[Federal Register Volume 60, Number 56 (Thursday, March 23, 1995)]
[Notices]
[Pages 15440-15443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7206]




[[Page 15439]]

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Part VII





Department of Defense





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Corps of Engineers, Department of the Army



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Proposal to Issue a Nationwide Permit; Notice

  Federal Register / Vol. 60, No. 56 / Thursday, March 23, 1995 / 
Notices   
[[Page 15440]] 

DEPARTMENT OF DEFENSE

Department of the Army
Corps of Engineers


Proposal to Issue a Nationwide Permit

agency: U.S. Army Corps of Engineers, DoD.

action: Notice.

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summary: As a part of our effort to improve the regulatory program, the 
Army Corps of Engineers is proposing to issue a new nationwide general 
permit (NWP) under Section 404 of the Clean Water Act and Section 10 of 
the Rivers & Harbors Act for single-family residential development. The 
NWP will provide for effective protection of the aquatic environment 
while substantially reducing regulatory burdens on landowners.
    In August 1993, the Clinton Administration announced a 
comprehensive package of improvements to the Federal wetlands program 
that identified measures to enhance the fairness, flexibility, and 
effectiveness of the wetlands program. A major focus of the 
Administration's Wetland Plan is intended to address the concerns of 
landowners by streamlining Section 10 and 404 permitting programs where 
possible while maintaining needed environmental protection.
    The public is invited to provide comments on this proposal and is 
being given the opportunity to request a public hearing on the proposed 
NWP.

dates: Comments must be received by May 8, 1995.

addresses: Comments should be submitted in writing to: Office of the 
Chief of Engineers, ATTN: CECW-OR, 20 Massachusetts Avenue NW, 
Washington, DC 20314-1000. Comments will be available for examination 
at the Office of the Chief of Engineers, Room 6225, Pulaski Building, 
20 Massachusetts Avenue NW, Washington, DC 20314-1000.

for further information contact: Mr. Peter Kube or Mr. Sam Collinson, 
Regulatory Branch, Office of the Chief of Engineers at (202) 272-0817.

SUPPLEMENTARY INFORMATION:

Background

    The White House Office on Environmental Policy announced the 
President's Wetlands Plan on August 24, 1993. The plan set forth a 
comprehensive package of improvements to the Federal wetlands 
protection programs. A major goal of the plan is to ensure that 
programs are fair, flexible, and effective. To achieve this goal, the 
Corps regulatory program must continue to provide effective protection 
of wetlands while conveying to the public a clear understanding of 
regulatory requirements. In its implementation, the regulatory program 
must be administratively efficient, flexible yet predictable, and avoid 
unnecessary impacts to private property and the regulated public.
    We are proposing this new NWP to support the objectives in the 
President's Wetlands Plan. The new NWP would authorize activities in 
wetlands related to the construction or expansion of a single-family 
home. This would allow, for example, a couple to build a retirement 
home on wetlands property they own without applying for an individual 
Section 404 permit. The NWP includes limits and conditions to minimize 
impacts on the aquatic environment.
    There is a perception by many in the country that the regulatory 
process has become too burdensome on small landowners simply desiring 
to build a home. This nationwide general permit has been developed to 
reduce the regulatory burden on small landowners proposing to build or 
expand a single-family home while simultaneously maintaining 
environmental safeguards. It seeks to strike this balance by allowing a 
landowner to build or expand a home with minimal regulatory oversight 
while protecting the aquatic resource through specific limitations. If 
finalized, the new NWP will allow the Corps to focus better its 
resources on areas that have the potential for greater environmental 
impacts. Further, as the Corps realizes workload savings resulting from 
this NWP it should be able to improve service to other sectors of the 
regulated public (e.g., large developments).

