The new permits were published on March 9, 2000, initiating a 90 day period within which states must make their certification decisions. States can choose to place conditions on their certification of the permits overall, and can also choose to accept, revoke, or condition each of the 5 new and 6 revised permits. Most states will have at least a 30 day public comment period in which they will accept suggestions from the public on how they should handle their certification of the new permits. Contact information for your state agency is provided below this alert. A link to the new permits (as well as other information on the new permits) is posted on the Endangered Species and Wetlands Newsletter website at http://www.eswr.com/ish54.htm.

We strongly recommend revocation of certification for NWP 40 (Agricultural Activities) and NWP 44 (Mining Activities). We believe that both are unnecessary and would result in more than minimal impact in all regions of the country. More information on these permits is provided below.

The Corps new NWP package makes significant changes in agency coordination procedures -- greatly reducing the role of state agencies, the U.S. Fish and Wildlife Service, National Marine Fisheries Service, and the U.S. EPA in reviewing "pre-construction notifications" (PCNs). Under the new process, the Corps will not normally share PCNs with coordinating agencies. These agencies (including state agencies with 401 certification authority) will not be notified or given an opportunity to comment on projects allowed to proceed under Nationwide Permits (not just the new permits, but most of the existing permits as well).

The implications of this change in agency coordination are potentially serious for state agencies, which would no longer be able to review many of the projects approved under NWPs. Thus, they would not be able to determine if information provided in the PCNs (such as the extent, location or type of aquatic resource in question) is accurate and/or if the project might result in unacceptable impacts to the state’s aquatic resources. The agency would also lose the ability to track losses to their state’s aquatic systems, making it impossible for these agencies to determine if the NWPs are compatible with state Water Quality Standards.

While the Corps must allow states the opportunity to make 401 certification decisions regarding NWPs every five years (when the permits are re-issued or revised), it is unclear how they treat requests to revise 401 certifications at other times. In at least one instance, the Corps has refused to allow a state to modify their certification of NWPs at a later date (a request by the state of Ohio to modify their certification of NWP 26 resulted in lengthy delays, a Corp comment period and public hearing on the proposed revision, and eventual denial of the state’s request). This has significant implications for states that must make decisions on new NWPs with no data on their potential use and on their potential impacts to the aquatic environment. For example, if a state were to grant certification for NWP 40 and then find after a year that impacts under this permit were becoming excessive, under Corps interpretation of statute, the Corps District could deny the state’s request for revocation or modification of the certification.

While regional conditions imposed by the Corps District should be taken into account in the preparation of state certification conditions, it should be noted that Districts cannot place regional conditions on the use of NWP 40 for participants in USDA programs. Since NWP 40 could result in significant impacts, all regional conditions will need to be replicated as state certification conditions in order to protect aquatic habitats.

States should consider lowering acreage and linear foot limits for all permits that could result in more than minimal impact in their state. They should also consider adding linear foot limits on stream impacts to additional permits.

States should also consider lowering the pre-construction notification (PCN) thresholds below the current 1/10 acre and various linear foot limits for most projects and should require notification for impacts to ephemeral streams. Lower PCN thresholds will enable a record to be created of impacts under each permit. Notification should be required for all NWPs in watersheds where water quality is degraded by stormwater pollution and historic wetlands destruction.

States have a key role to play in halting the use of NWPs in high quality, irreplaceable, or otherwise important waters or watersheds of particular concern in their states. It is somewhat unclear what processes are to be followed by states in preparing their list of "critical resource waters" under General Condition 25. This may involve a decree by the state legislature or by the governor. It is clear that the Corps insists on holding a public comment period and public hearing on proposed critical resource water lists.

The advantage to state regulatory agencies of listing various types of waters and geographic areas under the CRW designation is that the Corps must respect this list and implement the national general condition by requiring an individual permit for projects in applicable waters. While states may (and should) also use their Section 401 certification to revoke the use of NWPs in these waters, the Corps will continue to approve projects under NWPs, even if an individual state water quality certification is required.

