[Federal Register Volume 60, Number 144 (Thursday, July 27, 1995)]
[Notices]
[Pages 38650-38663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18455]
[[Page 38649]]
_______________________________________________________________________
Part V
Department of Defense
_______________________________________________________________________
Corps of Engineers, Department of the Army
_______________________________________________________________________
Issuance of Nationwide Permit for Single-Family Housing; Notice
Federal Register / Vol. 60, No. 144 / Thursday, July 27, 1995 /
Notices
[[Page 38650]]
DEPARTMENT OF DEFENSE
Corps of Engineers, Department of the Army
Issuance of Nationwide Permit for Single-Family Housing
AGENCY: 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 hereby issuing a new nationwide general
permit (NWP) under section 404 of the Clean Water Act and section 10 of
the Rivers and Harbors Act for single-family residential housing
activities. As announced by the President on July 12, 1995, 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 Wetlands Plan is intended to address the concerns of
landowners by streamlining the Section 10 and Section 404 permitting
programs, where possible, while maintaining needed environmental
protection.
EFFECTIVE DATE: September 25, 1995.
ADDRESS: Information can be obtained by writing to: The Chief of
Engineers, U.S. Army Corps of Engineers, ATTN: CECW-OR, Washington, C
20314-1000.
FOR FURTHER INFORMATION, CONTACT:
Ms. Kelly Enright or Mr. Sam Collinson at (202) 761-0199.
SUPPLEMENTARY INFORMATION: On August 24, 1993, the White House Office
on Environmental Policy announced the President's Wetlands Plan (Plan).
The 40-point 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 issuing this new NWP to support the objectives in the
President's Wetlands Plan. The new NWP will 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 NWP 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. This
NWP 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. The new NWP will allow
the Corps to focus better its resources on areas that have the
potential for greater environmental impacts. Furthermore, as the Corps
realizes workload savings resulting from this NWP, service to other
sectors of the regulated public (e.g., large developments), should be
improved.
On March 23, 1995, the Corps published its proposed single-family
housing NWP in the Federal Register. We received approximately 450
comments responding to the proposed NWP. In response to these comments,
we made a few revisions to the NWP as discussed below. Issuance of this
NWP should result in continued protection of the aquatic environment,
reduced regulatory burden on the small landowner and an overall
decrease in workload. Any workload savings will be devoted to more
efficient individual permit evaluations and increased enforcement and
compliance activities.
This nationwide permit for single-family housing activities issued
today becomes effective on September 25, 1995. During this 60-day
period, the States must make their final determination on issuance of
State Section 401 water quality certification or, where appropriate,
whether they agree with our CZM consistency determination. The NWP will
remain in effect for 5 years from the effective date unless sooner
revoked, modified, or reissued.
Discussion of Public Comments and Changes
We requested comments on the following specific issues:
1. Maximum Acreage
This topic received a large number of comments; specifically,
commenters suggested increasing, decreasing, or retaining the proposed
acreage figure. Several commenters supported the 0.5 acre limit. They
stated that such an acreage figure was appropriate, reasonable and
sufficient for a single-family residence with attendant features.
Several commenters were in favor of an increased acreage threshold.
Some stated that the acreage figure should be increased to 10 acres to
remain consistent with that of the NWP 26. One commenter suggested a 5-
acre limit to correspond with the Department of the Interior's proposal
to lessen Endangered Species Act restrictions on individuals owning 5
acres or less. The majority of those who encouraged a higher acreage
amount, recommended a 1-acre threshold. One of these commenters equated
this figure to the 1-acre threshold of the NWP 26 below which the Corps
does not require notification. One commenter expressed concern over the
proportionality of impacts versus the overall size of the parcel of
land to be impacted. This commenter recommended increasing the maximum
acreage threshold so that a more proportional impact to wetlands could
be allowed. For example, if a landowner owns a 10-acre parcel, he
should be authorized to fill 5 acres of wetlands and one who owns a 1-
acre parcel should be allowed to fill 0.5 acre of wetlands. The
commenter did not offer a specific ratio or threshold. Another
commenter recommended that wetlands of lower value should have a higher
acreage threshold while higher quality wetlands should be allowed more
minor impacts. Again, this commenter did not offer specific thresholds.
The majority of the comments on the acreage limit were in favor of
a lesser acreage. Many commenters maintained that the acreage proposed
was excessive and a lesser acreage would encourage prospective
permittees to avoid and minimize impacts. Several commenters compared
the acreage threshold to that allowed in their respective states for
single-family housing activities. Those states had a lower acreage
threshold. Many commenters suggested that the NWP should only apply to
individuals who had some usable uplands on their property. By using
some uplands the property owner would need less fill in wetlands to
have a homesite, and therefore a lower acreage limit could be
established. These commenters indicated that the NWP should not apply
to those who own only wetlands
[[Page 38651]]
since they would need to fill more to achieve their project purpose.
One commenter stated that there should be a distinction made between
residential expansion and completely new construction. That commenter
suggested that an individual developing a new lot should be afforded a
greater authorization than one expanding a developed lot, but that both
acreages should be less than 0.5 acre.
A few commenters questioned the logic used in the selection of the
0.5 acre threshold. Several commenters suggested that the NWP should
apply only to lots of a certain size but greater than 0.5 acre (e.g.,
the NWP should apply only to parcels that are greater than 5 acres).
Review of statistical data from the U.S. Department of Commerce and
the U.S. Department of Housing and Urban Development reveals that
approximately 90% of residential landowners in the United States own
parcels that are 0.5 acre in size or less. This includes all
residential land; wetlands comprise a very small subset of these lands.
From this data we conclude that construction on 0.5 acre of land is
consistent with what the public believes to be adequate for single-
family housing activities. Furthermore, this data demonstrates that
this 0.5 acre threshold would satisfy the vast majority of the public's
need for a homesite. Additionally, approximately 60% of landowners own
parcels that are less than 0.25 acre in size. Adopting this lower
acreage threshold may eliminate a large portion of the public who could
benefit from this NWP. However, we anticipate that most landowners,
regardless of the size of their property, will require impacts less
than 0.25 acre for their single-family housing activities.
We believe that relating the size of the impact to the upland
acreage would add unnecessary confusion to the applicability of the NWP
without additional, commensurate aquatic resource protection. We are
concerned with the impacts to the aquatic environment and are therefore
measuring those impacts. When we review the Pre-Construction
Notification (PCN), we will consider the availability of uplands at the
site and cumulative impacts. Therefore, we are not establishing a
limitation on the size of the parcel for which this NWP is applicable.
With regard to State acreage thresholds, a Corps permit does not
obviate the need for a State permit. Therefore, a permittee can only
impact the lowest acreage threshold allowed by either the State or the
Corps. Additionally, the Corps will encourage its district offices to
adopt the State's equivalent authorization, where appropriate, and
regionally condition this NWP to adhere to that threshold. The Corps is
issuing the NWP with the 0.5 acre threshold for the single-family
housing NWP. In an effort to simplify this permitting process, the
Corps will allow no more than 0.5 acre of impact for non-tidal
wetlands. There will be no automatic exclusions based on wetland value.
However, the Corps will determine on a case-by-case basis, if a
specific area should be exempted from this NWP based on functions or
values. Upon review of the comments, statistical data, a survey of
Corps district offices to determine need for the permit, and our
experience and judgement concerning the potential for adverse effects
on the environment associated with the various acreage limits, we
concluded that the 0.5 acre threshold was appropriate. The 0.5 acre
limit strikes a balance that will reduce unnecessary regulatory burdens
on most residential landowners while providing for individual permit
review of those single-family housing activities with the potential for
more than minimal impacts on the aquatic environment. While the NWP
provides for up to 0.5 acre of impacts to wetlands, we believe that
compliance with the permit requirement to avoid and minimize on-site
impacts will result in most homesites affecting less than 0.25 acre.
The PCN will provide for Corps district offices to ensure compliance
with this requirement as well as to review cumulative impacts. Finally,
we will monitor this NWP and will revoke or modify the NWP, if
necessary, to further reduce unacceptable impacts to the aquatic
environment.
One commenter questioned how the Corps could ever justify denying
proposals for impacts due to larger developments when this NWP will
authorize equivalent impacts for several individual homesites in a
given area.
The Corps does issue and will continue to issue individual permits
for large developments. These often involve mitigation for impacts. The
Corps also denies and will continue to deny permits for large
developments, when appropriate. This NWP will not affect those
decisions. When reviewing the PCN for a single-family housing activity,
the Corps will consider cumulative impacts of the proposed homesite
with other potential homesites. In some cases, the Corps Division
Engineers may exercise their discretionary authority which will result,
in a given area, in the requirement for individual permits and/or for
mitigation for the individual homesites to address cumulative impacts.
Therefore, we expect that similar considerations and requirements would
be imposed for both large developments and for many individual
homesites in a given area. Furthermore, this NWP does not apply to
individual parcels subdivided on or after November 22, 1991, where the
aggregate total of impacts exceeds 0.5 acre.
2. Pre-Construction Notification:
The comments on the Pre-Construction Notification (PCN) requirement
for this NWP addressed a wide range of issues including, the need for
the pre-construction notification, the criteria for when a PCN should
be required, the 30-day timeframe, the need for agency coordination,
and the wetland delineation requirements. The majority of the
commenters supported the requirement for a PCN in some form, while a
few commenters opposed a PCN entirely or in certain circumstances.
