[Federal Register Volume 60, Number 56 (Thursday, March 23, 1995)]
[Notices]
[Pages 15440-15443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7206]
[[Page 15439]]
_______________________________________________________________________
Part VII
Department of Defense
_______________________________________________________________________
Corps of Engineers, Department of the Army
_______________________________________________________________________
Proposal to Issue a Nationwide Permit; Notice
Federal Register / Vol. 60, No. 56 / Thursday, March 23, 1995 /
Notices
[[Page 15440]]
DEPARTMENT OF DEFENSE
Department of the Army
Corps of Engineers
Proposal to Issue a Nationwide Permit
agency: U.S. Army Corps of Engineers, DoD.
action: Notice.
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summary: As a part of our effort to improve the regulatory program, the
Army Corps of Engineers is proposing to issue a new nationwide general
permit (NWP) under Section 404 of the Clean Water Act and Section 10 of
the Rivers & Harbors Act for single-family residential development. The
NWP will provide for effective protection of the aquatic environment
while substantially reducing regulatory burdens on landowners.
In August 1993, the Clinton Administration announced a
comprehensive package of improvements to the Federal wetlands program
that identified measures to enhance the fairness, flexibility, and
effectiveness of the wetlands program. A major focus of the
Administration's Wetland Plan is intended to address the concerns of
landowners by streamlining Section 10 and 404 permitting programs where
possible while maintaining needed environmental protection.
The public is invited to provide comments on this proposal and is
being given the opportunity to request a public hearing on the proposed
NWP.
dates: Comments must be received by May 8, 1995.
addresses: Comments should be submitted in writing to: Office of the
Chief of Engineers, ATTN: CECW-OR, 20 Massachusetts Avenue NW,
Washington, DC 20314-1000. Comments will be available for examination
at the Office of the Chief of Engineers, Room 6225, Pulaski Building,
20 Massachusetts Avenue NW, Washington, DC 20314-1000.
for further information contact: Mr. Peter Kube or Mr. Sam Collinson,
Regulatory Branch, Office of the Chief of Engineers at (202) 272-0817.
SUPPLEMENTARY INFORMATION:
Background
The White House Office on Environmental Policy announced the
President's Wetlands Plan on August 24, 1993. The plan set forth a
comprehensive package of improvements to the Federal wetlands
protection programs. A major goal of the plan is to ensure that
programs are fair, flexible, and effective. To achieve this goal, the
Corps regulatory program must continue to provide effective protection
of wetlands while conveying to the public a clear understanding of
regulatory requirements. In its implementation, the regulatory program
must be administratively efficient, flexible yet predictable, and avoid
unnecessary impacts to private property and the regulated public.
We are proposing this new NWP to support the objectives in the
President's Wetlands Plan. The new NWP would authorize activities in
wetlands related to the construction or expansion of a single-family
home. This would allow, for example, a couple to build a retirement
home on wetlands property they own without applying for an individual
Section 404 permit. The NWP includes limits and conditions to minimize
impacts on the aquatic environment.
There is a perception by many in the country that the regulatory
process has become too burdensome on small landowners simply desiring
to build a home. This nationwide general permit has been developed to
reduce the regulatory burden on small landowners proposing to build or
expand a single-family home while simultaneously maintaining
environmental safeguards. It seeks to strike this balance by allowing a
landowner to build or expand a home with minimal regulatory oversight
while protecting the aquatic resource through specific limitations. If
finalized, the new NWP will allow the Corps to focus better its
resources on areas that have the potential for greater environmental
impacts. Further, as the Corps realizes workload savings resulting from
this NWP it should be able to improve service to other sectors of the
regulated public (e.g., large developments).
Proposed NWP for Single Family Housing
In order to address the above concerns, the Corps proposes to issue
the following NWP.
Discharges of dredged or fill material into non-tidal wetlands for
the construction or expansion of a single-family home and attendant
features, such as a garage, driveway, storage shed, and/or septic
field, provided:
a. The discharge into waters of the United States does not cause
the loss of more than \1/2\ acre;
b. The permittee notifies the District Engineer in accordance with
the ``Notification'' general condition (as modified for this NWP only);
c. The permittee has taken necessary actions to minimize the on-
site and off-site impacts of the discharge. For example, the location
of the home may need to be adjusted on-site to avoid flooding of
adjacent property owners;
d. The discharge is part of a single and complete project and that
for any subdivision created after March 6, 1995 the permittee notifies
the District Engineer of any discharge which would cause the aggregate
total loss of waters of the United States for the entire subdivision to
exceed \1/2\ acre; and
e. an individual may use this nationwide permit only once.
For the purposes of this nationwide permit, the acreage of loss of
waters of the United States includes the filled area plus any other
waters of the United States that are adversely affected by flooding,
excavation, or drainage as a result of the project. (Sections 10 & 404)
The above NWP is being proposed under the authority of Section
404(e) of the Clean Water Act (33 U.S.C. 1344) and Section 10 of the
Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.).
