Proposal to Issue a Nationwide Permit

summary: As a part of our effort to improve the regulatory program, the

Army Corps of Engineers is proposing to issue a new nationwide general

permit (NWP) under Section 404 of the Clean Water Act and Section 10 of

the Rivers & Harbors Act for single-family residential development. The

NWP will provide for effective protection of the aquatic environment

while substantially reducing regulatory burdens on landowners.

In August 1993, the Clinton Administration announced a

comprehensive package of improvements to the Federal wetlands program

that identified measures to enhance the fairness, flexibility, and

effectiveness of the wetlands program. A major focus of the

Administration's Wetland Plan is intended to address the concerns of

landowners by streamlining Section 10 and 404 permitting programs where

possible while maintaining needed environmental protection.

The public is invited to provide comments on this proposal and is

being given the opportunity to request a public hearing on the proposed

NWP.

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

addresses: Comments should be submitted in writing to: Office of the

Chief of Engineers, ATTN: CECW-OR, 20 Massachusetts Avenue NW,

Washington, DC 20314-1000. Comments will be available for examination

at the Office of the Chief of Engineers, Room 6225, Pulaski Building,

20 Massachusetts Avenue NW, Washington, DC 20314-1000.

for further information contact: Mr. Peter Kube or Mr. Sam Collinson,

Regulatory Branch, Office of the Chief of Engineers at (202) 272-0817.

SUPPLEMENTARY INFORMATION:

Background

The White House Office on Environmental Policy announced the

President's Wetlands Plan on August 24, 1993. The plan set forth a

comprehensive package of improvements to the Federal wetlands

protection programs. A major goal of the plan is to ensure that

programs are fair, flexible, and effective. To achieve this goal, the

Corps regulatory program must continue to provide effective protection

of wetlands while conveying to the public a clear understanding of

regulatory requirements. In its implementation, the regulatory program

must be administratively efficient, flexible yet predictable, and avoid

unnecessary impacts to private property and the regulated public.

We are proposing this new NWP to support the objectives in the

President's Wetlands Plan. The new NWP would authorize activities in

wetlands related to the construction or expansion of a single-family

home. This would allow, for example, a couple to build a retirement

home on wetlands property they own without applying for an individual

Section 404 permit. The NWP includes limits and conditions to minimize

impacts on the aquatic environment.

There is a perception by many in the country that the regulatory

process has become too burdensome on small landowners simply desiring

to build a home. This nationwide general permit has been developed to

reduce the regulatory burden on small landowners proposing to build or

expand a single-family home while simultaneously maintaining

environmental safeguards. It seeks to strike this balance by allowing a

landowner to build or expand a home with minimal regulatory oversight

while protecting the aquatic resource through specific limitations. If

finalized, the new NWP will allow the Corps to focus better its

resources on areas that have the potential for greater environmental

impacts. Further, as the Corps realizes workload savings resulting from

this NWP it should be able to improve service to other sectors of the

regulated public (e.g., large developments).

Proposed NWP for Single Family Housing

In order to address the above concerns, the Corps proposes to issue

the following NWP.

Discharges of dredged or fill material into non-tidal wetlands for

the construction or expansion of a single-family home and attendant

features, such as a garage, driveway, storage shed, and/or septic

field, provided:

a. The discharge into waters of the United States does not cause

the loss of more than \1/2\ acre;

b. The permittee notifies the District Engineer in accordance with

the ``Notification'' general condition (as modified for this NWP only);

c. The permittee has taken necessary actions to minimize the on-

site and off-site impacts of the discharge. For example, the location

of the home may need to be adjusted on-site to avoid flooding of

adjacent property owners;

d. The discharge is part of a single and complete project and that

for any subdivision created after March 6, 1995 the permittee notifies

the District Engineer of any discharge which would cause the aggregate

total loss of waters of the United States for the entire subdivision to

exceed \1/2\ acre; and

e. an individual may use this nationwide permit only once.