Several commenters recommended that PCNs should be required in all
cases. Reasons given include: to maintain consistency, to avoid
potential violations, to assist applicants in avoiding impacts on their
property, to allow the Corps to ensure that the permittee has minimized
to the greatest extent practicable, and to aid in evaluating cumulative
impacts. Several commenters indicated the PCN should only be required
in certain situations. One commenter suggested that any discharge
occurring after March 6, 1995, should require a PCN but that activities
occurring prior to this date should not. Some commenters suggested
flexibility when the area of effect is a lesser acreage; specifically,
sizes of 0.1 and 0.25 acre were referenced as dimensions warranting no
notification. Another commenter suggested that the Corps require a PCN
for all projects, regardless of size, for the first 3 years after
implementation of this NWP; afterwards, adopt a size limit regarding
PCNs, if practicable. Several commenters recommended that the
notification process be eliminated completely. One commenter stated
that the PCN procedure was cumbersome and undermines the intent of the
general permit program. Some other reasons given include reducing the
regulatory workload, reducing the required recordkeeping, reducing
agency spending, avoiding delay and expense to the landowner, and
serving as an incentive for landowners to reduce the area of impact.
One commenter suggested that the PCN would result in subjective
treatment of the regulated public. A few commenters stated that no
notification would be consistent with the notification procedures
governing the existing NWPs. One commenter
[[Page 38652]]
recommended adopting existing PCN requirements rather than a modified
PCN only for this NWP, to avoid confusion by both the regulated public
and the resource and regulatory agencies.
We continue to believe that the PCN process is necessary for the
Corps to examine projects on a case-by-case basis to determine
compliance with the single-family housing NWP and to ensure that the
impacts are minimal. Furthermore, the PCN will maintain nationwide
consistency and continue to provide adequate environmental protection.
At this time we are requiring the PCN for all activities qualifying for
this NWP. However, we will monitor the NWP use and, if appropriate,
will propose, at a later date, any necessary thresholds below which the
PCN would not be required. Although having two notification procedures
may seem confusing, the PCN process for this NWP is simpler than the
existing PCN and will result in less burdens on the applicant. We
believe that the PCN process for this NWP should be different from the
existing PCN for the reasons discussed below.
A few commenters addressed the 30-day timeframe. Specific concerns
were that Corps personnel may not be able to adhere to this limiting
factor, thus, verifying projects that would not otherwise qualify for
authorization under this NWP; the 30-day timeframe will discourage
case-by-case review and site visits to independently monitor impacts;
and the Corps will have to verify authorization prior to State water
quality and CZMA certification being issued or denied. One
recommendation was that the Corps should detail how the PCN process
will be undertaken to ensure that only a minimum number of projects
exceed the 30-day limit. A few commenters stated that the 30-day
timeframe was inadequate and should be extended; one suggested a 90-day
timeframe. One commenter questioned whether the District Engineer will
send notification to the permittee as to the date that notification was
received. Another commenter suggested that the permittee should be able
to rely on the 30-day timeframe for the Corps to raise issues and that
the District Engineer should not be able to intervene after that point.
The Corps believes that the 30-day timeframe is sufficient, based
on the nature of these activities and the information required to be
submitted by the permittee, to review and determine if an activity
qualifies for this NWP. Currently, the Corps reviews approximately
40,000 general permit activities and reaches a decision in an average
of 16 days. State 401 water quality certification and CZMA consistency
determinations will not be affected by the 30-day timeframe. Permittees
may proceed under the NWP upon verification by the Corps, if the State
issues 401 certification or 401 certification conditions for the NWP.
However, if the State denies 401 certification for the NWP, the Corps
will verify the activity within the 30-day timeframe, subject to the
permittee individually obtaining 401 certification from the State.
Until then, authorization for the activity is denied without prejudice.
(This also applies to CZMA consistency determinations.) Therefore,
during the 30-day timeframe the Corps will only verify that
authorization under the NWP will be valid if the permittee dose
successfully obtain State water quality certification or waiver thereof
and/or CZMA concurrence or presumed concurrence, where applicable. Some
Corps districts may have some mechanism in place whereby permittees are
informed that their notification has been received. However, there is
no requirement that the districts send such notification. Permittees
may use certified mail to document receipt of their notice by the Corps
district office. The Corps expects to evaluate all activities under
this NWP, on a case-by-case basis. However, we do not believe that
minor activities will require on-site inspections in every situation.
If, subsequent to verification, the Corps discovers that false
information has been furnished, then appropriate action will be taken.
Finally, if the Corps does not respond within the 30-day timeframe,
then the permittee may proceed with the project.
Many commenters expressed their views concerning the proposal to
not notify the Federal and State resource agencies as part of the
notification procedures. Several commenters disagreed that notifying
the resource agencies would result in significant increases in permit
processing time. Many stated that review of the public notice was
insufficient consultation and that notification with the agencies
should be retained. However, the issue of greatest concern was the
belief that the Corps' would be in violation of Section 404(q) of the
Clean Water Act, the Fish and Wildlife Coordination Act, the Endangered
Species Act, associated Memoranda of Agreement, and the National
Historic Preservation Act. Many commenters stated that the modified PCN
process provided inadequate evaluation of fish and wildlife impacts,
impacts to threatened and endangered species, and all potential adverse
impacts in general. One commenter stated that the Corps lacks the
expertise to protect fish and wildlife resources as its primary
responsibility and, therefore, coordination with resource agencies
should be required. One commenter recommended that coordination should
be maintained if the activity is within close proximity to an
``endangered species area.'' A few commenters suggested establishing a
process by which the USFWS and a representative State agency
coordinates review of activities which could potentially impact
Federally threatened or endangered species. A few commenters questioned
how the Corps intends to implement the NWP general conditions that
prohibit jeopardizing endangered species and impacting historic
resources. Also offered were recommendations that the Corps should
notify agencies who issue building permits about proposed projects and
the Corps should notify the NRCS of any agricultural projects. One
commenter posed several questions in an effort to justify the need for
notification with the resource agencies. Specifically, the commenter
asked if the Corps had examined statistics on the number of homes to be
built under this NWP, amount of ground disturbance, and amount of
impacts to known archaeological sites. Another commenter recommended
that a review for the presence of archaeological resources be conducted
prior to commencement of the activity. One commenter stated that not
requiring a PCN will reduce the accuracy of USFWS' records of wetland
losses for its national status and trends report. One commenter stated
that the NWP limits the States' involvement in reviewing proposed
activities that may affect State resources. Other commenters stated
that the public should have the opportunity to comment on projects in
areas under developmental pressure; the public should have the
opportunity to comment on all projects (e.g., rescind all NWPs); PCNs
should include notification to all adjacent property owners within 500
feet of the project site; and the Corps should not only require
resource agency coordination but also include a provision that allows
any Federal resource agency the authority to require an individual
permit.
The purpose of NWPs is to authorize activities having minimal
impacts, with little or no review, in a timely manner. Based on our
experience, third party involvement adds little to the review process,
but decreases the efficiency of
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Corps staff who could be focusing their resources on areas that have
the potential for greater environmental impacts. Due to reduced agency
resources, resource agency comments frequently merely cite regulations
or policies governing alternatives analysis and/or mitigation policy
and do not provide site-specific comments. Furthermore, we believe that
the interdisciplinary Corps regulatory staff is extremely knowledgeable
of resource values and fully capable of evaluating impacts resulting
from NWP activities. Over 70% (700) of the Corps regulatory personnel,
nationwide, are natural resource scientists, many with advanced
degrees. Regarding endangered species and historic properties, 33 CFR
330.4(f) and (g) outline the procedures regarding adverse impacts to
threatened or endangered species or critical habitat, and impacts to
historic properties. The permittee must follow these standard
conditions in order to be in compliance with the NWP; failure to adhere
to these conditions results in a violation of the permit on the
permittee's part. It has been our experience that requiring
notification to the resource agencies places an additional burden on
the applicant and the regulator, with very little benefit. We do not
believe that this NWP will reduce the USFWS' ability to monitor losses
of the nation's wetlands. Further, other mechanisms can be implemented
to assist the USFWS with the task of tracking cumulative impacts. The
States may impose conditions on the NWP or review each project with
regard to water quality certification and coastal zone management
consistency, where applicable. The Corps disagrees that case-by-case
notification with the resource agencies is necessary for these minor
activities. However, it is the Corps' belief that notification to the
Corps is necessary to ensure that impacts are minimal.
A few commenters stated that the Corps should outline under what
circumstances a wetland jurisdictional delineation will be necessary.
It was also recommended that we require a wetland delineation to ensure
that the proposed project impacts comply with the acreage threshold.
One commenter questioned the requirement for the permittee to identify
the project's direct and indirect adverse environmental effects,
likening this condition to an environmental impact statement (EIS) such
as those required for large scale projects. Additional comments
received regarding PCNs include: PCNs should contain evidence of
avoidance and minimization on the part of the applicant; permittees
should complete a standard individual permit application form for all
projects; PCNs should include scaled site plans with existing and
proposed development, slopes and elevation; PCNs should include a legal
description of the project site and a certified statement as to whether
the parcel is part of a real estate subdivision; and a copy of the PCN
should be sent to the clerk or secretary of the appropriate local
municipality.
For the purpose of clarification, a formal wetland delineation is a
routine or comprehensive delineation as described in the Corps' 1987
wetland delineation manual. We have determined that if the entire
parcel owned by the NWP applicant is 0.5 acre or less in size, no
formal on-site wetland delineation will be required. Therefore, such
individuals will not be required to hire a consultant to perform a
detailed field investigation for the purpose of determining Federal
jurisdiction. A general indication of the amount and/or location of the
wetlands would be sufficient. Permittees who own parcels greater than
0.5 acre must have a formal wetland delineation prepared in accordance
with the current method required by the Corps. Conditions will be
incorporated stating this and allowing applicants to request that the
Corps perform the delineation with the understanding that such requests
may cause some delay in the permitting process. Approximately 90% of
the landowners in the United States own less than 0.5 acre of land;
therefore, this condition should not prove to be a burden on most
applicants. We disagree that the permittee's responsibility to identify
adverse environmental effects is in anyway similar to preparing an EIS.
