the commenters opposed to

the changes stated that the stacking

limitation is contrary to 33 CFR

330.6(c). However, that section reads, in

its entirety:

Two or more different NWPs can be

combined to authorize a ‘‘single and

complete project’’ as defined at 33 CFR

330.2(I). However, the same NWP

cannot be used more than once for a

single and complete project.

That paragraph simply says that

multiple use is acceptable; it does not

say that it is mandatory that it be

allowed in every case; nor does it make

any statement about what type of

conditions may be placed on use of

multiple NWPs.
39280 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 / Notices

D. Hindrance of Well-planned

Developments

Several commenters opposed to the

limitations placed on NWP 26 stated

that the new limits will discourage

developers from proposing wellplanned developments. They believe

that, in order to qualify for an NWP

under the lower limits, developers will

present a larger number of smaller

projects as ‘‘single and complete’’ rather

than a more genuine, larger, single and

complete project such as could be done

with allowance for up to 10 acres of fill.

Others indicated that developers would

make less effort to ‘‘avoid and

minimize’’ at the outset. Once they

determined they would have to apply

for an individual permit anyway, they

would start out by requesting as much

wetland fill as they might wish. Both of

these scenarios are possible with the

previous or current limits of NWP 26.

The Corps doesn’t believe that this

would encourage developers to design

projects this way. It is incumbent on the

Corps to evaluate if a project is truly

‘‘single and complete’’ or is, rather, the

first of several components of a larger

single and complete project. In the same

way, the Corps must determine if

appropriate avoidance and

minimization has been conducted and

that the adverse effects are minimal. The

Corps is considering this in more detail

in the NWPs proposed to replace NWP

26.

E. Need for an Upper Limit

Several commenters opposed to the

changes stated that an upper limit

should not be necessary since a PCN is

required any time more than one NWP

12 through 40 is applied to a single and

complete project. Some of the same

commenters suggested that there be

provisions allowing for 3 acres to be

exceeded for the most-often-used

combinations of NWPs. As stated above,

based on current knowledge of wetland

science and of the types of projects

proposed nationwide, the Corps

believes that to ensure that adverse

effects are minimal we, usually, need to

maintain an upper acreage limit of 3

acres to projects authorized under one

or more NWPs. However, a limit of 10

acres has been proposed for master

planned developments in the activityspecific NWPs proposed to replace NWP

26 (63 FR 36040–36078).

V. Conclusion

Based on our review of the comments

we have concluded that the 3

modifications:(1) the expiration of NWP

26 on December 13, 1998; (2) the

prohibition against filling or excavating

more than 500 linear feet of stream bed

under NWP 26; and (3) the prohibition

against using other NWPs with NWP 26

to authorize the loss of more than 3

acres of waters of the United States, we

made regarding NWP 26 are appropriate

and should not be changed, with one

exception. We have proposed to extend

the expiration date of NWP 26 to March

28,1999, to ensure that there is adequate

time to effectively involve other

agencies and the public in the

development of regional conditions for

the new and modified, activity-specific,

NWPs and to ensure that those NWPs

are in place at the time NWP 26 expires.

Dated: July 17, 1998.

Charles M. Hess,

Chief, Operations Division, Directorate of

Civil Works.

[FR Doc. 98–19495 Filed 7–21–98; 8:45 am]

BILLING CODE 3710–92–P

DEFENSE NUCLEAR FACILITIES

SAFETY BOARD

Privacy Act; Systems of Records

AGENCY: Defense Nuclear Facilities

Safety Board.

ACTION: New system of records.

SUMMARY: Each Federal agency is

required by the Privacy Act of 1974, 5

U.S.C. 552a, as amended, to publish a

description of the systems of records it

maintains containing personal

information. In this notice the Board

announces a new system of records.

FOR FURTHER INFORMATION CONTACT:

Robert M. Andersen, General Counsel,

Defense Nuclear Facilities Safety Board,

625 Indiana Avenue, NW., Suite 700,

Washington, DC 20004–2901, (202) 208–

6387.

SUPPLEMENTARY INFORMATION: The new

system of records, designated DNFSB–7,

is described below.

DNFSB–7

SYSTEM NAME:

Supervisor Files.

SECURITY CLASSIFICATION:

Unclassified materials.

SYSTEM LOCATION:

Defense Nuclear Facilities Safety

Board, 625 Indiana Avenue, NW.,

Washington, DC 20004–2901.

CATEGORIES OF INDIVIDUALS COVERED BY THE

SYSTEM:

Members of the Board’s technical,

legal, and administrative staff.

CATEGORIES OF RECORDS IN THE SYSTEM:

Files maintained by supervisors,

indexed by employee name, containing

positive or negative information used

primarily to write annual or mid-year

performance appraisals or to propose

awards and honors. The files may

contain written correspondence,

examples of an employee’s work,

printed versions of electronic

communications, private notes by the

supervisor, and other records bearing on

the individual’s performance.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

National Defense Authorization Act,

Fiscal Year 1989 (amended the Atomic

Energy Act of 1954 (42 U.S.C. 2011 et

seq.) by adding new Chapter 21—

Defense Nuclear Facilities Safety

Board).

ROUTINE USES OF RECORDS MAINTAINED IN THE

SYSTEM, INCLUDING CATEGORIES OF USERS AND

THE PURPOSE OF SUCH USES:

Records are used by supervisors to

write annual or mid-year performance

appraisals for their employees or to

propose awards and honors. Records

may also be used in connection with

disciplinary and adverse actions. These

records are not disclosed outside

DNFSB and will not be accessed by

persons other than the supervisor

maintaining the record and

administrative staff personnel assigned

to file or retrieve records, except as

required by law consistent with the

Privacy Act.

POLICIES AND PRACTICES FOR STORING,

RETRIEVING, ACCESSING, RETAINING, AND

DISPOSING OF RECORDS IN THE SYSTEM:

STORAGE:

Paper records and computer files.

RETRIEVABILITY:

By employee name.

SAFEGUARDS:

Access is limited to the individual

supervisor keeping the records and

administrative personnel who may file

or retrieve records. Records are stored in

locked file cabinets or in locked desk

drawers.

RETENTION AND DISPOSAL:

Records retention and disposal

authorities are contained in the

‘‘General Records Schedules’’ published

by National Archives and Records

Administration, Washington, DC. Most

files in DNFSB–7 are purged once per

year following completion of appraisals.

Records are destroyed by shredding,

burning, or burial in a sanitary landfill,

as appropriate.

SYSTEM MANAGER(S) AND ADDRESS:

Defense Nuclear Facilities Safety

Board, 625 Indiana Avenue, NW., Suite

700, Washington, DC 20004–2901.

Attention: Andrew Thibadeau.