[Federal Register Volume 64, Number 167 (Monday, August 30, 1999)]
[Notices]
[Pages 47175-47178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22285]



[[Page 47175]]

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers


Final Notice of Modification of Nationwide Permit 29 for Single 
Family Housing

AGENCY: Army Corps of Engineers, DoD.

ACTION: Final notice.

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SUMMARY: On April 30, 1998, a court order was issued by the United 
States District Court, District of Alaska, remanding the Secretary of 
the Army to consider lower acreage limits for Nationwide Permit (NWP) 
29 and consider excluding high value waters from NWP 29. NWP 29 
authorizes discharges of dredged or fill material into non-tidal waters 
of the United States for the construction of single family residences, 
including attendant features. The court order also prohibited the Corps 
of Engineers (Corps) from accepting preconstruction notifications for 
any NWP 29 activity after June 30, 1998. In the July 1, 1998, Federal 
Register (63 FR 36040-36078) the Corps proposed to modify NWP 29 to 
reduce the acreage limit from \1/2\ acre to \1/4\ acre. In that Federal 
Register notice, the Corps also announced the suspension of NWP 29 for 
activities that result in the loss of greater than \1/4\ acre of non-
tidal waters of the United States. As a result of the Corps review of 
the comments received in response to the July 1, 1998, Federal Register 
notice, NWP 29 has been modified to reduce the acreage limit to \1/4\ 
acre. In response to the court order and the modification of NWP 29, 
the Corps has also issued a new environmental assessment (EA) for NWP 
29. The new EA responds to the court order by addressing the use of NWP 
29 in high value waters of the United States, including the process 
whereby division and district engineers restrict or prohibit the use of 
NWP 29 to authorize discharges of dredged material into high value 
waters. The revised EA also discusses the Corps consideration of lower 
acreage limits for NWP 29 and the Corps decision to reduce the acreage 
threshold to \1/4\ acre. Since the revised EA fulfills the requirements 
of the court order, the Corps is no longer prohibited from receiving 
and processing preconstruction notifications for proposed NWP 29 
activities. PCNs for NWP 29 will be accepted starting September 30, 
1999.

DATES: The modification of NWP 29 is effective on September 30, 1999.

ADDRESSES: Further information can be obtained by writing to: HQUSACE, 
ATTN: CECW-OR, 20 Massachusetts Avenue, NW, Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson or Mr. Sam Collinson 
at (202) 761-0199 or access the Corps of Engineers Regulatory Home Page 
at: http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.