The Corps only requires a clear and concise statement regarding the
proposed project's direct and indirect adverse environmental effects;
such a requirement can be undertaken by the permittee or done in
consultation with Corps staff. We do not expect a study or detailed
analysis of such impacts. We disagree that the aforementioned proposals
should be required in all cases. These options are certainly available
to each applicant and in some cases may expedite the permitting
process, but will not be required. This NWP is a general permit; as
such, it authorizes activities with minimal environmental effects and
requires minimal effort on the part of the applicant. The Corps will
require that applicants avoid and minimize impacts wherever practicable
on-site.
3. Mitigation
Numerous comments were received regarding mitigation. Many of these
comments concerned compensatory mitigation and include: mitigation
should be in-kind and on-site except in extreme cases of hardship;
permittees should mitigate for the lost acreage, functions, and values;
the Corps should justify mitigation based on the wetland loss and not
the applicant type (small landowner); compensatory mitigation should be
required for impacts to high quality systems and for impacts resulting
from construction of attendant features; and compensatory mitigation
should be required for impacts exceeding 0.1 acre. Several commenters
recommended mitigation ratios ranging from 1:1 to 10:1, compensatory
mitigation to impacts. One commenter recommended that mitigation
requirements should be established at the Corps district level based on
local resource needs and should be made in consultation with other
resources agencies. One commenter recommended that all remaining
wetlands on a parcel in which this NWP is used should be placed into a
deed restriction.
Many suggestions were made to utilize mitigation banking. Some of
the justifications presented were because it has been successful in
creating sizeable wetland resources, is affordable, can assist in
maintaining a no net loss policy, can aid in avoiding the problems with
compensatory mitigation for small impacts, and would give permittees
predictability with regard to mitigation costs. Some stated that the
mitigation bank should be utilized on a sub-watershed basis. Some have
recommended only allowing application of the NWP in watersheds where
mitigation banks have been legally established. A few suggestions were
offered to have permittees make donations to a recognized wetland
conservation project.
The no net loss of wetlands policy was a recurring theme in
comments regarding mitigation requirements for this NWP, as well as a
long-term goal of increasing the quality and quantity of wetlands.
Some commenters recommended that no mitigation be required. Some of
the reasons presented include: the requirement is too burdensome on
individual property owners; no significant loss of wetlands will result
from this NWP, mitigation is too costly for the Corps to track;
mitigation limits the landowner's ability to construct a home in the
most desirable location; mitigation is too costly for the landowner;
and the creation of non-tidal wetlands is difficult and results in
questionable success. Many believe that compensatory mitigation should
not be required if avoidance and minimization
[[Page 38654]]
are undertaken on-site. One commenter stated that compensatory
mitigation should not be used in lieu of avoidance and minimization.
One commenter offered that NWPs are supposed to apply only to actions
having minimal individual and cumulative effects and the Corps'
consideration of mitigation suggests that the Corps does not believe
the activity covered by this NWP is minor.
If cumulative impacts become more than minimal or a wetland system
proposed to be impacted through the use of this NWP is of such high
quality or importance, in terms of functions, that compensation is
warranted, the District Engineer will so notify the applicant, who may
offer compensatory mitigation to offset the adverse environmental
effects. However, a standard ratio to establish the amount of
compensation required per amount of impact will not be established in
this NWP. The decision regarding the quantity of mitigation that is
required will be made by the District Engineer on a case-by-case basis,
if mitigation is determined to be necessary. The District Engineer also
has the authority to require an individual permit in which the need for
mitigation would be more closely examined. The Corps Division Engineers
have the authority to regionally condition the single-family housing
NWP to exclude certain geographical areas, where applicable. The Corps
does not believe that placing a deed restriction provision on all small
landowners is necessary, warranted or follows the intent of this NWP. A
permit would be necessary for activities in the remaining wetlands, and
we would address any adverse effects for such a permit. Furthermore, we
do not believe it is appropriate to require mitigation beyond the
adverse impacts that are being caused by the permittee.
The Corps agrees that mitigation banks, wetland trusts, and other
conservation projects offer a solid means for compensating for lost
wetland functions and values. However, we do not believe that such
compensation is warranted for every impact covered by this NWP, nor is
it a practicable option for every district, since many areas do not
have mitigation banks or other conservation projects established. These
options will be considered and encouraged where cumulative impacts are
a concern.
The Administration's policy of no net loss of wetlands is a
national goal that calls for no net loss overall, not on a case-by-case
basis. This policy also recognizes that the Corps Regulatory Program
will support but not meet this goal in every permit case and provides
for other programs to help meet the goal. Thus, compensation associated
with standard and general permits is not the only means by which the
nation attains the goal of no net loss of wetlands. Some other examples
of means by which a no net loss of wetlands goal is achieved include
State comprehensive watershed management plans, State and local
programs that require compensation for residential development, and the
Wetland Reserves Program.
This NWP is not a guarantee that every landowner who owns 0.5 acre
of wetlands will be authorized to impact the entire parcel. One of the
specific conditions of this NWP is that the permittee takes necessary
actions to minimize on-site and off-site impacts of the discharge. Such
evidence will be provided and evaluated in the notification procedure.
Compensatory mitigation will generally not be accepted in lieu of on-
site avoidance and minimization. Although the Corps agrees that
compensatory mitigation is not warranted for every single-family
housing activity authorized by this NWP, we do regard on-site avoidance
and minimization as necessary steps in all cases to ensure that there
are only minimal environmental effects.
Several commenters questioned how the Corps intends to ensure that
permittees will minimize impacts. One commenter stated that the
existing NWPs have proven that general permits do not include even a
minimum level of review. A few commenters stated that this NWP would
eliminate the requirement for landowners to avoid and minimize impacts.
One commenter recommended that the District Engineer should be able to
condition the NWP to require further minimization of impacts.
Many stated that the NWP should not be utilized where alternatives
exist. One commenter questioned whether the Corps would require an
alternatives review to determine if the permittee owns a non-wetland
parcel. Another stated that it appears that the Corps considers single-
family housing activities to have no alternative. One commenter stated
that individual permits are now more flexible than this NWP, given the
recent flexibility guidance. A few commenters suggested that the
failure to require compensatory mitigation for this NWP would be
contrary to the sequencing requirements outlined in the 404 (b)(1)
Guidelines and the MOA between the EPA and the Corps. Another disagreed
and stated that sequencing requirements do not apply to any other
general permit and questioned why it should apply to this NWP.
The issue of water dependency was raised by a few commenters. These
commenters specifically stated that existing regulations require a
project to be water dependent to qualify for a Section 404 permit and
that this NWP could remove the water dependency standard for all 404
permitting.
One commenter stated that, with regard to on-site adjustment of the
home to avoid flooding of adjacent property owners, the Corps implied
that a wetland can be altered as long as no harm is caused to another
man-made structure. Another commenter asked if this NWP allowed the
partial filling of a lake to construct a home, if one owned property
adjacent to a lake.
The modified notification condition will require that the permittee
notify the Corps prior to discharging fill. The District Engineer will
then be responsible for determining whether the proposed activity would
result in more than minimal individual or cumulative adverse
environmental effects. If the District Engineer determines that the
adverse effects of the proposed work are more than minimal, he will so
notify the applicant and present his options (e.g., offer mitigation to
reduce impacts or apply for an individual permit). While this review is
not as extensive as that for an individual permit, we have determined
that it is sufficient to make the ``minimal effect'' determination.
In March 1995, the Corps issued a Regulatory Guidance Letter
regarding individual permit flexibility for small landowners. This
guidance indicated that the Corps will presume that small landowners
have no practicable alternatives on property not owned by the
landowner. This guidance is to be used for activities affecting up to 2
acres of non-tidal wetlands for the construction or expansion of a
single-family home and attendant features, or a farm building, or for
the expansion of a small business facility. In accordance with 40 CFR
230.7, consideration of alternatives is not directly applicable to
general permits. Other existing NWPs require compensatory mitigation
where the individual or cumulative impacts from a discharge are more
than minimal. We believe that the activities covered by this NWP will
have minimal impacts. However, there may be cases where the cumulative
impacts within a particular watershed become more than minimal. In
these instances, the District Engineers have the authority to require
compensatory mitigation. Additionally, on-site avoidance and
minimization will be required in all cases for the entire parcel.
Water dependency criteria under the section 404(b)(1) Guidelines
establishes
[[Page 38655]]
a rebuttable presumption that other, less environmentally damaging,
practicable alternatives exist for the proposed project. It does not,
however, as suggested by some commenters, allow authorization of only
water dependent projects. Further, as indicated above, the alternative
test does not apply to general permits. Additionally, we believe that
for single-family housing activities qualifying for this NWP, other
practicable alternatives normally do not exist for these homeowners. We
do not agree that issuance of this NWP will affect the water dependency
standard of other 404 permitting procedures.
We did not intend to imply that a wetland can be altered as long as
there are no impacts to another man-made structure. Rather our intent
was to give an example of when it may be necessary to relocate a fill.
In addition, it is highly unlikely that an applicant will need to
discharge fill into a lake to construct a single-family house and
therefore, use of this NWP would normally not be authorized in such
cases. One term of this NWP is that the permittee will minimize on-site
and off-site impacts of the discharge. We believe that this NWP will
have only minimal environmental adverse effects. However if, on an
individual basis, the impacts are determined to be more than minimal,
then the NWP does not apply.