For the purposes of this nationwide permit, the acreage of loss of

waters of the United States includes the filled area plus any other

waters of the United States that are adversely affected by flooding,

excavation, or drainage as a result of the project. (Sections 10 & 404)

The above NWP is being proposed under the authority of Section

404(e) of the Clean Water Act (33 U.S.C. 1344) and Section 10 of the

Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.).

Discussion

We are requesting comments on the following specific issues:

MAXIMUM ACREAGE: General permits are designed to authorize

categories of activities in waters of the United States that will have

minimal individual and cumulative impacts. This NWP would allow

discharges affecting up to \1/2\ acre of non-tidal waters and wetlands

for the construction or expansion of a single-family home and attendant

features, such as the construction of a driveway, garage, and/or septic

field. For purposes of this NWP, impacts include the filled area plus

any wetlands adversely affected by flooding, excavation, or drainage.

The actual loss of wetlands that would be authorized under the NWP

would be limited to the minimum necessary for construction of the house

and attendant features. (See discussion below on mitigation.) The NWP

may not be used in combination with other general permits if the

cumulative impacts from all activities are more than minimal.

We believe that \1/2\ acre is sufficient for the vast majority of

single-family homes. However, we are interested in receiving comments

regarding the maximum acreage of impact to be allowed under this

authorization. Should the maximum acreage be reduced to \1/8\ or \1/4\

acre or should the maximum acreage of impact be increased to \3/4\ or 1

acre? The maximum acreage allowed under this NWP will be dependant on

how the term ``attendant features'' is defined. We are interested in

comments regarding a definition of [[Page 15441]] the term ``attendant

features''. Should the authorization be limited to fill for foundations

and building pads or should fill also be allowed for any attendant

amenity as currently proposed, such as a yard, tennis courts, and/or

swimming pool under this NWP?

2. PRE-CONSTRUCTION NOTIFICATION: Individuals proposing to use the

NWP will have to first notify the Corps in accordance with procedures

of General Condition #13, Notification, as modified below. We propose

to streamline the pre-construction notification (PCN) procedure by not

requiring the Corps to coordinate with the Federal resource agencies,

nor requiring the applicant to submit advance notice to the Fish &

Wildlife Service or the State Historic Preservation Officer.

Specifically, the Notification condition would be modified for this NWP

as follows:

13. Notification. (a) The prospective permittee must notify the

District Engineer with a Pre-construction Notification (PCN) as early

as possible and shall not begin the activity authorized by this NWP:

(1) Until notified by the District Engineer that the activity may

proceed under the NWP with any special conditions imposed by the

District or Division Engineer; or

(2) If notified by the District or Division Engineer that an

individual permit is required; or

(3) Unless 30 days have passed from the District Engineer's receipt

of the notification and the prospective permittee has not received

notice from the District or Division Engineer. Subsequently, the

permittee's right to proceed under the NWP may be modified, suspended,

or revoked only in accordance with the procedure set forth in 33 CFR

330.5(d)(2).

(b) The notification must be in writing and include the following

information:

(1) Name, address and telephone number of the prospective

permittee;

(2) Location of the proposed project;

(3) Brief description of the proposed project; the project's

purpose; direct and indirect adverse environmental effects the project

would cause; any other NWP(s), regional general permit(s) or individual

permit(s) used or intended to be used to authorize any part of the

proposed project or any related activity.

(c) The standard individual permit application form (Form ENG 4345)

may be used as the notification but must clearly indicate that it is a

PCN and must include all of the information required in (b) (1)-(3) of

this General Condition.

(d) In reviewing an activity under the notification procedure, the

District Engineer will determine whether the activity will result in

more than minimal individual or cumulative adverse environmental

effects or will be contrary to the public interest. The District

Engineer will consider any optional mitigation the applicant has

included in the proposal in determining whether the net adverse

environmental effects of the proposed work are minimal. If the District

Engineer determines that the activity complies with the terms and

conditions of the NWP and that the adverse effects are minimal, he will

notify the permittee and include any agreed upon special conditions

and/or mitigation. If the District Engineer determines that the adverse

effects of the proposed work are more than minimal, then he will notify

the applicant that the project does not qualify for authorization under

the NWP and instruct the applicant on the procedures to seek

authorization under an individual permit.