SUPPLEMENTARY INFORMATION: Nationwide Permit (NWP) 29, which authorizes 
discharges of dredged or fill material into non-tidal waters of the 
United States for the construction or expansion of single family 
housing and attendant features, was first issued on July 27, 1995, as 
part of the President's Wetlands Plan to ensure that regulatory 
programs are fair, flexible, and effective. NWP 29 was issued to reduce 
the regulatory burden on small landowners who desire to build or expand 
a single family home on their property. NWP 29 was reissued on December 
13, 1996, with minor modifications, for a period of five years.
    On July 15, 1996, a lawsuit was filed in Alaska District Court by 
several organizations against the Corps, challenging the issuance of 
NWP 29 under Section 404 of the Clean Water Act (CWA), the National 
Environmental Policy Act (NEPA), and the Endangered Species Act (ESA). 
The plaintiffs challenged the issuance of NWP 29 because they believe 
that: (1) the Corps violated the CWA by issuing an NWP for activities 
that result in more than minimal adverse environmental effects; (2) the 
Corps violated the CWA by issuing an NWP for activities that are not 
similar in nature; (3) the Corps violated the procedural requirements 
of the Section 404(b)(1) Guidelines of the CWA; (4) the Corps violated 
the Endangered Species Act (ESA) by failing to consult with the U.S. 
Fish and Wildlife Service (FWS) and the National Marine Fisheries 
Service (NMFS); (5) the Corps violated the Fish and Wildlife 
Coordination Act by failing to consult with the FWS and NMFS; (6) the 
Corps violated the National Environmental Policy Act (NEPA) by failing 
to prepare an Environmental Impact Statement (EIS); and (7) the 
issuance of NWP 29 was arbitrary, capricious, and an abuse of 
discretion. After the Corps reissued NWP 29 on December 13, 1996, a 
supplemental complaint was filed by the plaintiffs challenging the 
reissuance of NWP 29.
    On April 30, 1998, a court order was issued by the United States 
District Court, District of Alaska, remanding the Secretary of the Army 
to consider excluding high value waters from NWP 29, consider lower 
acreage limits for NWP 29, and to set forth those considerations in an 
amended environmental assessment (EA). The court determined that the EA 
for NWP 29 that was issued on December 10, 1996, inadequately addressed 
the Corps consideration of the exclusion of high value waters and 
consideration of lower acreage limits. Pending the Secretary of the 
Army's consideration of these issues, the court enjoined the Corps from 
accepting any preconstruction notifications (PCNs) for NWP 29 after 
June 30, 1998, unless otherwise ordered by the court.
    In the July 1, 1998, Federal Register notice, the Corps proposed to 
reduce the acreage limit of NWP 29 from \1/2\ acre to \1/4\ acre, to 
provide further assurance that NWP 29 would authorize only those single 
family housing activities with minimal adverse effects on the aquatic 
environment, individually or cumulatively. The Corps did not request 
comments on the other terms and conditions of NWP 29.
    In response to the July 1, 1998, Federal Register notice, the Corps 
received more than 80 comments addressing the proposed modification of 
NWP 29. A number of commenters supported the Corps proposal to reduce 
the acreage limit of NWP 29 to \1/4\ acre. Many commenters opposed the 
proposed acreage limit reduction. Several of these commenters indicated 
that the Corps has not provided sufficient supporting evidence 
demonstrating that the lower acreage limit is necessary to ensure that 
only activities with minimal adverse effects on the aquatic environment 
are authorized by NWP 29. One commenter stated that decreasing the 
acreage limit of NWP 29 will result in more landowners seeking 
individual permits to fill more wetlands. This commenter indicated that 
the \1/2\ acre limit encourages minimization of impacts to wetlands 
because landowners have incentive to design their projects to comply 
with the \1/2\ acre limit of NWP, but that a \1/4\ acre limit would 
discourage minimization. This commenter also stated that the proposal 
is contrary to Administration's wetlands program because lowering the 
acreage limit will increase burdens on the regulated public by causing 
more single family housing activities to require individual permits. 
Several commenters objected to NWP 29, suggesting that it should be 
revoked.
    We believe that a \1/4\ acre limit for NWP 29 is necessary to 
ensure that this NWP limits authorization of single family housing 
activities so that there will be no more than minimal adverse effects 
on the aquatic environment. NWP 29 is still an effective means of

[[Page 47176]]