4. Subdivisions
The comments indicated there was some confusion regarding the
subdivision provision. There were several requests for an overall
clarification of the subdivision clause. A few commenters requested
that a clear definition of a subdivision be provided, not only for the
purposes of understanding but to ensure that the circumstances the
Corps is trying to guard against do not surface as a problem. A few
commenters requested a more encompassing definition of subdivision.
Other commenters advised the Corps to carefully word the conditions
surrounding the subdivision date to prevent misinterpretation and
misuse.
``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. The definition of
the term ``real estate subdivision'' is the same as the existing
definition of that term that applies to NWP 26. However, the date of
the subdivision provision is different for this NWP and NWP 26 as
discussed below.
Several commenters agreed that March 6, 1995, was an appropriate
date regarding the subdivision provision of the NWP. Several commenters
questioned how the March 6, 1995, date was selected. A few commenters
argued that the March 6, 1995, date penalizes developers who subdivided
their property after October 5, 1984, since under existing regulations
they were required to avoid and minimize impacts for the entire
subdivision but would not under the new NWP. Some of the commenters
further said that these developers may have realized greater profits if
they had not followed the regulations. Many commenters recommended that
the date be changed to October 4, 1984. Some of the reasons given to
justify this date include remaining consistent with NWP 26, avoiding
complicated regulations when we are supposedly simplifying, avoiding
greater individual and cumulative impacts in subdivisions created prior
to March 6, 1995, and avoiding negation of previous wetland master
planning efforts. Other reasons were centered around the large number
of subdivisions created since 1984, and because property owners were
made aware, at that time, of the need for Section 404 permits to
develop lots. One commenter stated that modifying the date to October
5, 1984, would penalize existing single lot owners who purchased lots
in subdivisions in the last 10 years. Another commenter questioned how
the NWP would apply in a situation where the subdivision is approved
and lots are being sold but are not completely sold by March 6, 1995;
the question was whether or not early lot owners would be treated
differently. One commenter suggested allowing this NWP to apply to
individuals who purchased property prior to October 5, 1984. One
commenter recommended that this NWP should not apply in cases where
property was platted prior to 1984, but is currently undeveloped and
under one ownership. One commenter stated that modifying the
subdivision provision to allow for the later date could create legal
conflict in existing subdivisions where the developer has placed
restrictive covenants on property that has been sold and developed
because the property owners would seek authorization for expansion.
Several commenters recommended that the date be modified to the
effective date of the permit so as to maximize the number of
individuals who may take advantage of the permit.
March 6, 1995, was the date that this NWP was proposed. November
22, 1991, is the date in which the current NWP program regulations,
including issuance of, reissuance of and modifications to the existing
NWPs were published in the Federal Register. It was in these
regulations that the terms surrounding subdivisions for the purpose of
NWP 26 were outlined and awareness of the subdivision clause was
heightened. With few exceptions, we believe this date would be fair to
all parties. We do not believe that the November 22, 1991, date will
penalize any one group of individuals. The subdivision date issue
centers on when a parcel is subdivided into smaller parcels, not when
the subdivided smaller parcels are sold. Therefore, individual parcel
owners will not be penalized based on when they purchased property.
Furthermore, we understand that this NWP may not appear to address all
possible scenarios similarly. However, we will encourage Corps
districts to use consistency when reviewing any project under this new
NWP and to give consideration to existing authorizations a property
owner may have. Upon review and consideration of the comments, we
determined that the appropriate date regarding subdivision creation
should be November 22, 1991.
Any subdivisions or lots that were platted, developed, sold, or
purchased in the past were done so under regulations in place at that
time. This NWP does not apply to wetlands in developed subdivisions
where restrictive covenants have been employed to preserve such
wetlands. If the subdivision was platted on or after November 22, 1991,
the aggregate total of impacts within the subdivision cannot exceed 0.5
acre. Similarly, if a parcel was subdivided prior to November 22, 1991,
each lot owner may use this NWP, regardless of when he purchased the
property. However, any previously permitted fill must be added to any
fill proposed under this NWP such that the aggregate total impacts for
the lot does not exceed 0.5 acre.
This NWP will not be modified to exempt situations such as the
aforementioned where property was platted prior to 1984, but is
currently undeveloped and under one ownership. We realize that under
this authorization, impacts in such a scenario have the potential to
become unacceptable. However, NWPs do not apply in cases where
cumulative impacts are more than minimal. Furthermore, Corps Division
Engineers may exercise their discretionary authority to require
individual permits or mitigation for the
[[Page 38656]]
individual homesites to address cumulative impacts. Additionally, we do
not believe that such situations are prevalent and therefore will not
present a problem.
With regard to dealing with property owners who subdivided their
parcel prior to November 22, 1991, and either acquired a Department of
the Army permit or did not, we understand that this NWP may not appear
to address the 2 scenarios similarly. However, we will encourage Corps
districts to use consistency when reviewing any project under this new
NWP and to give consideration to existing authorizations a property
owner may have. For example, if the district has previously required a
permittee to provide the total plan of development including
infrastructure and lot fill, then we would expect the district to
require such information of all permittees under this NWP.
One commenter stated that there is no limit on how much area could
be impacted within a subdivision. Another commenter questioned to what
size subdivisions the NWP would apply, specifically, a few buildable
lots subdivided from a small parcel or several lots complete with
infrastructure. Another commenter questioned how the Corps would
address a situation where landowners create parcels one at a time over
a period of time. One commenter suggested that this NWP might lead to
many smaller subdivisions, thus making cumulative impact tracking more
difficult. One commenter stated that the NWP should not apply to
residential or commercial developments but rather to single-family
developments in private family ownership. Another commenter stated that
the NWP would probably be used more for large landowners seeking to
build a large subdivision rather than small landowners, for which the
permit was intended.
Regarding use of this NWP, there is no threshold on parcel size.
The 0.5 acre limit applies to all single-family housing activities
complying with this NWP. The use of Corps district databases will be
utilized to assist in one-time, per lot usage and cumulative impact
tracking. The size or number of subdivisions within a watershed should
not affect this mechanism. It is anticipated, based on the aggregate
acreage threshold, that this NWP will not be utilized for many
residential developments created on or after November 22, 1991, and
commercial developments are not permitted under this NWP. Furthermore,
it is anticipated that landowners will choose to receive verification
under NWP 26, where applicable, since the acreage threshold under the
single-family housing NWP is more restrictive. The Corps believes that
large landowners seeking to build a single-family residence will
generally have more options with regard to where they place a homesite,
thereby, negating the large landowners' need for this NWP.
Nevertheless, the maximum acreage of impacts to non-tidal wetlands
under this NWP is 0.5 acre regardless of whether the landowner owns a
large parcel and intends to subdivide or owns a small parcel for a
single residence. The term of this NWP which is applicable to
subdivisions states that the discharge must be part of a single and
complete project and that for any subdivision created on or after
November 22, 1991, the discharges authorized under this NWP may not
exceed an aggregate total loss of waters of the United States of 0.5
acre for the entire subdivision.
A few commenters questioned how the Corps will track each landowner
in a development, determine if the NWP has been used, track the number
of times a parcel has been subdivided and when a parcel was subdivided.
Another commenter questioned what requirements will be placed on
permittees to provide evidence that demonstrates that the project meets
this provision of the NWP.
Each Corps district has a computer database to assist with the task
of tracking pertinent information. The Corps districts will continually
monitor their tracking mechanisms and make adjustments, as necessary,
to ensure production of the most reliable data. Additionally, the Corps
must depend on facts presented by the applicant during the notification
process and will verify such information, as needed, using available
data. Taking all of this information together, the Corps makes the
final determination on whether an activity complies with the NWP.
5. One-Time Use
Many questions surrounded the issue of one-time use. One commenter
stated that this condition was too ambiguous and asked for
clarification. Many commenters suggested clarifying this term of the
NWP by stating that it is to be used once per individual and once per
lot. A few commenters questioned whether a successive parcel owner can
fill an additional 0.5 acre. One commenter stressed the importance of
explaining that, within a subdivision, the landowner cannot use his or
her one-time allowance if the 0.5 acre loss for the subdivision has
already occurred through another landowner's or the subdivision
developer's action. A few commenters raised the issue of whether a
loophole exists when a developer subdivides a parcel after March 6,
1995, then sells lots to individuals who may then use this NWP. The
commenter stated that the developer may legally defend that each
project is single and complete. However, the cumulative impacts would
be more than minimal. A few commenters inquired about how this NWP
applies to property owners who own more than one lot or who move to a
new lot. One commenter suggested that because farming operations may
need more than one single-family housing NWP, the one-time allowance
should be determined on a case-by-case basis. A few said the NWP should
be allowed to be used an unlimited number of times. One commenter
stated that the NWP should only be available to individuals who own a
specific piece of property at the time the permit becomes effective.
Several commenters recommended eliminating this one-time use
provision because of enforcement difficulties and the idea that permits
should apply to projects, not individuals. Some questioned how tracking
of this condition would be accomplished. One commenter raised the issue
that since the permittee does not have to own the property, another
individual could apply for the NWP on behalf of the property owner who
has already used his one-time allowance. Several other commenters
inquired about transferring one-time use to others and how this would
be prevented.
This NWP was developed to address situations where land was
subdivided into homesites or where individuals purchased homesites for
the purpose of building a single-family home. We did not intend to
limit its use to land that an individual owns on a given date. We also
did not intend the NWP to be used for further subdivision of property
for residential development in wetlands. By applying the NWP to
aggregate impacts in subdivisions created on or after November 22,
1991, we encourage the use of individual permits for such development.