Proposed NWP for Single Family Housing

    In order to address the above concerns, the Corps proposes to issue 
the following NWP.
    Discharges of dredged or fill material into non-tidal wetlands for 
the construction or expansion of a single-family home and attendant 
features, such as a garage, driveway, storage shed, and/or septic 
field, provided:
    a. The discharge into waters of the United States does not cause 
the loss of more than \1/2\ acre;
    b. The permittee notifies the District Engineer in accordance with 
the ``Notification'' general condition (as modified for this NWP only);
    c. The permittee has taken necessary actions to minimize the on-
site and off-site impacts of the discharge. For example, the location 
of the home may need to be adjusted on-site to avoid flooding of 
adjacent property owners;
    d. The discharge is part of a single and complete project and that 
for any subdivision created after March 6, 1995 the permittee notifies 
the District Engineer of any discharge which would cause the aggregate 
total loss of waters of the United States for the entire subdivision to 
exceed \1/2\ acre; and
    e. an individual may use this nationwide permit only once.
    For the purposes of this nationwide permit, the acreage of loss of 
waters of the United States includes the filled area plus any other 
waters of the United States that are adversely affected by flooding, 
excavation, or drainage as a result of the project. (Sections 10 & 404)
    The above NWP is being proposed under the authority of Section 
404(e) of the Clean Water Act (33 U.S.C. 1344) and Section 10 of the 
Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.).