We recommend that states condition their 401 certification to prohibit the use of NWP 13 (bank stabilization) in Critical Resource Waters. We further recommend that states develop a comprehensive list of critical resource waters and that this list also be included in the state's general certification conditions. These lists should be developed in association with state and federal resource agencies, non-profit groups, and scientists.

Some recommendations for inclusion in this list are:

• groundwater recharge areas
• source waters for drinking water and watersheds of public water supply intakes
• primary nursery areas and shellfish waters
• essential fish habitat
• spawning areas used by other species besides those "harvested commercially for human consumption"
• waters of the U.S. supporting warm water fisheries or benthic macroinvertebrates
• streams that support cold water fisheries or anadromous fish species
• areas used by migratory birds
• watersheds flowing into wilderness areas, national parks, wildlife refuges, and state or locally-designated natural areas
• areas identified by state natural heritage programs as supporting high concentrations of rare species
• stream segments and waterbodies proposed for listing under section 303(d) of the Clean Water Act
• wetlands that are rare and difficult to replace such as peatlands, potholes, vernal pools, playas, kettles, high altitude wetlands, and mature forested wetlands
• watersheds targeted for restoration, flood prevention, or conservation efforts

In order to further prevent the un-reviewed destruction of wetlands important to floodwater storage, states should condition their certification to exclude the use of NWPs in all 100 year floodplains, not just those of streams with greater than 5 cubic feet per second flow. For areas where no FEMA maps exist, certification conditions should require applicants to obtain a determination from a registered hydrologist that their project is not within the 100 year floodplain. In addition, all projects impacting waters of the U.S. should be prohibited in 100 year floodplains, not just those resulting in "permanent, above-grade fills." States should require utility substations and utility access roads (under NWP 12) to be included under this condition.

States should develop case-specific special conditions for endangered or threatened species or

their critical habitat and require notice for all NWP activities in known locations of Federally-listed endangered or threatened species and their designated critical habitat.

As a general condition to their Section 401 certification, states should specify that wetland restoration is the preferred form of mitigation. They should also require detailed mitigation proposals to be submitted with PCNs. In order to ensure no-net-loss of wetlands acreage, states should specify as a condition of their certification that mitigation for wetland impacts should involve, at the very minimum, an acre-for-acre, in-kind replacement through restoration of wetlands. Only after this minimum acre for acre replacement is achieved should other types of mitigation, such as enhancement, buffers, and preservation of existing wetlands be allowed in order to accomplish additional mitigation requirements.

Western hydrologists have found that the climatic events that produce the typical hydromorphology of streams and insure their health are the 10-25 year events. These are the events that could be negated by use of this NWP. States, especially in the west, should limit Section (iii) (restoration of upland areas damaged by storm, flood, or other discrete events) to catastrophic events and only where the damage represents a serious threat to life and structures. The permit should be conditioned to specifically exclude bank stabilization related to construction or re-construction in FEMA designated floodplains, with the exception of vital public infrastructure, such as roads and bridges. This permit should not be allowed to be used for reclamation of land, such as agricultural land, that does not contain threatened structures.

Certification should be revoked for sections (ii) and (iv) "Substations," and (permanent) "Access Roads." Neither of these projects should have to be constructed in waters of the U.S. At the very least, these activities should be restricted in FEMA-designated floodplains. Flooding of substations could result in serious pollution problems.

A certification condition should be added which subjects public crossings to a 200 linear foot limit in all waters.

States should impose a certification condition requiring all restoration projects to be reviewed and approved in writing by the U.S. Fish and Wildlife Service, state natural resources agency, or the Natural Resource Conservation Service. In coordination with these agencies, all projects should be required to submit to strict, enforceable, ecological success criteria. Failed projects should be required to correct, or if not feasible, to mitigate for impacts to waters of the U.S. The certification conditions should also prohibit the continued removal of sediments from a restoration site, limiting such removal to the first two years. If sediment problems persist, enforcement against faulty construction should be taken.