Therefore, we do not believe that the NWP should be restricted by the
date on which an applicant purchased a piece of property or be limited
to only those individuals who own the land at the time this NWP becomes
effective. In an effort to hold cumulative impacts to a minimum, we
proposed the one-time usage clause. Upon further consideration and
review of the comments, the Corps decided to restrict use to an
individual who may use this NWP only for a single-family home for a
personal residence. As an example, an individual could choose to
[[Page 38657]]
construct a single-family homesite for a seasonal (e.g., summer)
residence, or for both an East Coast and West Coast residence. Such an
individual may use this NWP in each situation with the stipulations
that the home is for a personal residence and all other terms and
conditions are met. However, we believe that the vast majority of
individuals would only need this NWP once in their lifetime.
Additionally, we determined that the one-time usage provision of this
NWP should apply to the lot for a single-family housing activity. Thus,
successive property owners cannot fill additional 0.5 acre fragments of
a lot using the NWP. The total impacts for a specific lot cannot exceed
the 0.5 acre threshold whether filled by a previous owner, developer,
or an individual within a subdivision created on or after November 22,
1991. Consequently, when determining if a single-family housing
activity is authorized by this NWP, any fill material currently
permitted for the lot must be added to any proposed fill such that the
total impacts do not exceed 0.5 acre. We believe that applying this
usage restriction to both individuals and the lot is necessary to
ensure that the impacts will be minimal and that the NWP will be used
for the type of housing for which it was developed.
We have addressed many of the enforcement issues raised by adding
several requirements to the PCN. Enforcement will be accomplished by
requiring that the applicant submit a statement declaring that the
single-family housing activity is for a personal residence of the
permittee, stating how many times this NWP has been used, and listing
other property owned by the applicant in the vicinity of the proposed
single-family homesite. The Corps will use district databases to
monitor use of this NWP, and if this provision is abused, we will
consider appropriate action to address the abuse.
6. Attendant Features
A few commenters requested a more encompassing definition of
``attendant features'' beyond those examples that were listed in the
proposed Federal Register notice. One commenter stated that such an
ambiguous term may prompt a prospective permittee to assert that
anything is an attendant feature. Several commenters recommended
including amenities such as yards, pools, tennis courts, barns,
stables, in addition to housepads, driveways, and septic systems.
However, the majority of the commenters disagreed with the idea of
authorizing fill for non-essential amenities such as tennis courts,
swimming pools, ponds, and gazebos, some stating that such
accommodations were non-water dependent. Some of these commenters
recommended limiting fill to foundations only, while others approved of
the need for additional fill for driveways and garages. While some
commenters included septic fields as an essential feature for the
construction of a single-family residence, many specifically disagreed
with allowing fill for septic fields. Some of the reasons given were
water quality impacts, discrepancies with existing state and local
regulations, and the existence of other available options for
wastewater treatment.
A few commenters also singled out disallowing fill for a yard
because of the adverse impacts associated with fertilizers and
pesticides. One commenter suggested such attendant features be
authorized on a regional basis if they are standard for a particular
area. One commenter stated that if attendant features were not included
in this NWP authorization, then the permittee would have to endure
individual permit processing for minor, additional work.
The purpose of this NWP is to reduce the regulatory burden
associated with the construction of single-family homes while
maintaining environmental protection. When building single-family homes
we recognize that, besides the foundation of the house itself, there
are activities associated with a house that are considered necessary,
customary, or normal to homesites. We believe these ``attendant
features'' should normally be authorized with the house. We would not
accomplish the purpose of this NWP if we were to authorize the house
only and process an individual permit for the attendant features.
Attendant features for the purpose of this NWP, include features that
are reasonable, necessary appurtenances constructed in conjunction with
single-family housing activities. Examples include a garage, driveway,
storage shed, septic field, and yard. Examples of inappropriate
attendant features not covered by this NWP include a barn, which may be
covered by NWP 40, or a small business. Such features would not be
directly related to a single-family home. While we believe that a yard
is an appropriate attendant feature of a single-family home, we have
not identified a size that would be acceptable. Corps districts will
work with the applicant to ensure that acceptable, but not excessive,
yards are authorized. This NWP only authorizes activities from the
perspective of the Corps regulatory authorities; other Federal, state,
and local permits, approvals, or authorizations may also be required.
The permittee would be responsible for obtaining all necessary
authorizations, including building permits, prior to placing a septic
system, yard, or any other fill in wetlands. Additionally, water
quality is a concern addressed by applicable state agencies as well as
the Corps. It is the permittee's responsibility to obtain any necessary
water quality approvals or authorizations prior to the discharge of
fill. Furthermore, while properly designed, constructed, and operated
septic systems can be placed on fill in many wetlands, the septic
system must be approved by the appropriate state or local agency. The
Corps has determined the extent of the attendant features to be applied
on a nationwide basis. If an individual district concludes that a
particular feature should not be authorized under this NWP, then the
Division Engineer must regionally condition the NWP to exclude the
feature. Furthermore, additional restrictions may be placed by states
in 401 water quality certification or CZM consistency determination. On
a case-by-case basis, where a particular feature is not appropriate at
a specific site, the District Engineer may condition the NWP or require
an individual permit.
Other concerns were raised during the comment period on the
following specific issues:
7. Permit Applicability
We received a wide range of recommendations to both increase and
decrease the applicability of the single-family housing NWP. Many
commenters raised the issues regarding the geographic scope of waters
of the United States. Several others offered suggestions to expand the
category of activities to which this NWP would be applicable. Several
commenters raised the issue of the definition of non-tidal waters and
how it applies to this NWP. One commenter stated that with this NWP,
the Corps is broadening their authority beyond that allowed under
Section 404 of the Clean Water Act, specifically by regulating
excavation, flooding, and draining.
With regard to decreasing the applicability of this NWP, several
commenters replied by listing a variety of geographic areas from which
this NWP should not apply. Different commenters suggested limiting the
scope of the NWP to isolated systems only, wetlands only, and wetlands
above the headwaters. Other areas suggested to be disallowed by this
NWP include threatened and endangered species habitats, sensitive or
important wildlife and fisheries habitats, highly developed areas, non-
riverine wetlands,
[[Page 38658]]
riparian or lacustrine wetlands, areas on state and national scenic
rivers, national park areas, national wildlife refuges, bogs, ferns,
springs, forested wetlands, rivers, streams, lakes containing
anadromous or native fish, and wetlands identified as high value in
state or Federal land management plans or wetland inventories. With
regard to increasing the applicability of this NWP, one commenter
recommended expanding the authorization to include tidal as well as
non-tidal wetlands. Several other commenters made no recommendation
regarding the applicability of certain systems, but simply inquired as
to whether marine waters, surface waters, estuaries, riparian zones,
streams, ponds, non-wetland special aquatic sites and freshwater
riverine systems were included.
Many commenters raised the issue of analyzing the functions and
values of wetlands. Some stated that higher quality wetlands warrant a
more rigorous review than do lower quality wetlands and that non-tidal
systems were not necessarily less valuable than tidal systems. Several
recommendations were made to develop a functions and values rating
system and some suggested that such functions could be better evaluated
at the local level. One commenter stated that man-made wetlands should
be exempt from all environmental regulations, while another commenter
made a more general statement that certain wetlands having no real
value should be exempt from regulations.
The Corps of Engineers regulates the discharge of dredged or fill
material under Section 404 of the Clean Water Act. The discharge of
dredged material includes discharges incidental to any activity
including mechanized landclearing, ditching, channelization, or other
excavation. Furthermore, in evaluating permit applications and pre-
construction notifications, the Corps considers the effects of flooding
and draining with respect to the proposed project. However, the Corps
includes excavation, flooded and drained areas in measuring the acreage
of loss to ensure that the impacts of the proposed project are minimal.
Limiting this NWP to many of the aforementioned suggestions would
negate the need for the permit due to existing authorizations that
cover these categories. In some areas listed above, the Division and
District Engineers have the authority to regionally condition the NWP
to exempt these systems or require an individual permit, if warranted.
Discharges of fill in tidal waters for residential development are
generally not reasonable or practicable since contiguous, more suitable
property is usually available. Furthermore, the individual permit
process is available to those who desire to request authorization to
discharge fill in tidal wetlands. We determined that applying this NWP
to non-tidal waters of the United States, including non-tidal wetlands,
is appropriate and assists in achieving the goal of targeting a large
group of people desiring to construct a single-family homesite with
minimal impacts.
At this time, the Corps has not adopted a functions and values
rating system for wetlands. While it is the Corps' responsibility to
regulate all Federally jurisdictional wetlands regardless of their
value unless specifically exempted by section 404(f), we do take into
account the relative functions of the resource when deciding how to
regulate. It is anticipated that single-family residential construction
is not going to occur in aquatic ecosystems of the highest value. We
recognize, however, that there are circumstances where authorization in
a specific area under this NWP would not be appropriate. In those
cases, the Division or District Engineer may assert discretionary
authority to add regional conditions or revoke the NWP authorization
for activities in such areas. We believe that the Division and District
Engineers are more familiar with the wetlands and other aquatic
resources in their area and can best determine which of those resources
should be subject to individual permit evaluations or regional
conditions.
Several commenters recommended specific activities to which this
NWP should apply. Some of these activities include agricultural uses,
apartments, and commercial uses. One commenter suggested expanding the
permit to include residential buildings for a maximum of four families.
A few commenters argued that the impact to the resource is the same
regardless of use; therefore, land use should not be a factor in the
permit. Other categories that commenters suggested be excluded from
this permit include subdivisions with lots for commercial use and
significant areas conserved through an enforceable instrument.
