Corps NWP Revisions

March 6, 2000

Background

• Corps published proposed changes to its nationwide permit (NWP) program on July 21, 1999 in the Federal Register.
• Corps is committed to enhancing the protection of the aquatic environment, while ensuring fair and reasonable decision-making procedures for the regulated public.
• We received over 1,700 comments on the proposed changes.
• The Corps has completed the report on the economic and workload implications of the proposed NWPs as required by the 2000 Energy and Water Development Appropriations Act. That study indicated the proposed changes would result in a $39 million/year impact on the regulated public and a need for a 15% increase in the Corps budget to maintain performance.
• A report was issued on February 14, 2000 by the National Association of Counties (NAC), and Foundation for Environmental and Economic Progress, which indicated the impact on the regulated public would be $300 million/year, and result in a need for a 30% increase in the Corps budget. Those estimates are substantially higher than the Corps report, we believe because the NAC report based its results primarily on interviews with larger developers. The Corps report looks at all actual permit data from FY98, including the smaller "mom and pop" type of projects to draw its conclusions.
• After careful review of the comments and the economic and workload effects report, we determined that the proposed changes to the NWPs needed to be further refined. The benefits for the environment were not commensurate with the impacts on the regulated public.
• The modifications we have made based on the public comments and the report will substantially improve protection of the aquatic environment over the July 1999 proposal, while reducing the economic impacts on the regulated public and workload for the Corps by roughly one half. We estimate that the final NWPs will increase costs for the regulated public by about $20 million per year, and would require an additional $6 million per year in appropriations for the Corps to maintain current performance.

Final NWPs as Modified

• Let me briefly and generally describe the changes we have made that enhance environmental protection, while expanding the applicability of the NWPs, and simplifying their implementation:
• We have established a maximum acreage limit for the replacement NWPs of 1/2 acre -- eliminating the confusing "indexing" of project size to impact acreage allowed.
• We have established a 1/10 acre threshold for applicants to notify the Corps of their proposed project. This will allow the Corps to determine which projects need the extensive review under standard individual permits, and will allow the Corps to identify necessary mitigation for projects of 1/10 acre or more of impact.
• We have modified the proposed condition that totally restricted use of the NWPs in the 100 year floodplain. The modified condition will allow permitting of up to 1/2 acre in the flood fringe of the headwater areas -- headwaters are the areas currently subject to NWP 26 -- provided the project meets the FEMA Federal standard for protection of floodplains. The final NWPs will not authorize above grade fill for most of the new NWPs in the FEMA mapped floodway.

• Below the headwaters, use of the replacement NWPs will be restricted in the 100 year floodplain as it is under the current NWP 26.

• The NWPs for roads and utilities will be available in the 100 year floodplain, even the floodway, provided the project meets the FEMA Federal standard for protection of the floodplain.

• Since the maximum acreage of impact has been limited to 1/2 acre, we have eliminated the condition restricting use of the NWPs in impaired waters.

• The final NWPs will be issued on March 9, with an effective date of June 7, 2000.

NWP 26 has been extended until June 7, 2000, and any PCNs received by the Corps by March 9, 2000 will

401 Water Quality Certification Conditions for Nationwide Permits

Below are the 401 water quality certification conditions the Texas Natural Resource Conservation Commission (TNRCC) added to the March 9, 2000 issuance and modification of Nationwide Permits (NWP), as described in Part III of the Federal Register (65 FR No. 47, pp. 12818-12899). These conditions were included as part of TNRCC=s certification issued on June 7, 2000.

Additional information regarding these conditions, including descriptions of the best management practices, can be obtained from the TNRCC by contacting the 401 Coordinator, MC-150, P. O. Box 13087, Austin, Texas 78711-3087 or from the appropriate U.S. Army Corps of Engineers district office.

The applicant must use at least one best management practice (BMP) from each of the following three categories of on-site water quality management.

 I. Erosion Control

Disturbed areas must be stabilized to prevent the introduction of sediment to adjacent wetlands or water bodies during wet weather conditions (erosion). At least one of the following BMPs must be maintained and remain in place until the area has been stabilized.

• Temporary VegetationBlankets/Matting
• Mulch
• Sod

II. Post-Construction TSS Control

After construction has been completed and the site is stabilized, total suspended solids (TSS) loadings shall be controlled by at least one of the following BMPs.

• Retention/Irrigation
• Constructed Wetlands
• Extended Detention Basin
• Wet Basins
• Vegetative Filter Strips

III. Sedimentation Control

Prior to project initiation, the project area must be isolated from adjacent wetlands and water bodies by the use of BMPs to confine sediment. At least one of the following BMPs must be maintained and remain in place until project completion.

• Sand Bag Berm
• Rock Berm
• Silt Fence
• Hay Bale Dike
• Triangular Filter Dike

Dredged material shall be placed in such a manner that prevents sediment runoff into water in the state, including wetlands. Water bodies can be isolated by the use of one or more of the required BMPs identified for sedimentation control. These BMP's must be maintained and remain in place until the dredged material is stabilized.