Some Top Concerns and Recommendations Proposal to issue and Modify Nationwide Permits; Notice Federal Register - July 21, 1999 Treatment of mitigation. The proposal promotes the establishment of vegetated upland buffers as compensatory mitigation for impacts to wetlands in lieu of wetland restoration, creation, or enhancement. It also gives the District Engineer discretion to prefer this upland mitigation over wetland restoration efforts. This new policy would flatly contradict the Administrations pledge to pass 'no net loss' and achieve an annual net gain of wetland resources. The Corps' proposal turns the net gain goal into an amorphous 'net gain in aquatic resources' in which hypothetical increase in water quality would make up for loss of wetlands habitat and other functions. The proposal says "(we) cannot require compensatory mitigation for upland impacts, but we can require, as compensatory mitigation, upland vegetated buffers that protect water quality and aquatic habitat." The also argue that "(i)t is important to note that NWP compensatory mitigation requirements are not driven by the 'no net loss' goal, but will help support that goal." The proposal gives District Engineers broad discretionary authority to decide if mitigation should even be required for a particular project. It also ranks mitigation banks and fee-in-lieu mitigation schemes as the preferred option for mitigation. Recommendation: The final rule should emphasize that mitigation for wetland impacts be required for all projects impacting more than _ acre of wetlands. Further, mitigation should involve, at the very minimum, an acre for acre replacement of wetlands through wetland restoration activities. Upland buffers can be used as mitigation only above and beyond a minimum acre for acre replacement ratio of wetlands. There is no justification for a preference for mitigation banks or fee-in-lieu schemes. The choice of mitigation options should be selected according to which offers the best ecological opportunity to replace the site-specific functions, values and acreage of the impacted system. NWP 40. This agricultural permit has gone from bad to worse since the original draft of the proposal. In its current form, it would allow farmers to destroy up to 2 acres of wetlands on each tract of farmland they own in order to increase agricultural production. The vague language of the permit may even let this permit be used repeatedly on a single property over time. For all farmers enrolled in a USDA program (the vast majority), then the Corps would delegate implementation of the permit to the Natural Resources Conservation Service. The NRCS has come repeatedly come under fire from the conservation community for using flawed wetland determinations. In addition, the proposal explicitly forbids Corps Districts from placing regional conditions on the permit for USDA program participants. While the permit does place a one acre cap on prairie potholes, playas, and vernal pools (only those in California or nearby states), this would still allow for significant destruction of these valuable systems. Recommendation: NWP 40 should allow only up to _ acre impact for the purpose of increasing agricultural production and the Corps should not delegate responsibility to the NRCS for nationwide permits. There should be no impacts allowed to prairie potholes, playas, or vernal pools and the definition of vernal pools should be expanded to cover these valuable systems in their many forms throughout the country. Stream impacts. None of the proposed replacement permits include a cap on linear destruction of stream apart from the general acreage cap. At best, some include a 'pre-construction notification' (PCN) requirement for impacts greater than 500 linear feet, which provides no assurance that a stream will receive meaningful protection, or that stream advocates will hear of proposed projects. Recommendation: All the proposed permits should incorporate a 250 linear foot impact cap on the use of nationwide permits to approve impacts to ephemeral, intermittent, or perennial streams. Lack of Commitment to Monitoring or Improved Data Collection. At several points in the proposal, the Corps states that it will not commit to the basic steps it must take to properly document the impacts of the NWPs. The Corps' proposal states that "We 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." 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. The Corps also declines to improve data collection on mitigation under the NWP program: "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." Huh? Recommendation: 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. Use of NWP 27 to approve mitigation banks. The Corps states that NWP 27, a wetland and stream restoration NWP can be used to authorize the construction of mitigation banks in existing waters. Currently, the only public notice that is usually circulated for proposed or expanding mitigation banks is a Section 404 public notice for impacts to any waters currently 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. Recommendation: the Corps and EPA should establish a bank approval process that provides for meaningful public review of banks and proposed site plans. Pending that, bankers should be required to obtain individual permits for any work at a bank site. Definition of channelized waterways as "drainage ditches." The definition of 'drainage ditches' in the current proposal states that "Drainage ditches constructed in waters on the United States (e.g. 