This NWP was created for single-family housing activities. Allowing
this authorization to encompass all possible land uses would
dramatically increase cumulative impacts and surpass the intended scope
of this NWP. Furthermore, adopting many of the aforementioned
suggestions would be an unacceptably extensive change. Such a
modification to this NWP would require additional public notice and
opportunity for comment. The restrictive category of activities for
which this NWP applies remains as proposed.
The primary activity associated with this NWP is private
residential development. No commercial uses will be allowed. Any area
conserved through an enforceable instrument, such as a legal
conservation easement, is subject to the restrictions existing within
the document. For example, if this NWP is appropriate for use on a
parcel of land with the exception that development is prohibited on the
parcel by other restrictions, then the NWP would not apply.
Several commenters requested clarification of the definition of
non-tidal waters. One question was whether or not this NWP will apply
to wetlands adjacent to tidal waters. Another question was the extent
of tidal influence. One commenter interpreted the definition of non-
tidal as areas above mean high water, excluding all coastal areas
supporting halophytes and all freshwater wetlands subject to tidal
influences. One commenter pointed out that the terms ``waters of the
United States'' and ``wetlands'' were used interchangeably and
questioned which was appropriate. Another commenter questioned if
salinity characteristics in the water column would be used to define
tidal waters. One commenter asked if areas blocked by tide gates and
man-made berms would be considered tidal waters. Another commenter
inquired as to whether the NWP cover activities within wetlands as
defined in 40 CFR 230.3(s) and 40 CFR 230.3 (t).
The definition of tidal waters can be found in 33 CFR 328.3(f) and
is defined as those waters that rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters end where the rise and fall of the water surface
can no longer be practically measured in a predictable rhythm due to
masking by hydrologic, wind, or other effects. The limits of
jurisdiction in non-tidal waters of the United States can be found in
33 CFR 328.4(c). This regulation does not mean that wetlands adjacent
to tidal wetlands are also tidal wetlands, but rather that in coastal
areas, Corps jurisdiction extends to the limits of these ``non-tidal
wetlands'' that are adjacent to tidal wetlands. Consequently, this NWP
is applicable to wetlands that are adjacent to tidal wetlands. Areas
blocked by tide gates may modify the area behind the tide gate so as to
no longer meet the definition of tidal waters. The Corps district
office would make this decision
[[Page 38659]]
on a case-by-case basis. However, in any case, such tide gates would
not remove Section 10 jurisdiction.
8. Relationship of this NWP to other NWPs
Several commenters questioned the applicability of existing NWPs as
they relate to the single-family housing permit. One commenter
questioned the 0.1 acre threshold of the NWP 18 and how it compares to
this new NWP. One commenter observed that this NWP might amend or
supersede NWP 18 since NWP 18 only authorizes 0.1 acre of fill for
minor discharges. Many commenters stated that NWP 26 completely covers
the activity to be included in this NWP. A few commenters suggested
expanding the application of either the existing NWP 26 or NWP 18 in
lieu of issuing a new NWP. Many other questions were raised about the
combined use of NWPs. A few commenters expressed that it is redundant
to have two NWPs that authorize the same type of activity. Several
commenters recommended not allowing combination of authorizations in an
effort to avoid more than minimal impacts, and suggested that if there
is a need for more than one NWP per project, then the project should be
evaluated under an individual permit process. Several commenters
recommended that projects authorized with this NWP should not be
provided additional coverage under any other individual permit or NWP.
Each NWP is issued to authorize certain types of activities.
However, in some cases a particular activity may qualify for more than
one NWP or a combination of NWPs.
Consequently, some single-family housing activities could qualify
for either NWP 18 or NWP 26. For example, NWP 18 could authorize 0.1
acre of fill in any wetland; NWP 26 could authorize up to 10 acres of
fill in a wetland above the headwaters or an isolated wetland, while
this NWP could authorize up to 0.5 acre of fill in a non-tidal wetland.
Therefore, it is possible that a single-family home involving 0.1 acre
of fill in a wetland above the headwaters could qualify for either NWP
18, NWP 26, or this NWP. Our regulations provide for multiple use of
NWPs (but each one only once for a single and complete project)
provided that the combined impacts are minimal. Furthermore, if an NWP
authorized activity is an integral part of a larger project which
requires an individual permit, then that NWP will not be valid for that
portion of the larger project and an individual permit is required for
the entire project, including the NWP portion. This NWP is intended to
authorize single-family housing, including attendant features where the
maximum impact on waters of the United States does not exceed 0.5 acre.
We did not intend this NWP to authorize a portion of a single-family
housing activity that was in excess of 0.5 acre. Therefore, if such a
single-family housing activity, including attendant features, is being
proposed that exceeds 0.5 acre, this NWP cannot be used in conjunction
with other NWPs, regional general permits, or individual permits to
authorize the project. We further believe this restriction may be
confusing and could cause some inadvertent violations of the NWP.
Therefore, to clarify this point we have added a condition to the NWP
to indicate that it cannot be used with NWPs 26, 18, and 14.
Furthermore, Division Engineers will add regional conditions to ensure
that it is not used with any similar regional general permits.
9. Cumulative Impacts
Many commenters stated, in general terms, that the proposed NWP
would result in detrimental cumulative impacts on the aquatic
environment. Many other commenters were specifically concerned with the
cumulative loss of wetland functions, specifically, fish and wildlife
resources, endangered species, filtration, groundwater recharge and
stormwater retention. Concerns over increased flooding potential were
the most often stated.
A few commenters stated that limiting the aggregate loss of
wetlands to 0.5 acre for the entire subdivision only in real estate
subdivided after March 6, 1995, does nothing to protect wetlands in
already existing subdivisions. They gave examples of existing, platted
subdivisions, comprised of dozens, hundreds, and thousands of lots
which could amount to substantial cumulative impacts within a given
watershed.
One commenter questioned how cumulative impacts would be addressed
without the full review of the individual permit process. One commenter
stated that such a permit would allow for an entire, large wetland
system to be destroyed since there is no limit on the number of 0.5
acre sites that may be located on it.
Because the activity associated with the use of the NWP could be
located within the floodplain of a waterbody, there is potential for
increased flooding and reduced flow. The modified notification process
will allow the District Engineer to evaluate the proposed impacts,
including potential flooding impacts, compare them to existing impacts
within the wetland system or watershed, and determine if the project
has more than minimal individual or cumulative effects. The District
Engineer has the discretionary authority to place conditions upon a
proposed activity to avoid or minimize these potential impacts. If the
activity is determined to be more than minimal, the District Engineer
can require mitigation or an individual permit. With regard to this and
other potential cumulative wetland functions impacts, this NWP will be
subject to the conditions that apply to all NWPs. The district and
division offices may identify specific geographic areas, such as a
subdivision, where there may be concerns over cumulative impacts to a
watershed, and revoke this NWP in specific geographic areas or develop
regional conditions that apply to that specific area. Many districts
and divisions have already revoked NWPs or imposed such regional
conditions in many geographic areas or wetland or water types.
10. Regulatory Burden
Several commenters supported this NWP because it would reduce the
regulatory burden on the public by simplifying the process to obtain
approval of single-family housing activities and would reduce the Corps
regulatory workload. An equal number of commenters were opposed to the
NWP. The principal reason for such opposition was a perception that the
NWP would result in less environmental protection. Also, a few
commenters believed the NWP is not necessary either because the current
individual permit process is not a burden on the public, existing NWPs
are adequate to cover single-family housing activities, or because the
NWP is motivated only by politics. One commenter felt the NWP would
encourage poor construction practices (e.g. the construction of
structures on wetland fills). A few commenters indicated that, rather
than this NWP, state programs would be a better mechanism to reduce
burden on the public and the Corps. Programs such as State assumption,
State Programmatic General Permits (SPGP), and State stewardship
workshops assist landowners in utilizing their lands in an
environmentally sensitive manner and reduce inconsistencies among
federal, state and local regulations. Many commenters believed that we
were increasing the regulatory burden on the public based on their
understanding that we were proposing, for the first
[[Page 38660]]
time, to begin regulating single-family housing activities.
We believe this NWP will be applicable to over 95% of all single-
family housing activities. Statistical data from the U.S. Department of
Commerce and the U.S. Department of Housing and Urban Development
reveals that approximately 90% of residential landowners in the United
States own parcels that are 0.5 acre in size or less. Furthermore, most
houses are less than 2000 square feet while few exceed 10,000 square
feet. Therefore, we believe that virtually all single-family houses
could easily fit on less than 0.25 acre. This would allow in excess of
0.25 acre for attendant features. We believe this would be sufficient
for all but a few single-family homes. Currently, the Corps regulates
the discharge of dredged or fill material for many single-family
housing activities by the individual permit process. A number of
single-family housing activities are also currently authorized by
regional general permits or other NWPs, such as NWP 26. Our proposal
will allow us to regulate, with this NWP, the vast majority of single-
family housing activities that are not now covered by other general
permits. Virtually all individual permit applications for single-family
housing activities are issued. This NWP provides a quick approval
process while, through the notification process, we would ensure that
impacts are minimal and on-site impacts will be avoided or minimized to
the extent practicable. However, some single-family housing activities
would continue to be authorized by other NWPs or Regional General
Permits which, in many cases, would be less burdensome. Where State
mechanisms are available, and are determined to provide equivalent
environmental safeguards, the Corps district and division offices will
consider regional conditions or revocations of this NWP to reduce any
unnecessary regulatory burden on the public. For example, our New
England Division has proposed to revoke this NWP in the State of New
Hampshire, because an existing State regulatory program and a Corps
SPGP already adequately regulate single-family housing activities in
that state. Therefore, in New Hampshire, single-family housing
activities that qualify for a State permit would be authorized by the
Corps SPGP. Other districts and divisions are proposing or considering
similar State mechanisms to reduce unnecessary regulatory burdens. In
conclusion we believe that this NWP in conjunction with other NWPs and
Regional and SPGPs will provide for an expedited decision for all but
the most atypical or extremely large single-family housing activities.