reducing the regulatory burden on the public for single family housing 
activities in non-tidal waters of the United States, while minimizing 
effects on the aquatic environment. It is unnecessary to revoke this 
NWP because the PCN process allows district engineers to review all 
proposed activities and determine if those activities comply with the 
terms and conditions of the NWP and result in minimal adverse effects 
on the aquatic environment. Regional conditioning of NWP 29 provides 
for Corps districts to restrict or prohibit the use of NWP 29 to 
authorize single family housing activities in high value non-tidal 
waters and ensure that the NWP authorizes only activities with minimal 
adverse effects on the aquatic environment. We are proposing an NWP 
condition for all of the NWPs that will address the use of NWPs in 
critical resource waters (see 64 FR 39252 and the discussion at the end 
of this preamble).
    We disagree that reducing the acreage limit of NWP 29 will 
substantially increase the number of individual permits for single 
family housing activities. Most landowners can design their single 
family residences to comply with the lower acreage limit. The data 
collected by the Corps concerning the use of NWP 29 during 1996, 1997, 
and 1998 demonstrates that the average acreage loss resulting from 
activities authorized by NWP 29 is less than \1/4\ acre. (The actual 
data indicates an average of 0.19 acre.) This lower average acreage 
loss is partly due to the PCN process, because district engineers 
review each proposed NWP 29 activity and, where appropriate, require 
additional minimization to ensure that the adverse effects on the 
aquatic environment are minimal. Reducing the acreage limit for NWP 29 
to \1/4\ acre merely reinforces the on-site avoidance and minimization 
process required for NWP activities.
    Several comments suggested other acreage limits for NWP 29. One 
commenter recommended a 3 acre limit for NWP 29. Another commenter said 
that NWP 29 should have the same acreage limit as the proposed 
modification of NWP 40 for agricultural activities and proposed NWP 39 
for residential, commercial, and institutional activities. This 
commenter believes that the regulated public would be less confused if 
the PCN thresholds for the proposed NWPs 40 and 39 are the same. Two 
commenters suggested an acreage limit of \1/10\ acre. One commenter 
suggested an acreage limit of \1/5\ acre, based on the average loss of 
non-tidal wetlands for NWP 29 authorizations cited in the July 1, 1998, 
Federal Register notice.
    A 3 acre limit for single family housing activities is unlikely to 
comply with the minimal adverse effects requirement for general 
permits, including NWPs, nor is it likely to comply with the condition 
that requires the permittee to minimize and avoid impacts on-site (see 
Section 404 Only Condition 4). In addition, a 3 acre limit is 
unnecessary since approximately 90% of residential landowners in the 
United States own parcels that are \1/2\ acre or less in size (see the 
July 27, 1995, Federal Register notice (60 FR 38650--38663) announcing 
the issuance of NWP 29). Single family housing activities resulting in 
the loss of greater than \1/4\ acre of waters of the United States can 
be authorized by individual permits or, if available, regional general 
permits issued by Corps districts. Reducing the acreage limit of NWP 29 
to \1/10\ acre would substantially reduce the utility of this NWP and 
greatly increase the number of individual permits required for many 
single family housing activities that result in minimal adverse effects 
on the aquatic environment. All PCNs for NWP 29 activities will be 
reviewed by district engineers to determine if the proposed work 
complies with the terms and conditions of NWP 29 and results in minimal 
adverse effects on the aquatic environment. In addition, division 
engineers regionally condition NWP 29 to reduce the acreage limit in 
areas where there is greater potential for more than minimal individual 
or cumulative adverse effects on the aquatic environment. Regional 
conditions are adopted to prohibit or restrict the use of NWP 29 in 
certain high value waters.
    A couple of commenters stated that NWP 29 violates Section 404(e) 
of the Clean Water Act. Several commenters opposed the proposed 
modification of NWP 29, stating that the NWP would result in more than 
minimal adverse effects on the aquatic environment. Some commenters 
stated that the proposed \1/4\ acre limit would still result in 
substantial cumulative losses of wetlands from activities authorized by 
NWP 29. A couple of commenters stated that NWP 29 should be applicable 
only in isolated wetlands. These commenters also recommended 
conditioning the NWP to require septic tanks and other sewage disposal 
and collection systems to be located on uplands to the maximum extent 
practicable. One commenter stated that the NWP should be conditioned to 
require the prospective permittee to submit a statement with the PCN 
demonstrating how impacts to wetlands were avoided and minimized to the 
maximum extent practicable. One commenter stated that the provision 
allowing the use of NWP 29 with other NWPs should be removed.
    NWP 29 complies with Section 404(e) of the Clean Water Act because 
it authorizes activities that are similar in nature (i.e., the 
construction or expansion of single family residences and attendant 
features). All activities authorized by NWP 29 require submission of a 
preconstruction notification, which will allow district engineers to 
review all proposed NWP 29 activities on a case-by-case basis to ensure 
that those activities result only in minimal adverse effects on the 
aquatic environment. The PCN process allows district engineers to 
monitor the use of NWP 29 to determine if the authorized activities 
will result in more than minimal cumulative adverse effects on the 
aquatic environment on a watershed basis. We do not agree that it is 
necessary to restrict the use of NWP 29 only to isolated waters or 
condition the NWP to limit sewage disposal systems to uplands. State 
and local regulations usually address the siting of sewage disposal 
systems. In those areas where state and local regulations do not 
address the siting of sewage disposal systems, district engineers can 
consider that issue during review of the PCN. Through regional 
conditions, division engineers can prohibit or restrict the use of NWP 
29 in high value waters identified by district engineers. Division or 
district engineers can also exercise discretionary authority and 
require an individual permit for single family housing activities that 
involve discharges into high value waters, if those discharges will 
result in more than minimal adverse effects on the aquatic environment.
    We do not agree that using NWPs other than NWPs 14, 18, or 26 with 
NWP 29 should be prohibited. For example, bank stabilization activities 
authorized by NWP 13 may be necessary to protect the home site from 
erosion. District engineers will review all NWP 29 activities, 
including those which involve the use of other NWPs to authorize single 
and complete projects, to ensure that the proposed work will result in 
minimal adverse effects on the aquatic environment.
    Paragraph (c) of NWP 29 requires the permittee to take all 
practicable actions to minimize on-site and off-site impacts resulting 
from discharges of dredged material into waters of the United States. 
This condition reinforces the requirements of Section 404 Only 
Condition 4, which states that discharges of dredged or fill material 
into waters of the United States must be

