Audubon's comments on the proposed Nationwide Permits

October 7, 1999

Sam Collinson
U.S. Army Corps of Engineers
CECW-OR
20 Massachusetts Ave. NW
Washington, D.C. 20314-1000

Dear Mr. Collinson:

On behalf of the more than one million members and supporters of the National Audubon Society (Audubon), we submit the following comments in response to a notice published in the July 21, 1999 Federal Register, "Proposal to Issue and Modify Nationwide Permits; Notice" (64 Fed. Reg. 39252 ff.). In the notice, the U.S. Army Corps of Engineers (Corps) requested comments regarding five proposed new Nationwide Permits (NWPs) and modifications to six existing Nationwide Permits to replace NWP 26 when it expires. The notice also requested comments on modifications to nine NWP general conditions and the addition of three new general conditions, all of which will apply to both new and existing NWPs. We thank the Corps for the opportunity to comment on this proposal.

While we recognize many significant improvements in the replacement permit proposal since it was first published in July 1, 1998 (63 Fed. Reg. 36040 ff.), Audubon continues to be concerned that the permits will result in more than minimal impacts to the aquatic environment. While a national level condition providing additional protection for 100 year floodplains and an indexing approach to NWP 39 represent significant improvements in the package, numerous loopholes and policy changes promulgated in the recent notice threaten to undermine these improvements and lead to a net loss of aquatic resources. Audubon's most serious concerns relate to the notice's treatment of mitigation for impacts to wetlands and the expansion of NWP 40 to allow for conversion of up to two acres of wetlands per farm tract for increasing agricultural production. These topics, along with many other concerns with the proposal are discussed in depth below.

Our concerns remain (see our August 28, 1998, letter on the July 1, 1998, proposal) regarding the expanded scope of eligible waters to include all non-tidal wetlands, excluding non-tidal wetlands contiguous with tidal waters, and the inclusion of rare and irreplaceable wetlands that cannot be mitigated. General permits are expedited permits that receive virtually automatic approval and that lack opportunities for public comment and agency review. We continue to believe that they should be used in limited circumstances for projects that meet tests for avoidance, mitigation, minimal impacts, public notice, and other important safeguards.

General Concerns

Treatment of mitigation:

One of Audubon's priority concerns related to the replacement permit package is the proposed treatment of mitigation for impacts to wetlands. Our concerns focus around several key areas:

use of upland buffers to compensate for wetland impacts
other types of mitigation that allow for net losses of wetland functions and/or acreage
lack of commitment to "no net loss" of wetlands within the NWP program
discretionary authority to District Engineers whether to require mitigation
preferential treatment of mitigation banks and in-lieu-fee arrangements
allowance for mitigation "buy-downs"

Upland Buffers as Mitigation
The proposal promotes the establishment of upland buffers as compensatory mitigation for impacts to wetlands, "Vegetated buffers can be used to provide out-of-kind compensatory mitigation for wetland impacts where the District Engineer determines that such mitigation for wetland impacts is the best, ecologically, for the aquatic environment" (64 Fed. Reg. 39253). The proposal makes the statement that "upland vegetated buffers are generally as effective at protecting open water quality as wetland buffers…"(64 Fed. Reg. 39344). We are aware of no research that supports this statement. While upland buffers provide some of the same functions as wetlands, they cannot be considered functionally equivalent. Wetlands retain nutrients and other pollutants for longer periods of time, allowing for uptake and binding of pollutants to occur that may not occur in upland buffers.

The purpose behind the promotion of upland buffers seems to be revealed in the statement that the Corps "…cannot require compensatory mitigation for upland impacts, but we can require, as compensatory mitigation, upland vegetated buffers that protect water quality and aquatic habitat" (64 Fed. Reg. 39271). Audubon strongly opposes sacrificing wetlands in order to make up for statutory inadequacies in protecting upland buffers. While Audubon recognizes the importance of vegetated upland buffers and supports their establishment to help replace some of the functional losses caused by wetlands destruction, we believe that this should only occur in addition to a minimum acre-for-acre wetlands restoration requirement.

Other types of mitigation
The proposal states that "examples of mitigation that may be appropriate and practicable include, but are not limited to: reducing the size of the project; establishing and maintaining wetland or upland vegetated buffer zones to protect aquatic resource values; and replacing the loss of aquatic resource values by creating, restoring, enhancing, or preserving similar functions and values, preferably in the same watershed…" (64 Fed. Reg. 39367-8). Audubon strongly objects to mentioning a step in the sequencing process - minimization - as a form of mitigation. Avoidance and minimization of impacts must occur prior to consideration of compensatory mitigation for unavoidable impacts under Section 404 (b)(1) guidelines.

We also object to the unrestricted use of wetlands enhancement and preservation of existing wetlands as mitigation. Although both may have positive benefits to the aquatic environment, they should only be used to supplement acre-for-acre replacement of wetlands through restoration. We encourage the Corps to place limitations on wetlands creation as mitigation since the success rate of such projects is very low.

Lack of commitment to "no net loss"
The notice states that, "for the NWP program, the purpose of compensatory mitigation is 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." (64 Fed. Reg. 39259).