Therefore, over 90% of single-family housing activities would now
qualify for a general permit, which should reduce the average permit
processing time from a little over 100 days to less than 30 days.
Several commenters stated that this NWP would be inconsistent with
either state or local wetland protection programs. Several of these
commenters asserted that the NWP would be more lenient than state or
local wetland protection programs and would tend to weaken state and
local positions regarding wetland protection. In some of those cases
where NWPs have been revoked in conjunction with SPGPs, the involved
states were concerned that this NWP would add complexity and confusion
to the process. A few commenters stated that the NWP preempts state and
local wetland protection laws and building codes. These commenters, in
general, also asked that all permittees be notified of the requirements
to obtain other state and local required permits and approvals. A few
commenters suggested that some other agency be responsible for
administering and implementing the 404 wetlands program.
In those States where NWPs have been suspended or revoked in
conjunction with SPGPs, the districts have the authority to suspend or
revoke this NWP as well, and we anticipate they will give serious
consideration to such action. As discussed in 33 CFR 330.4 of the NWP
Program Regulations, NWPs do not obviate the need to obtain other
Federal, State, or local permits, approvals, or authorizations required
by law; nor do they grant any property rights or exclusive privileges.
We believe that this NWP does not represent a relaxing of Federal
protection for wetlands, but rather strengthens our capability to deal
effectively with those cases involving greater than minor impacts. The
Corps currently has the responsibility for implementing and
administering the Section 404 program and will continue to uphold this
responsibility until otherwise directed.
One commenter stated that improved service to landowners can be
addressed by hiring adequate staff. Another stated that workload
savings is not a justifiable reason to relax regulation of nationally
important resources.
Budgetary constraints are continually a source of concern.
Therefore, other avenues must be pursued to improve service to the
public and make the program more efficient. The Corps agrees that
regulatory requirements protecting wetlands should not be relaxed to
facilitate workload savings at the expense of needed environmental
protection. The same aquatic systems will be regulated, but in an
expedited manner. In an attempt to relieve the regulatory burden on
small landowners, this new NWP is designed to streamline the process
for such individuals desiring to build a residence, and we believe it
will be successful to this extent.
11. Enforcement
Several issues regarding enforcement of distinct aspects of this
NWP were raised. A few commenters expressed concern that permittees may
not use the NWP for the construction of a home but for some other use
and that they may exceed the allowed impact acreage. A few commenters
raised the issue of enforcement regarding the flooding of adjacent
property as a result of fill material authorized by this NWP. One
commenter questioned how the Corps can determine adverse effects from
flooding and drainage without reviewing necessary hydrologic
information; how the Corps can ensure maintenance of structures without
reviewing engineering analyses and design calculations; and who is
responsible for infrastructure failures. One commenter specified
enforcement of the notification requirement, specifically, that
permittees will be tempted to fill first then notify the Corps or not
notify the Corps at all. Many commenters discussed general enforcement
of both the existing NWPs and the proposed NWP, claiming that the Corps
fails to enforce compliance with general permits. All commenters
questioned how compliance with the NWP conditions would be enforced.
Corps regulations at 33 CFR part 326 detail the Corps' enforcement
procedures for all general and standard permits. Additionally, the
Corps district offices have enforcement and compliance procedures in
place which they implement at the district level. Furthermore,
generally the Corps staff has the expertise to assess the adverse
effects from flooding and drainage without reviewing detailed
hydrologic information. However, this data can be obtained and examined
when necessary. It is not anticipated that single-family housing
activities covered under this NWP will require such detailed analysis
except when considering cumulative impacts. It is not the Corps', but
the permittee's, responsibility to maintain the structural integrity of
his or her dwelling and attendant features. No new enforcement issues
have been raised that the Corps hasn't encountered in the
[[Page 38661]]
past. Enforcement and compliance violations such as those mentioned by
the commenters will occur. When they do, we will resolve the violations
in the most expeditious and equitable manner possible.
12. Public Hearing
Many commenters requested that a public hearing be held. For the
most part, commenters did not specify reasons for holding a hearing.
However, some commenters did present more definitive reasons, which
included increasing community awareness of the proposal, discussing in
greater detail the individual and cumulative effects, and allowing
property owners a chance to address the proposal in an open forum. A
few others stated that a change in permitting procedures of this
magnitude warranted a public hearing.
A public hearing is held when there is a need to acquire new
information to consider in evaluating a proposed Department of the Army
permit action. Upon close scrutiny of the comments in response to this
NWP, we concluded that it was unlikely that new information regarding
the single-family housing NWP would be obtained through a public
hearing. Therefore, a public hearing will not be held for the NWP.
Public hearing requests for local and regional issues, regional
conditions, and regional modifications, will be evaluated by Corps
district and division offices, which will determine if a public hearing
is warranted locally.
13. Need for Environmental Impact Statement
Several commenters requested that an environmental impact statement
be completed. One commenter recommended that a systematic scientific
study be undertaken to determine the degree of potential impacts. Other
commenters stated that the NWP is inconsistent with the 404(b)(1)
Guidelines.
Environmental documentation has been prepared for the NWP and
includes an environmental assessment and Section 404(b)(1) Guidelines
compliance review. Copies of this document are available for inspection
at the office of the Chief of Engineers and at each Corps district
office. The document demonstrates that this NWP complies with the
requirements for issuance under general permit authority. This includes
consideration that, because some projects that may be authorized by the
NWP may have a potential to cause more than minimal adverse effects on
the environment, the NWP has been conditioned to require notification
to the District Engineer. Furthermore, there are several conditions
imposed on the NWP to further minimize impacts of single-family housing
activities. In this way, we have ensured that activities will not occur
under the NWP which would cause more than minimal adverse effects on
the environment. Furthermore, although secondary and cumulative
impacts, in general, have been considered in the documentation, the
notification requirement will allow for further consideration of these
impacts. The Corps has made a final determination that this action does
not constitute a major Federal action significantly affecting the
quality of the human environment.
14. Miscellaneous
A few commenters recommended a checklist, document or booklet be
established that would outline what permits are necessary, the
purposes, identify the entity processing the permit, timeframes
associated with processing, and a fee schedule. One commenter suggested
that many landowners would not know the answers to many issues that
will need to be addressed in utilizing this NWP, nor will they be
inclined to hire a consultant to assist them. Concurrent with this
Federal Register notice, Corps district offices will issue local public
notices. These public notices will include regional information about
the NWP and how to notify the district offices. We agree that
additional information regarding this and other NWPs would be useful to
landowners. We will begin developing a manual or booklet to address
this. One commenter requested that the Corps quantify, by district, the
``large number of permit applications'' for single-family housing
activities referenced in the proposal for this NWP, because the need
for such a permit may not be nationwide. The Corps conducted an
internal survey of Corps districts requesting information on the number
of permit applications for which this NWP would apply to determine the
need for such a permit. The results warranted the proposal of a single-
family housing NWP. One commenter stated that no information was
provided about the wetlands potentially affected by this NWP or about
the general, special and regional conditions of this NWP. Another
commenter questioned if the existing general conditions apply to this
NWP. The type of wetlands, specifically non-tidal, were identified in
the public notice. The NWP general conditions and Section 404
conditions were not rewritten but were referenced in this NWP proposal.
All general conditions pertaining to the other NWPs also apply to this
NWP, with the exception of notification condition which still applies
but has been modified for the purpose of this NWP only. For clarity,
the NWP conditions are published in this Federal Register notice below.
Furthermore, regional conditions will be added by the Division
Engineer, where appropriate, for a specific area; and special
conditions will be added by the District Engineer on a case-by-case
basis, where applicable. A few commenters stated that the NWP does not
involve activities similar in nature, and therefore, does not qualify
as a NWP. One commenter raised the issue of the Corps' failure to
discuss, in the environmental assessment, that the activities are
similar in nature and will cause minimal individual and cumulative
adverse impacts. We believe that we have narrowly defined the scope of
this NWP for activities similar in nature. The only activities
authorized by this NWP are construction or expansion of a single-family
homesite with attendant features. In the preliminary environmental
assessment, we discussed, in detail, both the individual and cumulative
impacts likely to result from this NWP. One commenter stated that the
public notice made no reference to an expiration date for public
comment. The expiration date of May 8, 1995, was published in the
Federal Register; that publication was to be accompanied by a public
notice from each Corps district that reiterated the date. Another
commenter asserted that the permit language refers only to states and
not to sovereign Tribal Nations and to Public interest but not Tribal
interest. We do consider Tribal interest in addition to public interest
where concerns are raised. General condition number 8 addresses Tribal
rights and requires that they be considered. A few commenters declared
that the nationwide would not be in compliance with Executive Orders
11988 and 11990. The NWP does not encourage the destruction of wetlands
or development within the floodplain, but rather is a tool designed to
reduce regulatory burdens while maintaining appropriate levels of
protection. This NWP would not be in conflict with Executive Orders
11988 or 11990. A few commenters provided general recommendations
related to the economics of the program. One recommended that we
provide financial incentives for wetland protection; one recommended
that the program be based on the applicant's resource capability, not
tax status; one recommended that everyone involved in the Corps
evaluation process be held
[[Page 38662]]
financially liable for their actions in conjunction with each permit
processed; and one commented that we need to recognize the public cost
of environmental degradation. A few commenters expressed general
opposition to the federal government's regulation of private lands and
expressed the belief that if the government prohibits the filling, the
owner should be compensated. Such issues are beyond the scope of this
proposal and would require additional proposed regulations with
opportunity for public comment or even legislative changes. Therefore,
they are not addressed in this notice. In an effort to simplify the
program, one commenter recommended applying this NWP to all activities
at a lesser acreage, thereby justifying the revocation of many of the
other NWPs. One commenter suggested that we rework the entire NWP
program. Another commenter questioned if this NWP will be included in
the forthcoming NWP review process. At this time, we are not proposing
the reissuance, modification, or revocation of all other NWPs but will
do so prior to their expiration date of January 21, 1997. Comments
regarding this entire NWP package may be submitted at that time.