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minimized or avoided to the maximum extent practicable on the project 
site. We do not believe it is necessary to require a statement from the 
prospective permittee to demonstrate that impacts to waters of the 
United States have been avoided on-site to the maximum extent 
practicable for these small projects. District engineers will review 
PCNs for all NWP 29 activities and may require additional minimization 
on a case-by-case basis.
    One commenter recommended that the requirement for vegetated 
buffers should be deleted, because the Corps lacks the regulatory 
authority to impose such a requirement.
    The Corps currently has regulatory authority through the Clean 
Water Act to require vegetated buffers for NWP 29 activities where such 
vegetated buffers, including upland buffers, help prevent degradation 
of water quality and aquatic habitat. The establishment and maintenance 
of wetland or upland vegetated buffers adjacent to open waters, 
streams, or other waters of the United States can be considered 
compensatory mitigation for losses of waters of the United States 
authorized by Corps permits. One of the goals of the Clean Water Act is 
the maintenance and restoration of the chemical, physical, and 
biological integrity of the Nation's waters. Regulatory agencies can 
place conditions on a permit or authorization as long as those 
conditions are related to the activities regulated by that agency. The 
Section 404 activities regulated by the Corps usually cause adverse 
effects on the aquatic environment. To offset these adverse effects, we 
can require measures, such as vegetated upland buffers adjacent to 
streams, that prevent or reduce adverse effects on the aquatic 
environment. Vegetated buffers, including uplands, adjacent to open 
waters of the United States provide many of the same functions and 
values of wetlands, such as flood mitigation, erosion reduction, the 
removal of pollutants and nutrients from water, and support aquatic 
habitat values. Permit applicants must recognize that NWPs are optional 
permits and if the applicant believes that the NWPs are too 
restrictive, then he or she can apply for authorization under the 
individual permit process.
    In response to the court order issued by the United States District 
Court for the District of Alaska and the modification of NWP 29, we 
have issued a modified environmental assessment (EA) for NWP 29. The 
revised EA considers lower acreage limits and the exclusion of high 
value waters. For NWP 29, the Corps has several mechanisms to protect 
high value waters, including wetlands. In high value waters, division 
and district engineers can: (1) prohibit the use of the NWP in those 
waters and require an individual permit or regional general permit; (2) 
decrease the acreage limit for the NWP; (3) add regional conditions to 
the NWP to ensure that the adverse environmental effects are minimal; 
or (4) add special conditions to specific NWP authorizations, such as 
compensatory mitigation requirements, to ensure that the adverse 
effects on the aquatic environment are minimal. NWPs can authorize 
activities in some high value waters as long as the individual and 
cumulative adverse effects on the aquatic environment are minimal.
    Corps districts also monitor cumulative impacts to ensure 
compliance with the CWA. Corps districts generally monitor regulated 
activities on a watershed basis to ensure that the activities 
authorized by NWP 29 and other Corps general permits do not result in 
more than minimal cumulative adverse effects on the aquatic environment 
in a particular watershed. Division engineers will revoke NWP 29 in 
high value aquatic environments or in specific geographic areas (e.g., 
watersheds), if they determine that the use of NWP 29 in these areas 
will result in more than minimal individual and/or cumulative adverse 
environmental effects to the aquatic environment.
    All activities authorized under NWP 29 require preconstruction 
notification to the Corps. The preconstruction notification allows 
district engineers to review each proposed single family housing 
activity to determine if that activity will result in minimal adverse 
environmental effects, and if necessary, add special conditions to the 
NWP authorization to further minimize adverse effects on the aquatic 
environment. If the proposed work will result in more than minimal 
adverse environmental effects on the aquatic environment, then the 
District Engineer will exercise discretionary authority to require an 
individual permit, with the requisite alternatives analysis and public 
interest review.
    The general conditions for the NWPs apply to NWP 29, and can be 
found in the December 13, 1996, issue of the Federal Register (61 FR 
65874-65922). NWP 29 will expire on February 11, 2002, unless otherwise 
modified, suspended, or revoked. The modification of NWP 29 does not 
require new Section 401 water quality certifications or Coastal Zone 
Management Act consistency determinations since the modification 
decreased the acreage limit, which will result in fewer single family 
housing activities that can be authorized by NWP 29.
    As a result of our consideration of comments received in response 
to the October 14, 1998, Federal Register notice, we have proposed in 
the July 21, 1999, Federal Register (64 FR 39252-39371), three new NWP 
general conditions to further protect the aquatic environment. If 
adopted, these new general conditions will become effective when the 
new and modified NWPs that will replace NWP 26 become effective. 
General Condition 25 prohibits the use of several NWPs, including NWP 
29, to authorize discharges of dredged or fill material into designated 
critical resource waters, including wetlands adjacent to those waters. 
For the purposes of General Condition 25, designated critical resource 
waters include NOAA-designated marine sanctuaries, National Estuarine 
Research Reserves, National Wild and Scenic Rivers, critical habitat 
for Federally-listed threatened and endangered species, coral reefs, 
State natural heritage sites, and outstanding natural resource waters 
officially designated by the state in which those waters are located. 
Discharges into National Wild and Scenic Rivers or adjacent wetlands 
may be authorized by NWP if the activity complies with General 
Condition 7. Discharges into designated critical habitat for Federally-
listed threatened or endangered species may be authorized by NWP if the 
activity complies with General Condition 11 and the FWS or NMFS has 
concurred in a determination of compliance with General Condition 11. 
General Condition 26 addresses the use of NWPs to authorize discharges 
in impaired waters of the United States and wetlands adjacent to those 
impaired waters. For the purposes of General Condition 26, impaired 
waters are those waters of the United States that have been identified 
by States or Tribes through the Clean Water Act Section 303(d) process 
as impaired due to nutrients, organic enrichment resulting in low 
dissolved oxygen concentration in the water column, sedimentation and 
siltation, habitat alteration, suspended solids, flow alteration, 
turbidity, or the loss of wetlands. General Condition 26 requires the 
prospective permittee to clearly demonstrate that the activity will not 
further impair the waterbody. General Condition 27 prohibits the use of 
several NWPs, including NWP 29, to authorize permanent, above-grade 
fills in waters of the United States in 100-year floodplains.