It seems contradictory for the Administration to promote the Clean Water Action Plan goal of achieving a significant net gain in wetlands acreage and at the same time to back away from a commitment to "no net loss" within the regulatory program. Audubon especially objects to the statement that "Other Federal wetlands programs, such as the Wetland Reserve Program, help increase the quantity of the Nation's wetlands and achieve the 'no net loss' goal "(64 Fed. Reg. 39342). Taxpayer-financed restoration programs should not be used to subsidize development, and make up for shortfalls in mitigation requirements. Audubon played a key role in the establishment of the Wetlands Reserve Program and continues to be a strong advocate of this program. WRP was never intended to subsidize on-going destruction of wetlands.

Discretionary authority whether to require mitigation
The proposal gives District Engineers broad discretionary authority to decide if mitigation should be required for a particular project. This broad discretionary power to District Engineers could lead to widely varying levels of protection for aquatic resources across the country. It is Audubon's position that the Corps should require the submission of a mitigation proposal for all impacted waters of the U.S. with each Preconstruction Notification (PCNs).

Preferential treatment of mitigation banks and in-lieu-fee arrangements
Although moderated somewhat since the original draft, the current draft proposal still gives preference to the use of mitigation banks and in-lieu-fee arrangements to compensate for wetlands destruction. The proposal states that the Corps recognizes "… that mitigation banks and in lieu fee programs are often more practicable and successful because of the planning and implementation efforts typically expended on these projects by their proponents" (64 Fed. Reg. 39272). We are aware of no studies that substantiate this statement. We understand that the National Research Council will soon initiate a study that will contribute to our understanding of the relative success rates of various types of mitigation. Pending the completion of this study, it is premature to establish a preference based on a scientifically unproven presumption. While some types of mitigation may decrease the Corps monitoring workload, it is inappropriate to provide a preference for any specific type of mitigation. Instead, mitigation should be chosen for its potential to compensate for both the acreage and functional losses of the impacted aquatic resource.

Allowance of mitigation "buy-downs"
The proposal allows projects with more than minimal impacts to use mitigation to reduce impacts in order to qualify for a NWP. Audubon strongly objects to the use of mitigation "buy downs" to enable the use of a NWP. This is especially important since the Corps admits that it "…cannot fully monitor all of the compensatory mitigation that is required as special conditions to many NWP authorizations" (64 Fed. Reg. 39274). How can mitigation be determined to reduce a project's impacts to minimal if such mitigation is not monitored to determine if it is successful?

Allowing such mitigation buy-downs means that projects with more than minimal impacts are able to avoid the Section 404 (b)(1) requirement of an off-site alternatives analysis. The proposal also does not explicitly prohibit the use of mitigation to reduce impacts to fit under acreage thresholds of the NWPs. While this does not seem to be the Corps intent, the language on this issue should be explicit.

Audubon Recommendation on Mitigation
The Corps should strongly re-affirm commitment to "no net loss" of wetlands within the NWP program in the final draft of the permits. The final rule should also require submission of detailed mitigation plans for all losses of waters of the U.S. as part of the PCN. Mitigation for wetland impacts should involve, at the very minimum, an acre-for-acre, in-kind replacement through restoration of wetlands. Restoration and other types of supplementary mitigation, including the establishment of upland buffers and the preservation or enhancement of existing wetlands could be used to supplement this acre-for-acre wetland restoration to improve functional replacement of the lost systems. General Condition 19 on mitigation should state a specific preference for wetland restoration activities in mitigating wetland impacts.

There should be no preference for mitigation banking or in lieu fee systems within the NWP program. Instead, the final draft should advise District Engineers to seek the best possible in- kind mitigation, located consistent with the Corps/EPA MOA on mitigation that has the best chance of replacing both acreage and function of the lost resource. Mitigation buy-downs to enable a project to meet the minimal effects requirement of a NWP should be explicitly prohibited.

Stream Impacts
Audubon objects to the abandonment of a linear foot limitation on stream impacts. When the Corps reissued NWP 26 in December 1996, it stated that the permit could not be used to authorize destruction of more than 500 linear feet at a time. In the current proposal, the Corps has dropped this limit, leaving overall acreage caps as the only limits. The proposed three acre limit on NWP 39, for example, would allow well over one mile of a ten-foot wide stream to be altered. This would result in unacceptable impacts to the aquatic system.

Audubon Recommendation on Stream Impacts
The Corps should re-institute a 250 linear foot limit on all stream impacts under NWPs to ensure that the permits result in no more than minimal impacts to the aquatic environment.

Lack of Commitment to Monitoring or Improved Data Collection
The Corps proposal states that they "…do not have the resources to provide field verification of the adverse effects of all activities authorized by NWPs. We also cannot fully monitor all of the compensatory mitigation that is required as special conditions to many NWP authorizations" (64 Fed. Reg. p. 39274). While this may be true, such a statement seems to indicate that the Corps has "thrown in the towel" on monitoring.

Without monitoring, the Corps has no way of knowing if mitigation will be completed, let alone that it will succeed in offsetting the impacts of approved projects. Similarly, the proposal notes that the Corps will not delay issuance of a NWP pending verification of wetlands determination. If sufficient resources are lacking, then the Corps needs to request adequate funding from Congress to fulfill its statutory responsibilities. This cannot be used as an excuse to allow more than minimal impacts to occur under the NWP program.

Audubon is concerned that the Corps apparently will not gather the data necessary to determine whether the NWPs are resulting in more than minimal impact to the aquatic environment. The notice states that "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 only 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" (64 Fed. Reg. 39272).