However, regarding the proposal for the entire NWP package, we will
propose that this NWP be reissued with all other NWPs. At this time,
our intent is to simply extend the expiration date of this NWP so that
it coincides with all other NWPs for administrative purposes.
Accordingly, a Nationwide Permit for single-family housing
activities is issued as follows:
Dated: July 19, 1995.
Approved:
Stanley G. Genega,
Major General, Director of Civil Works.
Nationwide Permit and Conditions
A. Nationwide Permit
Single-Family Housing. Discharges of dredged or fill material into
non-tidal waters of the United States, including 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) for an individual permittee provided:
a. The discharge does not cause the loss of more than \1/2\ acre of
non-tidal waters of the United States, including non-tidal wetlands;
b. The permittee notifies the District Engineer in accordance with
the ``Notification for single-family housing NWP'' general condition;
c. The permittee has taken all practicable 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 the parcel to avoid
flooding of adjacent property owners;
d. The discharge is part of a single and complete project;
furthermore, that for any subdivision created on or after November 22,
1991, the 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;
e. An individual may use this nationwide permit only for a single-
family home for a personal residence;
f. This nationwide permit may be used only once per parcel; and,
g. This nationwide permit may not be used in conjunction with NWP
14, NWP 18, or NWP 26, for any parcel.
For the purposes of this nationwide permit, the acreage of loss of
waters of the United States includes any filled area previously
permitted, the proposed filled area, and any other waters of the United
States that are adversely affected by flooding, excavation, or drainage
as a result of the project. This nationwide permit authorizes
activities only by individuals; for this purpose, the term
``individual'' refers to a natural person and/or a married couple, but
does not include a corporation, partnership, or similar entity. For the
purposes of this nationwide permit, a parcel of land is defined as
``the entire contiguous quantity of land in possession of, recorded as
property of, or owned (in any form of ownership, including land owned
as a partner, corporation, joint tenant, etc.) by the same individual
(and/or his or her spouse), and comprises not only the area of wetlands
sought to be filled, but also all land contiguous to those wetlands,
owned by the individual and/or his or her spouse in any form of
ownership.'' (Sections 10 & 404)
B. Nationwide Permit Conditions
General Conditions: The following general conditions must be
followed in order for any authorization by a nationwide permit to be
valid:
1. Navigation. No activity may cause more than a minimal adverse
effect on navigation.
2. Proper maintenance. Any structure or fill authorized shall be
properly maintained, including maintenance to ensure public safety.
3. Erosion and siltation controls. Appropriate erosion and
siltation controls must be used and maintained in effective operating
condition during construction, and all exposed soil and other fills
must be permanently stabilized at the earliest practicable date.
4. Aquatic life movements. No activity may substantially disrupt
the movement of those species of aquatic life indigenous to the
waterbody, including those species which normally migrate through the
area, unless the activity's primary purpose is to impound water.
5. Equipment. Heavy equipment working in wetlands must be placed on
mats or other measures must be taken to minimize soil disturbance.
6. Regional and case-by-case conditions. The activity must comply
with any regional conditions which may have been added by the division
engineer (see 33 CFR 330.4(e)) and any case specific conditions added
by the Corps.
7. Wild and Scenic Rivers. No activity may occur in a component of
the National Wild and Scenic River System; or in a river officially
designated by Congress as a ``study river'' for possible inclusion in
the system, while the river is in an official study status. Information
on Wild and Scenic Rivers may be obtained from the National Park
Service and the U.S. Forest Service.
8. Tribal rights. No activity or its operation may impair reserved
tribal rights, including, but not limited to, reserved water rights and
treaty fishing and hunting rights.
9. Water quality certification. In certain states, an individual
state water quality certification must be obtained or waived (see 33
CFR 330.4(c)).
10. Coastal zone management. In certain states, an individual state
coastal zone management consistency concurrence must be obtained or
waived. (see 33 CFR 330.4(d)).
11. Endangered Species. No activity is authorized under any NWP
which is likely to jeopardize the continued existence of a threatened
or endangered species or a species proposed for such designation, as
identified under the Federal Endangered Species Act, or which is likely
to destroy or adversely modify the critical habitat of such species.
Non-federal permittees shall notify the District Engineer if any listed
species or critical habitat might be affected or is in the vicinity of
the project and shall not begin work on the activity until notified by
the District Engineer that the requirements of the Endangered Species
Act have been satisfied and that the activity is authorized.
Information on the location of threatened and endangered species and
their critical habitat can be obtained from the U.S. Fish and Wildlife
Service and National Marine Fisheries Service. (see 33 CFR 330.4(f)).
[[Page 38663]]
12. Historic properties. No activity which may affect Historic
properties listed, or eligible for listing, in the National Register of
Historic Places is authorized, until the DE has complied with the
provisions of 33 CFR part 325, appendix C. The prospective permittee
must notify the District Engineer if the authorized activity may affect
any historic properties listed, determined to be eligible, or which the
prospective permittee has reason to believe may be eligible for listing
on the National Register of Historic Places, and shall not begin the
activity until notified by the District Engineer that the requirements
of the National Historic Preservation Act have been satisfied and that
the activity is authorized. Information on the location and existence
of historic resources can be obtained from the State Historic
Preservation Office and the National Register of Historic Places (see
33 CFR 330.4(g)).
13. Notification for single-family housing NWP.
(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 Pre-Construction 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 past use of this NWP by the individual permittee and/
or his or her spouse; any other NWP(s), regional general permit(s) or
individual permit(s) used in the past or intended to be used to
authorize any part of the proposed project or any related activity;
(4) A statement that the single-family housing activity is for a
personal residence of the permittee;
(5) A description of the entire parcel, including its size, and a
delineation of wetlands. (See paragraph (e) below.)
(6) A written description of all land (including, if available,
legal descriptions) owned by the prospective permittee and/or his or
her spouse, within a one mile radius of the parcel, in any form of
ownership (including any land owned as a partner, corporation, joint
tenant, co-tenant, or as a tenant-by-the-entirety) and any land on
which a purchase and sale agreement or other contract for sale or
purchase has been executed.
(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 for this NWP and must include all of the information required in
(b) (1)-(6) of this General Condition.
(d) In reviewing the Pre-Construction Notification for the proposed
activity, the District Engineer will determine whether the activity
will result in more than minimal individual or cumulative adverse
environmental effects or may 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, the
District Engineer 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 the District Engineer will notify the applicant that the
project does not qualify for authorization under the NWP. Furthermore,
the District Engineer will explain the procedures that are available to
seek authorization, which will include the following options: apply for
an individual permit, obtain authorization under any other applicable
general permits, or modify the project to qualify for the NWP.
(e) Wetlands Delineations: For the purpose of this NWP, parcels of
land measuring 0.5 acre or less will not require a formal on-site
delineation. However, the applicant shall provide an indication of
where the wetlands are and the amount of wetlands that exists on the
property. For parcels greater than 0.5 acre in size, a formal wetland
delineation 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 (see paragraph 13(a)(3) above) will
not start until the wetland delineation has been completed.
Section 404 Only Conditions: In addition to the General Conditions,
the following conditions apply only to activities that involve the
discharge of dredged or fill material and must be followed in order for
authorization by the nationwide permit to be valid:
1. Water supply intakes. No discharge of dredged or fill material
may occur in the proximity of a public water supply intake except where
the discharge is for repair of the public water supply intake
structures or adjacent bank stabilization.
2. Shellfish production. No discharge of dredged or fill material
may occur in areas of concentrated shellfish production, unless the
discharge is directly related to a shellfish harvesting activity
authorized by nationwide permit 4.
3. Suitable material. No discharge of dredged or fill material may
consist of unsuitable material (e.g., trash, debris, car bodies, etc.)
and material discharged must be free from toxic pollutants in toxic
amounts (see section 307 of the Clean Water Act).
4. Mitigation. Discharges of dredged or fill material into waters
of the United States must be minimized or avoided to the maximum extent
practicable at the project site (i.e. on-site), unless the DE has
approved a compensatory mitigation plan for the specific regulated
activity.
5. Spawning areas. Discharges in spawning areas during spawning
seasons must be avoided to the maximum extent practicable.
6. Obstruction of high flows. To the maximum extent practicable,
discharges must not permanently restrict or impede the passage of
normal or expected high flows or cause the relocation of the water
(unless the primary purpose of the fill is to impound waters).
7. Adverse impacts from impoundments. If the discharge creates an
impoundment of water, adverse impacts on the aquatic system caused by
the accelerated passage of water and/or the restriction of its flow
shall be minimized to the maximum extent practicable.
8. Waterfowl breeding areas. Discharges into breeding areas for
migratory waterfowl must be avoided to the maximum extent practicable.
9. Removal of temporary fills. Any temporary fills must be removed
in their entirety and the affected areas returned to their preexisting
elevation.
[FR Doc. 95-18455 Filed 7-26-95; 8:45 am]
BILLING CODE 3710-92-P