PO Box 1070, Frankfort, KY 40602 Phone 502.875.2428, Fax 502.875.2845
KRC Joins 64 Other Conservation Organizations In Joint Comments Opposing Reissuance Of Nationwide Fill Permits Posted: May 2, 2011
April 18, 2011
By email and submission through www.regulations.gov on April 18, 2011; hard copy to follow by U.S. Mail (with attachments)
U.S. Army Corps of Engineers
441 G Street, N.W.
Washington, DC 20314-1000
RE: Docket # COE-2010-0035; ZRIN 0710-ZA05
Dear Mr. Olson:
The following comments are submitted for the record on behalf of the 65 undersigned organizations. Please recognize these comments in the record as the comments of 65 organizations representing over 5 million members and supporters from around the country.
As described in detail below, the nationwide permits (NWPs) that the Army Corps of Engineers (Corps) proposes to re-issue, expand, and promulgate are unlawful and unwise. See 76 Fed. Reg. 9174 (February 16, 2011). They must either be withdrawn or substantially modified if they are to comply with the Clean Water Act.
As these comments demonstrate, the proposed NWPs are flawed in multiple ways.
First, the permits do not give sufficient consideration to – and contrary to the requirements of Clean Water Act § 404(e) do not protect – the vitally important functions served by the nation’s wetlands and streams. The permits also do not take into account the increasingly important role that the nation’s wetland and streams will serve as fewer and fewer of these aquatic resources remain. More and more land is developed, which is generating more pollution and destroying the hydrology of the Nation’s water resources, and with it the quality of life that we have come to rely on. A recent study found that nearly 90 percent of assessed streamflows had been altered, that these alterations contributed to degraded river ecosystems and loss of native species, and that the likelihood of biological impairment doubled with increasing severity of diminished streamflows. Among other concerns, this makes flooding and other extreme events more possible – a real concern, particularly as global warming worsens.
Second, the Corps’ proposal routinely flouts its legal obligation to limit general permits to activities that will not cause more than minimal adverse impact individually and cumulatively. The majority of the permits allow unlimited impacts to wetlands and streams, while numerous others allow waivers of impact limitations at the discretion of the District Engineer.
Third, in most instances, the Corps lacks data about the likely impacts or the data show that the impacts are in fact not minimal. Indeed, the Corps has provided little, if any, scientific data or analysis to support its claims that these NWPs have no more than a minimal adverse effect, individually or cumulatively, on the environment. The Corps has not properly evaluated the impacts of climate change in its analysis. The decision documents that accompany the proposed NWP proposal are replete with repeated and rote statements that are not supported by any studies, reports, or data – and that often fly in the face of facts about the adverse environmental consequences of the NWP program that the Corps has been aware of for years.
Fourth, NWPs may not be used to cover activities that are not similar in nature, but a significant number of proposed permits fail to meet this criterion.
Fifth, although applicable requirements demand that impacts to waters of the United States be avoided and minimized before being allowed, the NWPs do not preserve this sequencing requirement, and they are not conditioned to ensure that all practicable steps will be taken to avoid adverse impacts to the environment.
Sixth, the General Conditions proposed by the Corps do not ensure that the permitted activities will cause only minimal impacts, individually and cumulatively, as required by law. The mitigation and pre-construction notification general conditions also authorize, and promote, the use of mitigation buy-downs in an attempt to reduce impacts to minimal levels. The use of such buy-downs violates the Clean Water Act general permitting requirements and, as a matter of fact, will not ensure that impacts are no more than minimal.
Finally, a number of proposed permits contain unreasonable provisions that must be corrected.
Our organizations stand ready to work with the Corps to fix this mistaken approach to permitting activities that may affect waters of the United States. Please feel free to contact Jan Goldman-Carter at 202-797-6894 or any of the undersigned with regard to these comments.