With this in mind, it is hard not to be skeptical of the Corps claims that between May 1, 1997 and December 31, 1997, for every acre destroyed, three acres of compensatory mitigation was required under NWP 26 as a result of residential, commercial, and institutional development activities (64 Fed. Reg. 39310). These data are used to predict the effects of NWP 39 on the aquatic environment. Yet they are meaningless since it is impossible to determine the net effect on the aquatic environment. What proportion of this mitigation, for example, was enhancement or preservation of existing wetlands or uplands? Neither of these forms of mitigation replace the lost acreage of impacted wetlands. Audubon believes that the modest steps needed to include type of mitigation when data are entered from PCNs are justified by the need to better understand and monitor the impacts of the NWP program. Without improved data collection, the Corps should not be promulgating any NWPs that allow for more than minimal impact without mitigation.

Audubon Recommendation on Monitoring and Data Collection

The Corps should commit to monitoring and enforcing the terms of permit authorizations, and should specifically not issue authorizations without verifying wetland determinations. Further, the Corps should establish a data collection system that accurately describes the types of mitigation being used in order to document progress towards the no net loss goal.

Narrow Definition of Cumulative Impacts
While general permits are allowed only for activities that will result in no more than minimal impact either individually, or cumulatively, the Corps has proposed an extremely narrow definition of "cumulative impacts" that will render this statutory restriction nearly meaningless. The proposal improperly defines cumulative impacts as only those impacts resulting from permits granted by the Corps. This definition ignores historical and on-going unpermitted losses in a geographic area. It also sets an improbably high hurdle for proving that more than minimal cumulative impacts have occurred by stating that: "to prohibit the use of general permits in a watershed or other geographic area, the District Engineer must demonstrate that more than minimal cumulative adverse effects on the aquatic environment are caused by the Corps permit decision. This demonstration must include clear, extensive and unequivocal evidence that activities regulated pursuant to Section 404 of the Clean Water Act of Section 10 of the Rivers and Harbors Act are causing the cumulative adverse effects on the aquatic environment, not unregulated activities" (64 Fed. Reg. 39278). This definition of "cumulative impacts" will allow for continued losses in areas that have suffered historically significant losses and/or those areas suffering from unpermitted drainage, such as those regions experiencing large losses due to the Tulloch Rule loophole.

Audubon Recommendation on Cumulative Impacts
The final rule should recognize that "cumulative impacts" include all losses of aquatic habitat in a geographic area, including permitted and un-permitted losses, secondary effects, etc. District Engineers should make determinations, based on state or federal coordinating agency recommendations, that an area has suffered, or is about to suffer, more than minimal impacts. They should then be required to revoke NWPs in these areas.

Reduced Agency Coordination
The Corps proposes to discontinue agency coordination for NWP impacts of less than one acre. Audubon objects to this proposal in that it unnecessarily restricts the information available to Corps staff in verifying the accuracy of information contained in a PCN and in determining if the permit will result in more than minimal impact. The proposal's heavy reliance on discretionary authority by District Engineers to boot out projects with unacceptable impacts makes agency coordination even more important. Since Corps field verification of NWPs is presently rare, the more coordination by other agencies, the better the information they will have to evaluate a PCN.

Coordinating agencies often have site-specific knowledge of an area that would reveal whether a project might have unacceptably large impacts. For example, the proposal relies upon discretionary authority of the District Engineers to boot out projects with unacceptable impacts to source waters for drinking water and critical groundwater recharge areas. Yet such site-specific information may only be held by other state or federal agencies.

Although the notice states that internet publication of PCNs is impractical, no good justification is given. Since the information is already entered into computer databases, it should not take much additional effort to make some of the basic information available to the public on-line. This would allow neighboring landowners and other potentially impacted parties to be made aware of a project and offer relevant information to the Corps regarding the accuracy of the information contained in the PCN. Such a citizen-right-to-know provision is an important safeguard that can be instituted at minimal cost to the Corps.

Audubon Recommendation on Agency Coordination
The Corps should coordinate with federal and state resource agencies on all projects for which a PCN is required, not merely those with more than 1 acre of impacts. Basic information from PCNs should be made available for viewing on-line within 15 days of receipt by the Corps.

Reliance on District Engineers' Discretion and Regional Conditioning
Throughout the proposal, the Corps rejects modest suggestions for ways to tighten and improve the NWPs, stating that District Engineers (DEs) have the discretion to require more of an applicant, including an individual permit if necessary. Yet the proposal does not clearly require a DE to exercise their authority to require an individual permit when impacts are predicted to be more than minimal. DEs currently have the authority to require individual permits for projects with unacceptable impacts, yet this authority is very rarely used. District Engineers therefore need clear guidance on their statutory responsibilities. The notice does not explain what criteria the Corps used to decide whether a safeguard should be written into a permit and when it should be left to DE discretion. It would be far more efficient to include strong national standards on the permits rather than to rely upon the discretion of each District Engineer.

Similarly, the Corps has placed a great deal of confidence in the ability of district offices to develop regional conditions that will ensure that the NWPs result in no more than minimal impact in a specific geographical area. Audubon has reviewed all proposed regional conditions and notes that, while some districts are doing an excellent job at developing these conditions, other districts are refusing to take this task seriously. This results in varying levels of protection for aquatic resources across the country. This is especially true for the Omaha district, which, although it has jurisdiction over some of the nation's most valuable and irreplaceable wetland systems, is proposing to revoke all NWPs and institute a much less protective permitting process. If the Corps can find no way of requiring districts to take on this responsibility, it should reduce acreage thresholds and institute stronger national conditions that recognize significant types and areas of aquatic habitats for protection.