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. Recommendation: 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 44. The proposed permit is clearly far narrower than that proposed last July. Nonetheless, gravel and other aggregate mining can have dramatic effects on stream hydrology and the ways that 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. Recommendation: The Corps should not issue a nationwide permit for aggregate mining. Narrow definition of cumulative impacts. While the Clean Water Act only allows the Corps to issue general permits that will result in no more than minimal impact either individually, or cumulatively, the Corps has proposed an overly narrow definition of "cumulative impacts." The definition improperly defines cumulative impacts as those impacts resulting from permits granted by the Corps. It also sets an improbably high hurdle 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." Recommendation: The final rule should recognize that "cumulative impacts" include all losses of aquatic habitat in a geographic area, including permitted and unpermitted losses, secondary effects, etc. Further, District Engineers should be required to exercise their authority to require an individual permit if a NWP would result in more than minimal impacts on a cumulative basis. Reduced agency coordination. The Corps proposes to no longer coordinate with state and other federal agencies for any NWP impacts of less than one acre. For such projects they would no longer send copies of Preconstruction Notifications (PCNs) to any other agency. Yet the proposal's heavy reliance on Corps discretion to determine if the use of a general permit is appropriate for any given project makes coordination with other agencies even more important. Field verification of NWPs is presently rare. The Corps will need the input of coordinating agencies in order to make sure that NWPs do not allow for more than minimal impact. These agencies often have site-specific knowledge of an area that would show a project to have unacceptably high 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. Recommendation: 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. Heavy Reliance on District Engineers' Discretion. Throughout the July 21 proposal, the Corps rejects modest suggestions for ways to tighten and improve the NWPs with no better argument than the claim that District Engineers (DEs) have the discretion to require more of an applicant, including an individual permit if necessary. Yet the proposal does not require a DE to exercise their authority to require an individual permit when impacts are predicted to be more than minimal. By not requiring this action, there is little motivation for a DE to act. DEs currently have the authority to require individual permits for projects with unacceptable impacts, yet this authority is very rarely used. Nowhere does the notice explain what criteria the Corps uses 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 common-sense safeguards in the permits rather than relying on the discretion of each individual District Engineer. Recommendation: The Corps should include as national conditions all the proposed improvements to the proposal for which they cannot cite a reason for excluding (we can provide a list). District Engineers must require individual permits for all projects that could result in more than minimal impacts.

Wetland Advocates Continue to Influence the Corps Nationwide Permits March 1999 Update and Action Alert

Thousands of wetland advocates are continuing to strengthen the Corps of Engineers proposal to replace Nationwide Permit 26 which allows wetlands to be destroyed with almost no government scrutiny or opportunity for citizens to comment. Here's an update and a list of resources to help you go to bat for wetlands. Intended as a "quick" permit for projects with "minimal impacts", Nationwide Permit 26 has resulted in the destruction of thousands wetlands throughout the country. Even if your state is one of the few that has adopted their own wetlands permitting system and does not rely on the Nationwide Permits, wetlands and birds still need your help. Migratory birds that rely on wetlands in your state likely use wetlands in other states along their migration route where, in many cases, critical wetland systems are being incrementally destroyed. I. What You Can Do Today to Make a Difference This spring, the Wetlands Campaign continues to work with advocates and partner coalitions across the country to ensure that the final Nationwide Permits are more - not less- protective of wetlands than the current Nationwide permits. Here's where we're headed: Mid-March, 1999 Action: The Corps is threatening to further weaken its Nationwide Permits. The White House needs to hear from you. Take a minute to let the Administration know that you continue to care about this issue and that you want them to uphold their commitment to protect wetlands. Message? Tell the Administration to please ensure that the Corps does not weaken the safeguards announced by President Clinton in October to improve the Nationwide Permit