(e) Wetlands Delineations: When necessary, wetland delineations

must be prepared in accordance with the current method required by the

Corps. The permittee may ask the Corps to delineate the wetland.

However, there may be some delay if the Corps does the delineation and

the 30-day period will not start until the wetland delineation has been

completed.

We are requesting comments on the PCN. Should the requirement for

Corps and applicant coordination of project impacts with the resource

agencies be retained? Is the PCN to the Corps needed in all cases?

Should there be a size limit such as \1/10\, \1/8\, \1/4\ acre where no

PCN is required?

3. MITIGATION: No compensatory wetland mitigation is required under

this authorization. However, the landowner must take reasonable on-site

measures to minimize adverse impacts to aquatic resources. For example,

the location of a home may need to be adjusted on-site to avoid

flooding of adjacent property. Further, on-site minimization steps must

be taken to minimize the loss of waters of the United States. For

example, if a landowner currently owns 20 acres of land, 15 acres of

which is non-wetland, we do not believe it is unreasonable to require

the use of the non-wetland portion of the property where practicable.

We are requesting comments on our proposal to require no

compensatory mitigation for this NWP. Should we require mitigation for

all wetland losses as a result of this permit or should we require it

if the fill exceeds a certain acreage, such as \1/4\ acre?

Alternatively, should compensatory mitigation only be required for

certain attendant features such as the fill necessary for a yard?

4. SUBDIVISIONS: In order to ensure that only minimal individual

and cumulative impacts occur, this authorization is not intended to

allow individual landowners to impact more than a total of \1/2\ acre

of waters of the United States. Discharges authorized by this NWP must

be part of a single and complete project and individuals may use this

NWP only once for all property owned now and in the future. For any

real estate subdivision legally created or subdivided before March 6,

1995, the owner of each legally plated lot site may use this NWP.

Should we allow individuals to use this nationwide permit more than

once (e.g. twice, for a primary residence and a second home) or should

its use by individuals not be limited.

For any real estate subdivision created or subdivided after March

6, 1995, discharges authorized under this NWP may not exceed an

aggregate total loss of waters of the United States of \1/2\ acre for

the entire subdivision. For purposes of this NWP, the term ``real

estate subdivision'' shall be interpreted to include circumstances

where a landowner or developer divides a tract of land into smaller

parcels for the purpose of selling, conveying, transferring, leasing,

or developing said parcels. This would include the entire area of a

residential, commercial or other real estate subdivision, including all

parcels and parts thereof.

March 6, 1995 is being proposed because that is the date this NWP

was announced to the public. Should the March 6, 1995 date be changed

to be consistent with the NWP #26 subdivision clause of October 5,

1984, or some other date? Also, are there other options, rather than

the Subdivision provision, that would prevent developers from dividing

and selling building sites, in the future, to circumvent the limits of

this nationwide permit?

Nationwide Permit Conditions

This proposed NWP will be subject to the conditions that apply to

all nationwide permits. These conditions are found at 33 CFR Part 330

Appendix A(C). As noted above, condition #13 has been modified for

purposes of this NWP only.

Regional Conditions

Concurrent with this Federal Register notice, District Engineers

are issuing local public notices. In addition to the NWP conditions

being proposed by the Chief of Engineers, the Division and District

Engineers may propose regional [[Page 15442]] conditions or propose

revocation of NWP authorization for all or portions of this NWP.

Regional conditions may also be required by state Section 401 water

quality certification or for state coastal zone consistency. Comments

on the Federal Register notice that address national concerns relating

to the proposed NWP and its conditions should be sent to the U.S. Army

Corps of Engineers, CECW-OR, 20 Massachusetts Avenue N.W., Washington,

D.C 20314-1000. Comments on regional issues and regional conditions

should be sent to the appropriate District Engineer as indicated below.