States should also restrict the size of projects to 500 linear feet of stream or 2 acres of wetland. Mitigation should be required for all projects that result in a net loss of aquatic habitat, acreage or functioning. Certification conditions should prohibit the use of this NWP for impacts related to creation of mitigation banks.

The abuse of the term "restoration" is common and the types of abuse vary across the country. In some areas of the midwest "restoration" often involves deepening of wetlands to "improve" them. Frequently this is done for purposes of providing for swimming, fishing and duck hunting. In some areas, damning of streams to create waterfowl impoundments is popular, potentially leading to blockage of fish passage and innundation of seasonally-flooded or shallow-end wetlands. We recommend that states conditions this permit to prohibit abuses likely to occur regionally.

States should require a PCN, a detailed mitigation proposal, and a written alternatives analysis for each use of this permit. Certification conditions should note that a "single and complete project" includes all phases of a project which are initiated within five years of completion of the first phase of the project. States should condition this permit to specifically prohibit golf course impacts. States should note that grandfathering provisions written into this permit would allow much greater impacts to subdivisions in which a developer had made a substantial commitment prior to July, 2000 in reliance on NWP 26. This provision would allow for each lot to separately fill one-half acre, even if the total fill would exceed three acres (the limit of NWP 26). It appears that the Corps would allow for such fills even if the state in question had consistently denied certification for NWP 26. States should condition their certification to prohibit this grandfathering provision.

We strongly recommend the revocation of certification for this permit. Producers can already avail themselves of "minimal effects" and "minimal effects with mitigation" allowances in order to address aquatic resource impacts that are unavoidable.

If your state will not revoke this permit, they should at least consider limiting it to 1/2 acre per farm instead of per farm "tract" and restricting its use in FEMA floodplains. Since the floodplain restriction on NWPs applies only to "permanent, above-grade fills," agricultural drainage activities are permitted in floodplains. This could result in the drainage of many wetlands important to floodwater storage and increase runoff into streams, leading to increased downstream flooding. Since prairie potholes, playas, and vernal pools also provide valuable floodwater storage, states should condition NWP 40 to prohibit fills in these wetlands types.

Since the Corps has prohibited regional conditioning of this permit for farmers participating in USDA programs (the vast majority), states that refuse to revoke certification for this permit need to step in with their own certification conditions that duplicate, and hopefully improve upon those of their local Corps district. States should also be aware of the lack of substantive mitigation conditions applied to this permit. The permit allows NRCS to establish mitigation requirements for impacts by USDA program participants. NRCS has no standards for mitigation and has little experience with its implementation. States should specifically state their mitigation requirements as conditions on this permit.

The Corps feels that no notice or linear foot limitations are needed on this permit. However, since abuses are likely and streambanks can be denuded by this permit, states should require a PCN for all NWP 41 activities and put a cap of 250 linear foot on its use. In addition, certification conditions should require applicants to obtain a minimal effects agreement, a documentation of the area drained, and certification that best management practices have been employed from the Natural Resources Conservation Service or local Soil and Water Management District. This will help ensure that projects are truly designed to improve water quality.

States should condition their certification of NWP 42 to allow for only 1/3 acre or 100 linear foot of impacts. Activities eligible for inclusion should be restricted to linear-impact passive recreational facilities such as hiking and biking trails whose re-design to avoid aquatic habitats would be overly difficult. The permit should be allowed only once per property. We strongly recommend conditioning this permit to prohibit its use for structures, attendant features, golf courses or ski resorts.

States should revoke or severely restrict the use of this permit for construction of new stormwater management facilities in waters of the United States. At a minimum, the use of NWP 43 in high quality waters (including intermittent or ephemeral streams), should be prohibited.

We strongly recommend that state revoke certification for this NWP. At a bare minimum, states should condition this permit to limit impacts to 250 linear feet, prohibit its use in high quality waters and require a PCN for all impacts.