Audubon Recommendation on DE Discretion and Regional Conditioning
The Corps should include strong national conditions governing NWP requirements, such as mitigation, protection for sole-source aquifers, protection for rare and irreplaceable types or geographic areas of aquatic habitats and when an individual permit must be required. District Engineers must require individual permits for all projects that could result in more than minimal impacts. Specific guidance and minimum standards for development of regional conditions should be sent to all district offices.

Inconsistent Treatment of Wetland Valuation
Audubon is concerned by the varying treatment of the concept of wetland valuation. The proposal states in one instance that "we believe that using functions and values of aquatic resources to determine the maximum acreage limit for a NWP is impractical because we do not currently have a standard method for measuring or assessing aquatic resource functions and values" (64 Fed. Reg. 39306). Yet, in numerous other sections of the proposal, the Corps relies on unscientific determinations of wetlands "value:"

"district engineers will not place less consideration on adverse effects to other types of waters for the sake of wetlands, especially low value wetlands" (p. 39253); "because the Corps program causes the avoidance of most high value wetlands, most permitted impacts are to moderate or low value wetlands" (p. 39271); "On the other hand, if the waters of the United States lost as a result of the authorized work are low value, providing few functions and values, a smaller acreage of compensatory mitigation may be appropriate to offset the lost functions and values of that area" (p. 39308); and "Low value wetlands and low value ephemeral and intermittent streams may be the best places to locate SWM facilities, to reduce adverse effects to higher value waters by attenuating storm flows and preventing pollutants from further degrading those areas" (p. 39326).

If assessment of wetland values cannot be used to limit the impact of NWPs, then untrained Corps staff should not be allowed to make ad-hoc judgements regarding wetland value to determine which resources are disposable or relatively more valuable. Such valuation judgment calls tend to favor certain functions and values over others, usually leading to a lower value designation for small and seasonal wetlands.

Audubon Recommendation on Valuation
Absent a science-based assessment methodology, all references to "low" or "high" value in relation to aquatic systems should be deleted. All systems should receive protection from unnecessary degradation and impacts to all aquatic habitats should be fully mitigated.

Concerns with Specific Permits

NWP 3 - Maintenance

While Audubon appreciates the intent of this permit, we have concerns with the ambiguous language relating to maintenance dredging after storms and floods. We believe that it has great potential for abuse in altering streams to halt natural erosion processes. The permit could lead to the repeated excavation of natural sloughage and permanent armoring of banks in an effort to freeze the natural meandering of streams and rivers. This could have negative consequences for natural processes in both the stream itself and in its surrounding riparian and wetland habitats. The permit can be used following "recent storms, floods or other discrete events." As noted by staff of the U.S. EPA Region IX, "Most western hydrologists acknowledge that the flows that produce the typical hydromorphology of a stream and insure its health are the 10-25 year events; these are the events that would be negated by the use of the NWP" (EPA Region IX correspondence to EPA Headquarters, August 12, 1999).

Audubon Recommendation on NWP 3
Audubon recommends that the permit be re-drafted to specifically prevent the type of abuses mentioned above. Section (iii) of the permit should be limited to catastrophic events and only where the damage represents a serious threat to life and property. The permit should specifically not allow for bank stabilization related to construction or re-construction in FEMA designated floodplains with the exception of vital public infrastructure such as roads and bridges.

NWP 12 Utility Line Activities

Audubon has no objection to Sections (i) and (iii) of this permit which allow for utility backfill and bedding and foundations for overhead utility lines as long as such foundations are as small as possible. We strongly object, however to sections (ii) and (iv) which allow for utility line substations and access roads to be constructed in waters of the U.S.

Under 404 (b)(1) guidelines, less damaging alternatives are presumed to exist for non-water dependent projects affecting special aquatic sites. Utility line substations usually can be located to avoid waters of the U.S. There are other alternatives in most instances to permanent access roads that meet the basic project purpose. These activities, therefore, should not be included in a general permit. The temptation id often strong for utilities to take the "path of least resistance" when locating such facilities. Landowners are more reluctant to sell productive farmland or other developable land to utilities. This permit will simply make it easier for utilities to acquiesce to these requests to build in economically less valuable areas. Allowing these activities in floodplains is ill-advised, as floods could easily destroy substations and result in serious pollution to the waterway.

Audubon Recommendation on NWP 12
Audubon recommends that sections (ii) and (iv) be removed from the permit.

NWP 14 - Linear Transportation Crossings
Audubon objects to any expansion of the acreage cap of this permit. One third of an acre should be sufficient for expansion of existing road crossings. New road crossings that exceed this acreage should not be permitted under a general permit. They should be designed to take advantage of the least environmentally damaging alternative alignment and design. This level of review will not occur under the general permitting program. We strongly support the requirement of mitigation to offset all losses to waters of the U.S. for both public and private crossings.

Audubon Recommendation on NWP 14
The Corps should revoke the proposed acreage cap expansion to NWP 14. A mitigation requirement for all impacts to waters of the U.S. should be added to the permit.

