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000690 April 7, 2000 Issue No. 1351 WESTERN STATES WATER RECEIVED APR 1 t 200/1 o recycled paper conserves water Cn'~-_ C::..-;s':,. "........ ...... THE WEEKLY NEWSLETTER OF THE WESTERN STATES WATER COUNCn... 942 East 7145 So. / Suite A-201 / Midvale Utah 84047 / (801) 561 5300 / FAX 255 9642 / g/ , - - www. westgov .or wswc Chairman - Francis Schwindt; Executive Director - Craig Bell; Editor - Tony Willardson; Subscriptions _ Julie Stam WA TER QUALlTYIWA TER RESOURCES Clean Water Act - Section 404/Corps of Engineers On March 28, the Senate Environment and Public Works Committee's Subcommittee on Wetlands held an oversight hearing on various aspects of the U.S. Army Corps of Engineers' Fiscal Year (FY) 2001 budget request Senator Jim Inhofe (R-OK) chaired the hearing. H.e first expressed his concern that the proposed budget did not adequately cover the increased costs related to . the new permitting workload required by the recent revision of the Corps nationwide permits (NWP) program. "They certainly have not requested enough funds to cover the additional individual permits." He noted the House Appropriations Committee directed the Corps last year to undertake a study of the workload related to NWP changes, adding, "I am dismayed that the new permit regulations were released before the workload study was completed and released," Committee Chairman Bob Smith. (R-NH) was also interested in the Corps'workload given the new rule, He said, "My interest is driven by the great ecological benefit wetlands play in the State of New Hampshire. We have a vast amount and wide variety of wetlands. These range from tidal marshes, mud flats, freshwater swamps, bogs and wet meadows. These wetlands serve an important role in filtering pollutants, providing wildlife habitat, and helping with flood controL... The new nationwide permit rule expands the federal permit- ting process for construction and development in wetlands and flood plains. There is disagreement about whether changes to the rule were needed, but I think all agree that the new rule will greatly increase the number of individual permit applications and thus increase the Corps workload." On March 9, the Corps published a final notice in the Federal Register issuing five new NWPs and modifying six existing NWPs to replace NWP 26, which will expire on June 7, 2000 (65 FR 12817-12899). The Corps is also modifying nine and adding two new NWP general conditions, The new conditions are intended to increase protection of "designated critical resource waters- and waters of the United States within 100-year floodplains. The Corps has been working since December 1996 to replace NWP 26, which authorizes discharges of dredged or fill material into headwaters and isolated wate~s. "!"he new and modified NWPs are activity- specific, WIth terms and conditions to minimize adverse effects on the aquatic environment. The maximum acreage limit for most of the new NWPs is one-half acre, and the Corps' district engineers must be notified on most activities that will result in the loss of more than one-tenth of an acre of wetlands, States and tribes have until June 7, to determine whether or not the new and modified NWPsare consistent v/ith their water quality standards and coastal zone management plans. . Michael Davis, Deputy Assistant Secretary of the Army for Civil Works, testified before the Subcommittee, H.e gave a short overview of the regulatory program, dIscussed high priority initiatives, including the NWP changes and establishment of an administrative appeals process, and concluded with an overview of the budget. He noted the Army's regulatory program costS have risen steadily over the last ten years with changes in law and policy to protect the environment. He called the Clean Water Act (CWA) Section 404 program -a vital part of the Nation's overall effort to protect, restore, and preserve our water resources," He added, "The overarching statutory goal of the Section 404 program is to protect the waters of the United States, including wetlands..... While the program helps stem the loss of wetlands and other aquatic resources, it does so in a manner that minimizes the unnecessary regulatory burdens on those that must apply for permits,... [P]ermit applicants receive a timely and professional response from the Corps." In FY 1999, the Corps' regulatory staff of about 1,100 authorized over 90,000 activities in writing (90% took less than 60 days). General permits are authorized for a category of activities with minimal individual or cumulative impacts