[[Page 47178]]


    Dated: August 23, 1999.
Eric R. Potts,
Colonel, U.S. Army, Executive Director of Civil Works.

    Accordingly, Nationwide Permit 29 is modified as follows:
    29. 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 that the activity 
meets all of the following criteria:
    a. The discharge does not cause the loss of more than \1/4\ 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'' 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-site 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 \1/4\ acre for 
the entire subdivision;
    e. An individual may use this NWP only for a single-family home for 
a personal residence;
    f. This NWP may be used only once per parcel;
    g. This NWP may not be used in conjunction with NWP 14, NWP 18, or 
NWP 26, for any parcel; and,
    h. Sufficient vegetated buffers must be maintained adjacent to all 
open water bodies, streams, etc., to preclude water quality degradation 
due to erosion and sedimentation.
    For the purposes of this NWP, the acreage of loss of waters of the 
United States includes the 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. Whenever any other NWP is used in conjunction with this 
NWP, the total acreage of impacts to waters of the United States of all 
NWPs combined, can not exceed \1/4\ acre. This NWP 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 NWP, 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 that 
individual's 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 that individual's spouse) in any form 
of ownership.'' (Sections 10 and 404)

[FR Doc. 99-22285 Filed 8-27-99; 8:45 am]
BILLING CODE 3710-92-P