NWP 27 - Stream and Wetland Restoration Activities
This permit relies on the applicant's stated intent to restore a wetland or stream system. However, it does not subject applicants to enforceable success criteria that will ensure project success. Failure rates for wetland and stream restoration projects are quite high. In order for this permit to result in no more than minimal impacts to the aquatic environment, it must include enforceable success criteria. If waters of the U.S. are destroyed as part of a failed restoration attempt, then enforcement must be used to correct, or (where such projects cannot be corrected) mitigate these losses. Otherwise, serious impacts to the aquatic environment could result.

We object to the use of this permit to change aquatic habitat types under the guise of restoration. If changes in aquatic type are to be allowed, mitigation must be required to ensure against more than minimal losses of wetland and stream functions.

Audubon also strongly objects to the use of this permit to authorize the construction of mitigation banks in waters of the U.S. Currently, the only public notice that is circulated for proposed or expanding mitigation banks is a Section 404/401 public notice for impacts to any waters existing on-site. The modification of NWP 27 will remove this opportunity for the public to comment on, or even be made aware of proposed or expanding mitigation banks.

Audubon Recommendation on NWP 27
All projects permitted through NWP 27 should be subject to strict, enforceable success criteria. All failed projects should be required to correct, or if not feasible, to mitigate for impacts to waters of the U.S. Mitigation should be required for projects that result in a net loss of wetland or stream function or acreage.

The Corps and EPA should establish a mitigation banking approval process that provides for meaningful public review of banks and proposed site plans. Pending the establishment of such a process, bankers should be required to obtain individual permits for any work at a bank site.

NWP 39 - Residential, Commercial and Institutional Developments
Audubon supports the indexing approach to this permit as an appropriate way to minimize impacts on-site according to project size. We believe, however, that a separate indexing approach for stream impacts based on linear foot limits is necessary, with a 250 foot maximum for all streams in order to adequately protect these systems. Otherwise, since even small acreage caps allow for large amounts of stream destruction, there is little incentive for developers to avoid streams where possible. We also strongly support the requirement that those using this permit submit a water quality management plan. If properly implemented, this requirement will help to ensure that downstream water quality and quantity receive consideration.

Applicability of Permit
We remain strongly opposed to the inclusion of non-essential "attendant features" as a part of a "single and complete project" for the purposes of this permit. With this provision, the Corps appears to be making new administrative policy regarding "basic project purpose." Both EPA and Corps guidance on this issue has been consistent in treating "basic project purpose" generically (i.e. "housing"). Project amenities should not be allowed to justify otherwise avoidable impacts. Otherwise, according to the U.S. EPA, Region IX, "in doing so, it will be difficult to impossible for the Corps or EPA to control how 'basic project purpose' is defined for projects requiring individual permits, and to determine if discharges associated with such projects are avoidable" (EPA Region IX correspondence to EPA Headquarters, August 12, 1999).

Attendant features such as roads, utility lines, stormwater management facilities, and recreational facilities are covered by other NWPs and should not be duplicated in this permit. There is especially no justification for including golf courses and playing fields in this permit. These types of "attendant features" undermine the statutory requirement that the permits cover activities similar in nature.

Audubon opposes allowing NWP 39 to permit "expansion of existing developments" because this could allow the destruction of aquatic resources that were practicably avoided when the original project was constructed. This could seriously undermine the intent of the 404(b)(1) alternatives analysis guidelines and NEPA considerations of "piecemealing."

Conditions of Permit
While the responsiveness summary states that it is the Corps' intention to provide equal consideration for open and flowing waters and wetlands, the permit has been written to give open and flowing waters greater consideration in several important ways. While a PCN is required for any impacts to open waters, the register notice states that wetlands will only receive additional scrutiny if district offices include restrictions in their regional conditions. Even more significantly, Paragraph (i) of NWP 39 requires protection of vegetated buffers by "deed restrictions, conservation easements, or other legal methods" (64 Fed. Reg. 139, 39311). Yet in responding to a suggestion that all remaining wetlands on a site be protected under a conservation easement, the Corps states that such a requirement could be considered a taking of private property. The Corps frequently notes in the register notice that the use of NWPs is optional and if an applicant objects to conditions of a particular NWP they can apply for consideration under an individual Section 404 permit. It is difficult to believe that requirements to protect wetlands or upland buffers on site, without credit as mitigation, could constitute a taking of private property when it does not represent the denial of a permit.

The Corps reasoning for discouraging the submission of detailed compensatory mitigation plans with PCNs is difficult to understand. To discourage the submission of meaningful plans simply to facilitate rapid review of permits is inappropriate. It is much harder to remedy inadequate mitigation plans after a NWP has been granted. All projects should be required to submit detailed plans up front and have these plans carefully reviewed prior to a NWP being granted. We also strongly object to allowing projects to proceed without mitigation if the applicant produces "justification" for not offering compensatory mitigation. All projects should be required to mitigate for their impacts in order to avoid cumulative impacts to the environment.