Discussion

    We are requesting comments on the following specific issues:
    MAXIMUM ACREAGE: General permits are designed to authorize 
categories of activities in waters of the United States that will have 
minimal individual and cumulative impacts. This NWP would allow 
discharges affecting up to \1/2\ acre of non-tidal waters and wetlands 
for the construction or expansion of a single-family home and attendant 
features, such as the construction of a driveway, garage, and/or septic 
field. For purposes of this NWP, impacts include the filled area plus 
any wetlands adversely affected by flooding, excavation, or drainage. 
The actual loss of wetlands that would be authorized under the NWP 
would be limited to the minimum necessary for construction of the house 
and attendant features. (See discussion below on mitigation.) The NWP 
may not be used in combination with other general permits if the 
cumulative impacts from all activities are more than minimal.
    We believe that \1/2\ acre is sufficient for the vast majority of 
single-family homes. However, we are interested in receiving comments 
regarding the maximum acreage of impact to be allowed under this 
authorization. Should the maximum acreage be reduced to \1/8\ or \1/4\ 
acre or should the maximum acreage of impact be increased to \3/4\ or 1 
acre? The maximum acreage allowed under this NWP will be dependant on 
how the term ``attendant features'' is defined. We are interested in 
comments regarding a definition of [[Page 15441]] the term ``attendant 
features''. Should the authorization be limited to fill for foundations 
and building pads or should fill also be allowed for any attendant 
amenity as currently proposed, such as a yard, tennis courts, and/or 
swimming pool under this NWP?
    2. PRE-CONSTRUCTION NOTIFICATION: Individuals proposing to use the 
NWP will have to first notify the Corps in accordance with procedures 
of General Condition #13, Notification, as modified below. We propose 
to streamline the pre-construction notification (PCN) procedure by not 
requiring the Corps to coordinate with the Federal resource agencies, 
nor requiring the applicant to submit advance notice to the Fish & 
Wildlife Service or the State Historic Preservation Officer. 
Specifically, the Notification condition would be modified for this NWP 
as follows:
    13. Notification. (a) The prospective permittee must notify the 
District Engineer with a Pre-construction Notification (PCN) as early 
as possible and shall not begin the activity authorized by this NWP:
    (1) Until notified by the District Engineer that the activity may 
proceed under the NWP with any special conditions imposed by the 
District or Division Engineer; or
    (2) If notified by the District or Division Engineer that an 
individual permit is required; or
    (3) Unless 30 days have passed from the District Engineer's receipt 
of the notification and the prospective permittee has not received 
notice from the District or Division Engineer. Subsequently, the 
permittee's right to proceed under the NWP may be modified, suspended, 
or revoked only in accordance with the procedure set forth in 33 CFR 
330.5(d)(2).
    (b) The notification must be in writing and include the following 
information:
    (1) Name, address and telephone number of the prospective 
permittee;
    (2) Location of the proposed project;
    (3) Brief description of the proposed project; the project's 
purpose; direct and indirect adverse environmental effects the project 
would cause; any other NWP(s), regional general permit(s) or individual 
permit(s) used or intended to be used to authorize any part of the 
proposed project or any related activity.
    (c) The standard individual permit application form (Form ENG 4345) 
may be used as the notification but must clearly indicate that it is a 
PCN and must include all of the information required in (b) (1)-(3) of 
this General Condition.
    (d) In reviewing an activity under the notification procedure, the 
District Engineer will determine whether the activity will result in 
more than minimal individual or cumulative adverse environmental 
effects or will be contrary to the public interest. The District 
Engineer will consider any optional mitigation the applicant has 
included in the proposal in determining whether the net adverse 
environmental effects of the proposed work are minimal. If the District 
Engineer determines that the activity complies with the terms and 
conditions of the NWP and that the adverse effects are minimal, he will 
notify the permittee and include any agreed upon special conditions 
and/or mitigation. If the District Engineer determines that the adverse 
effects of the proposed work are more than minimal, then he will notify 
the applicant that the project does not qualify for authorization under 
the NWP and instruct the applicant on the procedures to seek 
authorization under an individual permit.
    (e) Wetlands Delineations: When necessary, wetland delineations 
must be prepared in accordance with the current method required by the 
Corps. The permittee may ask the Corps to delineate the wetland. 
However, there may be some delay if the Corps does the delineation and 
the 30-day period will not start until the wetland delineation has been 
completed.
    We are requesting comments on the PCN. Should the requirement for 
Corps and applicant coordination of project impacts with the resource 
agencies be retained? Is the PCN to the Corps needed in all cases? 
Should there be a size limit such as \1/10\, \1/8\, \1/4\ acre where no 
PCN is required?
    3. MITIGATION: No compensatory wetland mitigation is required under 
this authorization. However, the landowner must take reasonable on-site 
measures to minimize adverse impacts to aquatic resources. For example, 
the location of a home may need to be adjusted on-site to avoid 
flooding of adjacent property. Further, on-site minimization steps must 
be taken to minimize the loss of waters of the United States. For 
example, if a landowner currently owns 20 acres of land, 15 acres of 
which is non-wetland, we do not believe it is unreasonable to require 
the use of the non-wetland portion of the property where practicable.
    We are requesting comments on our proposal to require no 
compensatory mitigation for this NWP. Should we require mitigation for 
all wetland losses as a result of this permit or should we require it 
if the fill exceeds a certain acreage, such as \1/4\ acre? 
Alternatively, should compensatory mitigation only be required for 
certain attendant features such as the fill necessary for a yard?
    4. SUBDIVISIONS: In order to ensure that only minimal individual 
and cumulative impacts occur, this authorization is not intended to 
allow individual landowners to impact more than a total of \1/2\ acre 
of waters of the United States. Discharges authorized by this NWP must 
be part of a single and complete project and individuals may use this 
NWP only once for all property owned now and in the future. For any 
real estate subdivision legally created or subdivided before March 6, 
1995, the owner of each legally plated lot site may use this NWP. 
Should we allow individuals to use this nationwide permit more than 
once (e.g. twice, for a primary residence and a second home) or should 
its use by individuals not be limited.
    For any real estate subdivision created or subdivided after March 
6, 1995, discharges authorized under this NWP may not exceed an 
aggregate total loss of waters of the United States of \1/2\ acre for 
the entire subdivision. For purposes of this NWP, the term ``real 
estate subdivision'' shall be interpreted to include circumstances 
where a landowner or developer divides a tract of land into smaller 
parcels for the purpose of selling, conveying, transferring, leasing, 
or developing said parcels. This would include the entire area of a 
residential, commercial or other real estate subdivision, including all 
parcels and parts thereof.
    March 6, 1995 is being proposed because that is the date this NWP 
was announced to the public. Should the March 6, 1995 date be changed 
to be consistent with the NWP #26 subdivision clause of October 5, 
1984, or some other date? Also, are there other options, rather than 
the Subdivision provision, that would prevent developers from dividing 
and selling building sites, in the future, to circumvent the limits of 
this nationwide permit?

Nationwide Permit Conditions

    This proposed NWP will be subject to the conditions that apply to 
all nationwide permits. These conditions are found at 33 CFR Part 330 
Appendix A(C). As noted above, condition #13 has been modified for 
purposes of this NWP only.

Regional Conditions

    Concurrent with this Federal Register notice, District Engineers 
are issuing local public notices. In addition to the NWP conditions 
being proposed by the Chief of Engineers, the Division and District 
Engineers may propose regional [[Page 15442]] conditions or propose 
revocation of NWP authorization for all or portions of this NWP. 
Regional conditions may also be required by state Section 401 water 
quality certification or for state coastal zone consistency. Comments 
on the Federal Register notice that address national concerns relating 
to the proposed NWP and its conditions should be sent to the U.S. Army 
Corps of Engineers, CECW-OR, 20 Massachusetts Avenue N.W., Washington, 
D.C 20314-1000. Comments on regional issues and regional conditions 
should be sent to the appropriate District Engineer as indicated below.