ALABAMA

Mobile District Engineer, ATTN: CESAM-OP-S, P.O. Box 2288, Mobile,

AL 36628-0001

ALASKA

Alaska District Engineer, ATTN: CENPA-CO-R, P.O. Box 898,

Anchorage, AK 99506-0898

ARIZONA

Los Angeles District Engineer, ATTN: CESPL-CO-R, P.O. Box 2711, Los

Angeles, CA 90053-2325

ARKANSAS

Little Rock District Engineer, ATTN: CESWL-CO-P, P.O. Box 867,

Little Rock, AR 72203-0867

CALIFORNIA

Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,

Sacramento, CA 95814-4794

COLORADO

Albuquerque District Engineer, ATTN: CESWA-CO-R, P.O. Box 1580,

Albuquerque, NM 87103-1580

CONNECTICUT

New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,

Waltham, MA 02254-9149

DELAWARE

Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker

Building, 100 Penn Square, East Philadelphia, PA 19107-3390

FLORIDA

Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970,

Jacksonville, FL 32232-0019

GEORGIA

Savannah District Engineer, ATTN: CESAS-OP-F, P.O. Box 889,

Savannah, GA 31402-0889

HAWAII

Honolulu District Engineer, ATTN: CEPOD-CO-O, Building 230, Fort

Shafter, Honolulu, HI 96858-5440

IDAHO

Walla Walla District Engineer, ATTN: CENPW-OP-RF, Building 602,

City-County Airport, Walla Walla, WA 99362-9265

ILLINOIS

Rock Island District Engineer, ATTN: CENCR-OD-S, Clock Tower

Building, P.O. Box 2004, Rock Island, IL 61201-2004

INDIANA

Louisville District Engineer, ATTN: CEORL-OR-F, P.O. Box 59,

Louisville, KY 40201-0059

IOWA

Rock Island District Engineer, ATTN: CENCR-OD-S, Clock Tower

Building, Rock Island, IL 61201-2004

KANSAS

Kansas City District Engineer, ATTN: CEMRK-OD-P, 700 Federal

Building, 601 E. 12th Street, Kansas City, MO 64106-2896

KENTUCKY

Louisville District Engineer, ATTN: CEORL-OR-F, P.O. Box 59,

Louisville, KY 40201-0059

LOUISIANA

New Orleans District Engineer, ATTN: CELMN-OD-S, P.O. Box 60267,

New Orleans, LA 70160-0267

MAINE

New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,

Waltham, MA 02254-9149

MARYLAND

Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,

Baltimore, MD 21203-1715

MASSACHUSETTS

New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,

Waltham, MA 02254-9149

MICHIGAN

Detroit District Engineer, ATTN: CENCE-CO-L, P.O. Box 1027,

Detroit, MI 48231-1027

MINNESOTA

St. Paul District Engineer, ATTN: CENCS-CO-R, 190 Fifth Street,

East, St. Paul, MN 55101-1638

MISSISSIPPI

Vicksburg District Engineer, ATTN: CELMV-CO-O, P.O. Box 80,

Vicksburg, MS 39180-0080

MISSOURI

Kansas City District Engineer, ATTN: CEMRK-OD-P, 700 Federal

Building, 601 E. 12th Street, Kansas City, MO 64106-2896

MONTANA

Omaha District Engineer, ATTN: CEMRO-OP-R, P.O. Box 5, Omaha, NE

68101-0005

NEBRASKA

Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street,

Omaha, NE 68101-4978

NEVADA

Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,

Sacramento, CA 95814-2922

NEW HAMPSHIRE

New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,

Waltham, MA 02254-9149

NEW JERSEY

Philadelphia District Engineer, ATTN: CENAP-OP-R, Wanamaker

Building, 100 Penn Square East, Philadelphia, PA 19106-2991

NEW MEXICO

Albuquerque District Engineer, ATTN: CESWA-CO-R, P.O. Box 1580,

Albuquerque, NM 87103-1580

NEW YORK

New York District Engineer, ATTN: CENAN-OP-R, Jacob K. Javits

Federal Building, New York, NY 10278-0090

NORTH CAROLINA

Wilmington District Engineer, ATTN: CESAW-CO-E, P.O. Box 1890,

Wilmington, NC 28402-1890

NORTH DAKOTA

Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street,

Omaha, NE 68102-4978

OHIO

Huntington District Engineer, ATTN: CEORH-OR-F, 502 8th Street,

Huntington, WV 25701-2070

OKLAHOMA