Loopholes in Permit
Audubon has serious concerns with several loopholes written into NWP 39. Foremost among these is an allowance for subdivisions to exceed the indexed acreage limit if the District Engineer makes the determination "that the individual and cumulative adverse environmental effects would be minimal, high quality wetlands would not be adversely affected, and there would be an overall benefit to the aquatic environment" (64 Fed. Reg. 139, 39362). This loophole promotes an inappropriate and highly subjective determination of wetland functions and values, when the Corps has already stated they "do not currently have a standard method for measuring or assessing aquatic resource functions and values" (64 Fed. Reg. 139, 39253). It would allow District Engineers to determine that ponds or protected uplands on-site are somehow provide greater benefit to the aquatic environment than wetlands -- something that District Engineers have no absolutely no basis for determining. This provision could also be interpreted to allow mitigation "buy downs," whereby a District Engineer is allowed to determine that a project, with mitigation, will provide greater benefits to the aquatic environment. We strongly object to the use of "buy downs" since mitigation may not succeed and, if performed in a mitigation bank, will not replace the site-specific functions of the wetlands destroyed, resulting in more than minimal impact to the environment.

Another damaging loophole is the allowance for phased projects to be treated as separate single and complete projects if determined to have "independent utility." How will field personnel determine if the phase has "independent utility" since many of the "attendant features" allowed under NWP 39 already seem to have independent utility to the actual building constructed on a foundation or pad. An example could be a ball field, which, if built at the same time as a housing development, may be considered an "attendant feature," but if constructed a year or so later, may be considered to have "independent utility." This loophole will provide developers with the means to get around the maximum acreage threshold.

We strongly support the requirement that wetlands converted on agricultural lands under NWP 40 be included in the maximum indexed acreage allowed under NWP 39. We are concerned, however, with how this will be tracked. Since the Corps has delegated the implementation of NWP 40 to NRCS for all program participants, there will be no records by which Corps field offices can determine if NWP 40 has been used on a particular property. As our comments reflect in the discussion of NWP 40, we do not believe that delegation to NRCS is appropriate and believe that Corps should maintain detailed records related to the use of NWPs on all properties.

Audubon Recommendation on NWP 39
Audubon recommends that the Corps limit the use of this permit to the construction of buildings on pads or foundations and attached/integral features such as garages, driveways and parking lots. A written alternatives analysis should be required. Impacts should be indexed as proposed, with a maximum 250 linear foot limitation on stream impacts. A "single and complete project" should be limited to the actual building and attached/integral features. The Corps should require mitigation for all impacts to waters of the U.S. If the Corps continues to treat all associated features as part of the "single and complete project," then all remaining waters on site should be protected through a conservation easement to ensure against future destruction of avoided areas.

NWP 40 - Agricultural Activities
Audubon opposed issuance of this permit in 1996 and now strenuously objects to its proposed expansion to cover destruction of waters of the U.S. for increased agricultural production. Conversion of agricultural wetlands continues to be the largest proportion of wetland losses in the country. While the register notice states that one of the goals of this permit is to "provide some regulatory relief to agricultural producers," it does not give any justification for why such relief is needed or how exactly it is expected to help farmers. The current agricultural crisis in the U.S. springs from problems such as overproduction, commodity pricing, droughts and flooding. All of these problems will be exacerbated, not ameliorated, by conversion of additional wetlands and other waters.

A recent USDA, Economic Research Service Report "Wetlands and Agriculture: Private Interests and Public Benefits" (Heimlich, et. al., 1998) points out that conversion of wetlands, in general, reduces overall farm income on the national level. While an individual producer may make a little extra money, the farm community as a whole does not benefit from the increased production and society at large is forced to bear the cost of lost aquatic functions.

It is difficult to make a case that individual producers would gain benefits from converting wetlands on their property -- if they are required to fully offset these losses through mitigation as required for this permit to result in no more than minimal impacts to the aquatic environment. Most meaningful mitigation will cost significantly more than the value of the land in question. It is unclear, therefore, why this permit is needed and how it will be implemented.

A significant loophole in the mitigation requirements of NWP 40 is an allowance for discharges of dredged or fill material into waters of the U.S. associated with construction of mitigation projects. These losses are not included in the total acreage threshold, nor do they have to be mitigated. This will allow even greater amounts of waters of the U.S. to be destroyed, under the guise of mitigation for other impacts.

The register notice repeatedly represents NWP 40 as an "equity" issue between developers and agricultural producers. Clean Water Act requirements on general permits refer to "activities similar in nature" and "no more than minimal impacts." They do not call for equity in one's ability to destroy aquatic systems. For many reasons, this permit amounts not to equitable treatment, but to special treatment of agricultural producers. Developers, in using NWP 39, must avoid impacts on-site, while producers are not subject to this condition. While developers are subject to regional conditions on the use of NWP 39, agricultural producers who are program participants would not be subject to either Corps regional conditions or to local minimal effects criteria. While developers are limited under NWP 39 to an indexed acreage, based on their total project size, producers are not subjected to equivalent requirements. While NWP 39 is not allowed in floodplains, producers can use NWP 40 to drain wetlands in floodplains. While developers are required to use buffers around remaining waters under NWP 39, agricultural producers are subject to no such requirements under NWP 40.

The register notice states that "It is important to note that draining and filling wetlands to increase agricultural production is often reversible. Agricultural lands that were previously wetlands are often the easiest to restore because they require less effort and expense to restore than wetlands that were filled to create residential subdivisions or commercial facilities. Although this NWP may be used to fill a particular area to increase agricultural production, that area may be restored at a later time" (pages 39312-3). This statement seems to imply that it is acceptable for agricultural producers to drain wetlands and then apply for taxpayer funds to restore them. It also ignores the fact that wetlands that are converted to agricultural production may be converted to development uses at any time in the future without penalty.