ALABAMA
    Mobile District Engineer, ATTN: CESAM-OP-S, P.O. Box 2288, Mobile, 
AL 36628-0001
ALASKA
    Alaska District Engineer, ATTN: CENPA-CO-R, P.O. Box 898, 
Anchorage, AK 99506-0898
ARIZONA
    Los Angeles District Engineer, ATTN: CESPL-CO-R, P.O. Box 2711, Los 
Angeles, CA 90053-2325
ARKANSAS
    Little Rock District Engineer, ATTN: CESWL-CO-P, P.O. Box 867, 
Little Rock, AR 72203-0867
CALIFORNIA
    Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street, 
Sacramento, CA 95814-4794
COLORADO
    Albuquerque District Engineer, ATTN: CESWA-CO-R, P.O. Box 1580, 
Albuquerque, NM 87103-1580
CONNECTICUT
    New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road, 
Waltham, MA 02254-9149
DELAWARE
    Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker 
Building, 100 Penn Square, East Philadelphia, PA 19107-3390
FLORIDA
    Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970, 
Jacksonville, FL 32232-0019
GEORGIA
    Savannah District Engineer, ATTN: CESAS-OP-F, P.O. Box 889, 
Savannah, GA 31402-0889
HAWAII
    Honolulu District Engineer, ATTN: CEPOD-CO-O, Building 230, Fort 
Shafter, Honolulu, HI 96858-5440
IDAHO
    Walla Walla District Engineer, ATTN: CENPW-OP-RF, Building 602, 
City-County Airport, Walla Walla, WA 99362-9265
ILLINOIS
    Rock Island District Engineer, ATTN: CENCR-OD-S, Clock Tower 
Building, P.O. Box 2004, Rock Island, IL 61201-2004
INDIANA
    Louisville District Engineer, ATTN: CEORL-OR-F, P.O. Box 59, 
Louisville, KY 40201-0059
IOWA
    Rock Island District Engineer, ATTN: CENCR-OD-S, Clock Tower 
Building, Rock Island, IL 61201-2004
KANSAS
    Kansas City District Engineer, ATTN: CEMRK-OD-P, 700 Federal 
Building, 601 E. 12th Street, Kansas City, MO 64106-2896
KENTUCKY
    Louisville District Engineer, ATTN: CEORL-OR-F, P.O. Box 59, 
Louisville, KY 40201-0059
LOUISIANA
    New Orleans District Engineer, ATTN: CELMN-OD-S, P.O. Box 60267, 
New Orleans, LA 70160-0267
MAINE
    New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road, 
Waltham, MA 02254-9149
MARYLAND
    Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715
MASSACHUSETTS
    New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road, 
Waltham, MA 02254-9149
MICHIGAN
    Detroit District Engineer, ATTN: CENCE-CO-L, P.O. Box 1027, 
Detroit, MI 48231-1027
MINNESOTA
    St. Paul District Engineer, ATTN: CENCS-CO-R, 190 Fifth Street, 
East, St. Paul, MN 55101-1638
MISSISSIPPI
    Vicksburg District Engineer, ATTN: CELMV-CO-O, P.O. Box 80, 
Vicksburg, MS 39180-0080
MISSOURI
    Kansas City District Engineer, ATTN: CEMRK-OD-P, 700 Federal 
Building, 601 E. 12th Street, Kansas City, MO 64106-2896
MONTANA
    Omaha District Engineer, ATTN: CEMRO-OP-R, P.O. Box 5, Omaha, NE 
68101-0005
NEBRASKA
    Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street, 
Omaha, NE 68101-4978
NEVADA
    Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street, 
Sacramento, CA 95814-2922
NEW HAMPSHIRE
    New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road, 
Waltham, MA 02254-9149
NEW JERSEY
    Philadelphia District Engineer, ATTN: CENAP-OP-R, Wanamaker 
Building, 100 Penn Square East, Philadelphia, PA 19106-2991
NEW MEXICO
    Albuquerque District Engineer, ATTN: CESWA-CO-R, P.O. Box 1580, 
Albuquerque, NM 87103-1580
NEW YORK
    New York District Engineer, ATTN: CENAN-OP-R, Jacob K. Javits 
Federal Building, New York, NY 10278-0090
NORTH CAROLINA
    Wilmington District Engineer, ATTN: CESAW-CO-E, P.O. Box 1890, 
Wilmington, NC 28402-1890
NORTH DAKOTA
    Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street, 
Omaha, NE 68102-4978
OHIO
    Huntington District Engineer, ATTN: CEORH-OR-F, 502 8th Street, 
Huntington, WV 25701-2070
OKLAHOMA
    Tulsa District Engineer, ATTN: CESWT-OD-RF, 1645 South 101 East 
Avenue, Tulsa, OK 74128-4629
OREGON
    Portland District Engineer, ATTN: CENPP-PL-R, P.O. Box 2946, 
Portland, OR 97208-2946
PENNSYLVANIA
    Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715
RHODE ISLAND
    New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road, 
Waltham, MA 02254-9149
SOUTH CAROLINA
    Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919, 
Charleston, SC 29402-0919
SOUTH DAKOTA
    Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street, 
Omaha, NE 68102-4978
TENNESSEE
    Nashville District Engineer, ATTN: CEORN-OR-F, P.O. Box 1070, 
Nashville, TN 37202-1070
TEXAS
    Ft. Worth District Engineer, ATTN: CESWF-OD-O, P.O. Box 17300, Ft. 
Worth, TX 76102-0300
UTAH
    Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street, CA 
95814-4794
VERMONT
    New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo 
[[Page 15443]] Road, Waltham, MA 02254-9149
VIRGINIA
    Norfolk District Engineer, ATTN: CENAO-OP-P, 803 Front Street, 
Norfolk, VA 23510-1096
WASHINGTON
    Seattle District Engineer, ATTN: CENPS-OP-RG, P.O. Box 3755, 
Seattle, WA 98124-2255
WEST VIRGINIA
    Huntington District Engineer, ATTN: CEORH-OR-F, 502 8th Street, 
Huntington, WV 25701-2070
WISCONSIN
    St. Paul District Engineer, ATTN: CENCS-CO-R, 190 Fifth Street, 
East, St. Paul, MN 55101-1638
WYOMING
    Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street, 
NE 68102-4978
DISTRICT OF COLUMBIA
    Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715
PACIFIC TERRITORIES
    Honolulu District Engineer, ATTN: CEPOD-CO-O, Building 230, Fort 
Shafter, Honolulu, HI 96858-5440
PUERTO RICO AND VIRGIN ISLANDS
    Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970, 
Jacksonville, FL 32232-0019