Program. Thank the administration for supporting the safeguards and ask them to maintain their commitment to them. Nationwide Permits should only be used for projects that have minimal adverse impact on wetlands, that do not add to cumulative effects on a waterbody, and that meet tests for avoidance, mitigation, public notice and other safeguards. We need a nationwide permit program that provides more not less protection for wetlands. Address it to: George T. Frampton, Jr., Acting Chair, President's Council on Environmental Quality, 722 Jackson Place NW, Washington, DC, 20503. Late March, 1999 Action: The Corp's final proposed Nationwide Permit Proposal will be published in the federal register and we will post a link on our website. Once the proposal is released, states will have 60 days to decide whether to certify, certify with conditions, or deny each of the proposed Nationwide Permits. What You Can Do: Participate in your state's decisions regarding whether to certify, condition, or deny use of the Nationwide Permits in your state. Call the Wetlands Campaign if you would like help with this, sample comments, or contacts for other wetlands advocates in your region who you could team up with. June, 1999 Action: The Corp's final Nationwide Permits, with Regional Conditions, are scheduled to be published in the Federal Register. Once released, the public will have 45 days to comment. The Corp's current timeline estimates that the comment period will start June 15 and end July 30, 1999. What You Can Do: 1) Plan to comment on the Corp's final proposal and work with local coalitions to do the same; 2) depending on your local community consider asking your local government to adopt a resolution in favor of the strengthened provisions, and 3) write letters to the editor. Contact the Wetlands Campaign for information and resources to help you out. II. Chronological Summary of Actions and Results to Date August 30, 1998 was the deadline to comment on the Corp's Proposal to Replace Nationwide Permit 26. Action: Auduboners and wetlands advocates sent thousands of comment letters to the Corps and Vice President Gore urging stronger protection for wetlands. The scientific community and several associations submitted comments regarding their concerns that the proposal was not science based and would not protect wetlands. Result: The Corps received a record number of comments - over 10,000. The majority of comments were against the proposal and requested that it be strengthened. On October 14, the Corps released a "supplemental" proposal to the Nationwide "quick" permit proposal. Overall, the proposal continued to provide less protection for wetlands than the permit it was meant to replace - Nationwide Permit 26. However, the proposal did include three significant changes that were a step in the right direction. These included provisions that would: restrict the use of nationwide permits in 100 year floodplains; eliminate permit "B" which would let developers destroy up to 10 acres of wetlands in a "master planned development"; and limit the use of Nationwide Permits in certain types of state or federally designated high quality waters and impaired waters and associated wetlands (called "critical resources waters" in the supplemental proposal). November 30, 1998 was the deadline to comment on the Corp's Supplemental Proposal Action: Auduboners and wetlands advocates again commented on the proposal commending the Corp's for the three strengthening provisions (listed above) while also requesting that the proposal be further strengthened by removing numerous provisions that would have weakened wetlands protection. Result: The Corps received 900 comments but does not have a comment summary available. They will revise the proposal and make it available in Mid-March, as described above. III. Resources to Help You and Your Community or Coalition Participate The Wetlands Campaign will periodically post updates on both our wetlands listserve and website. For more detailed background information and assistance with regional contacts, call the Audubon Wetlands Campaign directly or send an email to the campaign's grassroots organizer: Beth Lapin 202-861-2242 or wetlands@audubon.org. Contact your state environmental agency to find out how to get involved in their 401 certification process where they will be deciding whether to adopt, condition, or deny nationwide permits in your state. Ask to be put on their mailing list to receive all notices regarding this process. If you are not sure who to call, see the list of state agencies at the end of this message. Call the Wetlands Campaign for assistance and sample comments. Consult your regional U.S. Fish and Wildlife staff, FEMA (Federal Emergency Management), your local government, or your local Corps of Engineers District office to begin gathering data about how the nationwide permits have impacted wetlands in your community. Having information about local impacts will come in handy for commenting on your state's certification decisions and the final proposal that the Corps will release in June. Check out the Corps website where regional conditions and the proposal are supposed to be posted once available. http://www.usace.army.mil/inet/functions/cw/cecwo/reg/

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Last Update: 3.28.00