We strongly object to the delegation of this permit to the Natural Resources Conservation Service for USDA program participants. The Clean Water Act does not give the Corps the authority to delegate portions of the 404 program to USDA. NRCS wetland determinations have been shown to seriously underestimate wetland acreage. The use of these designations therefore, could lead to more than minimal adverse effects on the aquatic environment. NRCS also has little experience in evaluating, monitoring, or enforcing mitigation proposals.

The use of "farm tracts" rather than "farms" for the purpose of this permit invites abuse. Tracts are not immutable units - they can be subdivided. Creative subdivision of tracts would allow for many more acres of wetlands to be drained. Although the Corps' intention may be to allow this permit to be used only once per tract, the register notice is confusing and ambiguous. It could be read to allow for multiple uses per tract, through time, as long as each was considered a single and complete project. While the Corps may be relying upon the NRCS to keep track of the use of this permit, there is no MOA with the NRCS that ensures that this will happen. A lack of tracking the use of this permit could mean that it is used an unlimited amount of times per tract until all wetlands are drained, with little or no mitigation required.

While the permit gives some recognition to the special value of prairie potholes, playas, or vernal pools by instituting an indexing approach and lowering the threshold of impact to these systems to one acre, the generally small size of these wetlands and the potential for unrestricted repeat use of the permit leave these systems essentially unprotected. There should be no impacts allowed in these important systems.

Audubon Recommendation on NWP 40
Audubon strongly objects to NWP 40 and believes that it should be revoked. If some type of agriculture NWP is needed, then it should be limited to impacts qualifying for NRCS minimal effects determinations (without mitigation) of under ¼ acre. This would be sufficient for agriculture producers to deal with unavoidable impacts to aquatic habitats. In no case should the Corps delegate any part of the NWP program to NRCS.

NWP 41 - Reshaping Existing Drainage Ditches
Audubon appreciates the stated intent of this permit to improve the structure of existing drainage ditches to benefit the aquatic environment. We are concerned, however, that such a permit may not be able to be drafted tightly enough to prevent abuse. Most coordinating agencies have noted serious concerns with the way this permit has been drafted.

An important change that should be made is in the apparent treatment of channelized streams as drainage ditches. The proposal states that "drainage ditches constructed in waters of the United States (for example, by excavating wetlands or stream channelization) remain waters of the United States even though they were heavily manipulated to increase drainage." The inclusion of channelized streams in this definition effectively removes protection for vast stretches of waterways that have been channelized.

Audubon Recommendation on NWP 41
This permit should not be implemented unless it can be redrafted to meet the concerns of all the coordinating agencies. At a minimum, there needs to be a 500 linear foot limitation, with a 250 foot linear foot reporting requirement. In addition, applicants should be required to obtain a minimal effects agreement and certification that best management practices have been employed from the Natural Resources Conservation Service. This will help ensure that projects are truly designed to improve water quality. The definition in the final rule should clarify that while ditches constructed through waters of the United State remain waters of the United States, pre-existing waterways are not drainage ditches, even if they have been channelized.

NWP 42 - Recreational Facilities
Audubon maintains its strong objection to the use of this permit for golf courses, ski resorts or structures as well as for expansion of any existing facilities. Structures should be required to use NWP 39 where indexing requirements based upon total project size apply. Allowing the use of this permit for expansion of existing facilities could allow for the destruction of aquatic systems that may have been practicably avoided under an individual permit.

All impacts to waters of the U.S. should be avoided and minimized to the greatest extent practicable. Mitigation for all impacts should be required in the form of on-the-ground restoration activities. Preservation of buffer areas or adjacent habitats is not an appropriate form of mitigation in areas where substantial amounts of natural vegetation should already be protected as an integral feature of the recreational facility.

Audubon Recommendation on NWP 42 Audubon believes that NWP 42 should be restricted to total impacts of up to 1/3 acre for linear impact passive recreational activities such as hiking and biking trails whose re-design to avoid aquatic habitats would be overly difficult. In all cases, wetland mitigation should be required in the form of restoration. The permit should be allowed only once per property. Audubon is strongly opposed to the use of this permit for structures, attendant features and for golf courses and ski resorts.

NWP 43 - Stormwater Management Facilities
Audubon is opposed to NWP 43 as drafted. The permit allows for up to two acres of waters of the U.S. to be destroyed, with little meaningful mitigation. It is ironic that the Corps should propose to allow the further destruction of natural systems for the purpose of establishing engineered systems to compensate for past destruction of natural systems.

All proposed projects should be required to show that viable upland alternatives do not exist and that cumulative upstream loss of wetlands and their flood water storage functions would not occur. The drastic and unnatural change in hydrology, increase in pollutants, and alteration of slopes and depths would likely lessen biodiversity and could substantially change or destroy the functioning of an existing wetland or stream system. In no case should this kind of alteration be considered self-mitigating, especially when maintenance activities may destroy any aquatic habitat characteristics that develop.

Audubon Recommendation on NWP 43

Audubon is opposes this permit and believes it should be withdrawn.

NWP 44 - Mining Activities
Audubon is strongly opposed to this permit. Although the proposed permit is far narrower than that proposed last July, it still does not contain sufficient safeguards to ensure that no more than minimal impacts occur to aquatic systems. How mining activities will affect a stream, and how to minimize those effects, is extremely site-specific and should be regulated through individual permits. Gravel and other aggregate mining can have dramatic effects on stream hydrology and the manner in which sediment moves through a stream. These effects are not limited to the mining site itself, but can spread downstream and upstream for distances of several miles, significantly impairing both ecological health and water quality. The potential impacts of aggregate mining in the channel and floodplain, even of the smallest streams, are too great to justify use of a nationwide permit for this activity.