Tulsa District Engineer, ATTN: CESWT-OD-RF, 1645 South 101 East

Avenue, Tulsa, OK 74128-4629

OREGON

Portland District Engineer, ATTN: CENPP-PL-R, P.O. Box 2946,

Portland, OR 97208-2946

PENNSYLVANIA

Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,

Baltimore, MD 21203-1715

RHODE ISLAND

New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,

Waltham, MA 02254-9149

SOUTH CAROLINA

Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919,

Charleston, SC 29402-0919

SOUTH DAKOTA

Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street,

Omaha, NE 68102-4978

TENNESSEE

Nashville District Engineer, ATTN: CEORN-OR-F, P.O. Box 1070,

Nashville, TN 37202-1070

TEXAS

Ft. Worth District Engineer, ATTN: CESWF-OD-O, P.O. Box 17300, Ft.

Worth, TX 76102-0300

UTAH

Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street, CA

95814-4794

VERMONT

New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo

[[Page 15443]] Road, Waltham, MA 02254-9149

VIRGINIA

Norfolk District Engineer, ATTN: CENAO-OP-P, 803 Front Street,

Norfolk, VA 23510-1096

WASHINGTON

Seattle District Engineer, ATTN: CENPS-OP-RG, P.O. Box 3755,

Seattle, WA 98124-2255

WEST VIRGINIA

Huntington District Engineer, ATTN: CEORH-OR-F, 502 8th Street,

Huntington, WV 25701-2070

WISCONSIN

St. Paul District Engineer, ATTN: CENCS-CO-R, 190 Fifth Street,

East, St. Paul, MN 55101-1638

WYOMING

Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street,

NE 68102-4978

DISTRICT OF COLUMBIA

Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,

Baltimore, MD 21203-1715

PACIFIC TERRITORIES

Honolulu District Engineer, ATTN: CEPOD-CO-O, Building 230, Fort

Shafter, Honolulu, HI 96858-5440

PUERTO RICO AND VIRGIN ISLANDS

Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970,

Jacksonville, FL 32232-0019

State Certification of Nationwide Permits

Section 401 of the Clean Water Act: This Federal Register notice of

this NWP serves as the Corps application to the states or EPA, where

appropriate, for 401 water quality certification of the activities

authorized by this NWP. The states and EPA, where appropriate, are

requested to issue, deny, or waive certification pursuant to 33 CFR

330.4(c) for this NWP.

Section 307 of the Coastal Zone Management Act: This Federal

Register notice serves as the Corps determination that the activities

authorized by this NWP are consistent with States' coastal zone

management programs, where applicable. This determination is contingent

upon the addition of State CZM conditions and/or regional conditions or

the issuance by the state of an individual consistency concurrence,

where necessary. The states are requested to agree or disagree with

this consistency determination pursuant to 33 CFR 330.4(d) for this

NWP.

Environmental Documentation

We have made a preliminary determination that this action does not

constitute a major Federal action significantly affecting the quality

of the human environment. Preliminary environmental documentation has

been prepared for the proposed nationwide permit. This documentation

includes a preliminary environmental assessment and a preliminary

Section 404(b)(1) Guidelines compliance review. Copies of these

documents are available for inspection at the office of the Chief of

Engineers and at each Corps District office. Based on these documents

the Corps has provisionally determined that the proposed NWP complies

with the requirements for issuance under general permit authority.

Dated: March 15, 1995.

Stanley G. Genega,

Major General, USA, Director of Civil Works.

[FR Doc. 95-7206 Filed 3-21-95; 9:25 am]

BILLING CODE 3710-92-M