State Certification of Nationwide Permits

    Section 401 of the Clean Water Act: This Federal Register notice of 
this NWP serves as the Corps application to the states or EPA, where 
appropriate, for 401 water quality certification of the activities 
authorized by this NWP. The states and EPA, where appropriate, are 
requested to issue, deny, or waive certification pursuant to 33 CFR 
330.4(c) for this NWP.
    Section 307 of the Coastal Zone Management Act: This Federal 
Register notice serves as the Corps determination that the activities 
authorized by this NWP are consistent with States' coastal zone 
management programs, where applicable. This determination is contingent 
upon the addition of State CZM conditions and/or regional conditions or 
the issuance by the state of an individual consistency concurrence, 
where necessary. The states are requested to agree or disagree with 
this consistency determination pursuant to 33 CFR 330.4(d) for this 
NWP.

Environmental Documentation

    We have made a preliminary determination that this action does not 
constitute a major Federal action significantly affecting the quality 
of the human environment. Preliminary environmental documentation has 
been prepared for the proposed nationwide permit. This documentation 
includes a preliminary environmental assessment and a preliminary 
Section 404(b)(1) Guidelines compliance review. Copies of these 
documents are available for inspection at the office of the Chief of 
Engineers and at each Corps District office. Based on these documents 
the Corps has provisionally determined that the proposed NWP complies 
with the requirements for issuance under general permit authority.

    Dated: March 15, 1995.
Stanley G. Genega,
Major General, USA, Director of Civil Works.
[FR Doc. 95-7206 Filed 3-21-95; 9:25 am]
BILLING CODE 3710-92-M