Limiting application of NWP 44 to very small streams and to large rivers will not reduce the individual and cumulative effects of authorized projects to "minimal" as required by section 404(e). Small perennial and ephemeral streams are a critical part of most watersheds; indeed, in many watersheds most of the water during high flow events originates in these streams. If they are disrupted and unstable, the effects will be felt in the larger streams into which they flow.

Audubon Recommendation on NWP 44

The Corps should not issue a nationwide permit for aggregate mining.

Concerns with General Conditions

GC 19. Mitigation
See discussion on pages 1 through 4 of this letter.

GC 20. Spawning Areas
The Corps inappropriately limits the definition of "spawning areas" to those areas used by species that are harvested commercially by humans. Maintaining the "biological integrity" of waters of U.S. requires consideration of all aspects of an aquatic system, not just those which have direct commercial value. Commercial fish do not exist in a vacuum. They are just one part of a complex ecosystem. If the spawning areas of their prey species are not protected, commercial fish will not survive either.

Audubon Recommendation on GC 20
Spawning areas should be defined as any area used by a concentrated population of aquatic species for reproduction.

GC 23. Waterfowl Breeding Areas
Audubon does not understand the Corps' reluctance to expand this general condition to "Migratory Bird Breeding Areas" in order to include areas used by other migratory birds that depend upon wetlands. The notice states that "including other migratory birds in this general condition would result in an inappropriate increase in the Corps scope of analysis because many migratory bird species are not dependent on wetlands and other waters of the United States (64 Fed. Reg. 39346). This is easily remedied by simply adding the designation "wetland-dependent" to "migratory birds."

Audubon Recommendation on GC 23
The Corps should expand this general condition to cover all wetland-dependent migratory bird species.

GC 25. Designated Critical Resource Waters
While Audubon supports the concept of listing certain "Critical Resource Waters" wherein the use of certain NWPs would not be allowed, we believe that the limited definition given in the register notice will result in little "value added" protection -- as most types of waters included currently receive special protection or would be included under General Condition 27. To utilize General Condition 25 in a way that would provide real protection to critical waters, the Corps should allow states and local governments to list waters they feel it appropriate to include in this category. Requiring the approval of the governor or state legislature is an unnecessary hurdle that ignores the expertise of these local authorities in determining which waters merit protection from expedited permitting.

Audubon Recommendation on GC 25
The Corps should allow state and local governments to list "Critical Resource Waters" for inclusion in this general permit. In addition, the use of NWP 13 (bank stabilization) should also be restricted in Critical Resource Waters.

GC 27. Fills within the 100 year floodplain
Audubon strongly supports this general condition as a well-targeted effort to halt expedited review of projects with the potential to increase flooding. We believe, however, that there are several additional activities that should be included in this general condition.

While this condition only prohibits "permanent, above-grade fills" in floodplains, we believe that the use of NWP 40 to drain wetlands for agricultural production in floodplains should also be prohibited. Whether destroyed by fill or drainage, the resultant loss of water-storage capacity within a floodplain would be the same. There is also a potential for wetlands converted under NWP 40 to later be sold to developers who will build structures that will be at high risk of flood damage.

Two other activities that should be included within General Condition 27 are utility substations and utility access roads approved under NWP 12. While utility backfill and bedding and foundations for overhead lines are appropriate in floodplains, alternatives more frequently exist for utility substations and access roads. Utility substations in particular pose an unnecessary threat of contamination to surface water if placed in flood-prone areas.

Audubon Recommendation on GC 27
Expand the floodplain restriction to cover all impacts to wetlands, not just "permanent, above-grade fills." Include utility substations and utility access roads under NWP 12 under this condition.

Concerns Related to Definitions Vernal Pool
This definition inappropriately excludes vernal pool systems that are found in other areas of the country. Vernal pool systems are found in the Midwest and East as well as in California. While ecologically unique in these various regions of the country, vernal pools are characterized by temporary flooding that prevents fish from becoming established. All are valuable systems supporting specially-adapted aquatic life and merit special protection.

Audubon Recommendation
The Corps should work with the U.S. Fish and Wildlife Service to develop a more general definition of vernal pools that includes all types of vernal pools found in the U.S.

Playa
The definition only recognizes playas found in Texas and New Mexico. Playas occur in a much broader area of the West and Southwest. All are important and difficult, if not impossible, to replace.

Audubon Recommendation
The Corps should work with the U.S. Fish and Wildlife Service to develop a more general definition of playa that includes the entire geographic range of this wetland type.

Conclusion

Audubon strongly urges the Corps to make revisions to this permit proposal to make it more protective of our country's valuable aquatic systems. Without strong standards for when general permits can be used and for mitigating all impacts, net losses of wetlands will continue within the NWP program. This will make it impossible to reach the Clean Water Action Plan goal of a net gain in wetland acreage.

We appreciate the opportunity to submit these comments on this important issue. Please do not hesitate to contact me or my staff, Julie Sibbing, at 202-861-2242 if you have questions on any aspects of our comments.

Sincerely,

Daniel P. Beard
Senior Vice President for Public Policy
National Audubon Society

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