Discussion
We are requesting comments on the following specific issues:
MAXIMUM ACREAGE: General permits are designed to authorize
categories of activities in waters of the United States that will have
minimal individual and cumulative impacts. This NWP would allow
discharges affecting up to \1/2\ acre of non-tidal waters and wetlands
for the construction or expansion of a single-family home and attendant
features, such as the construction of a driveway, garage, and/or septic
field. For purposes of this NWP, impacts include the filled area plus
any wetlands adversely affected by flooding, excavation, or drainage.
The actual loss of wetlands that would be authorized under the NWP
would be limited to the minimum necessary for construction of the house
and attendant features. (See discussion below on mitigation.) The NWP
may not be used in combination with other general permits if the
cumulative impacts from all activities are more than minimal.
We believe that \1/2\ acre is sufficient for the vast majority of
single-family homes. However, we are interested in receiving comments
regarding the maximum acreage of impact to be allowed under this
authorization. Should the maximum acreage be reduced to \1/8\ or \1/4\
acre or should the maximum acreage of impact be increased to \3/4\ or 1
acre? The maximum acreage allowed under this NWP will be dependant on
how the term ``attendant features'' is defined. We are interested in
comments regarding a definition of [[Page 15441]] the term ``attendant
features''. Should the authorization be limited to fill for foundations
and building pads or should fill also be allowed for any attendant
amenity as currently proposed, such as a yard, tennis courts, and/or
swimming pool under this NWP?
2. PRE-CONSTRUCTION NOTIFICATION: Individuals proposing to use the
NWP will have to first notify the Corps in accordance with procedures
of General Condition #13, Notification, as modified below. We propose
to streamline the pre-construction notification (PCN) procedure by not
requiring the Corps to coordinate with the Federal resource agencies,
nor requiring the applicant to submit advance notice to the Fish &
Wildlife Service or the State Historic Preservation Officer.
Specifically, the Notification condition would be modified for this NWP
as follows:
13. Notification. (a) The prospective permittee must notify the
District Engineer with a Pre-construction Notification (PCN) as early
as possible and shall not begin the activity authorized by this NWP:
(1) Until notified by the District Engineer that the activity may
proceed under the NWP with any special conditions imposed by the
District or Division Engineer; or
(2) If notified by the District or Division Engineer that an
individual permit is required; or
(3) Unless 30 days have passed from the District Engineer's receipt
of the notification and the prospective permittee has not received
notice from the District or Division Engineer. Subsequently, the
permittee's right to proceed under the NWP may be modified, suspended,
or revoked only in accordance with the procedure set forth in 33 CFR
330.5(d)(2).
(b) The notification must be in writing and include the following
information:
(1) Name, address and telephone number of the prospective
permittee;
(2) Location of the proposed project;
(3) Brief description of the proposed project; the project's
purpose; direct and indirect adverse environmental effects the project
would cause; any other NWP(s), regional general permit(s) or individual
permit(s) used or intended to be used to authorize any part of the
proposed project or any related activity.
(c) The standard individual permit application form (Form ENG 4345)
may be used as the notification but must clearly indicate that it is a
PCN and must include all of the information required in (b) (1)-(3) of
this General Condition.
(d) In reviewing an activity under the notification procedure, the
District Engineer will determine whether the activity will result in
more than minimal individual or cumulative adverse environmental
effects or will be contrary to the public interest. The District
Engineer will consider any optional mitigation the applicant has
included in the proposal in determining whether the net adverse
environmental effects of the proposed work are minimal. If the District
Engineer determines that the activity complies with the terms and
conditions of the NWP and that the adverse effects are minimal, he will
notify the permittee and include any agreed upon special conditions
and/or mitigation. If the District Engineer determines that the adverse
effects of the proposed work are more than minimal, then he will notify
the applicant that the project does not qualify for authorization under
the NWP and instruct the applicant on the procedures to seek
authorization under an individual permit.
(e) Wetlands Delineations: When necessary, wetland delineations
must be prepared in accordance with the current method required by the
Corps. The permittee may ask the Corps to delineate the wetland.
However, there may be some delay if the Corps does the delineation and
the 30-day period will not start until the wetland delineation has been
completed.
We are requesting comments on the PCN. Should the requirement for
Corps and applicant coordination of project impacts with the resource
agencies be retained? Is the PCN to the Corps needed in all cases?
Should there be a size limit such as \1/10\, \1/8\, \1/4\ acre where no
PCN is required?
3. MITIGATION: No compensatory wetland mitigation is required under
this authorization. However, the landowner must take reasonable on-site
measures to minimize adverse impacts to aquatic resources. For example,
the location of a home may need to be adjusted on-site to avoid
flooding of adjacent property. Further, on-site minimization steps must
be taken to minimize the loss of waters of the United States. For
example, if a landowner currently owns 20 acres of land, 15 acres of
which is non-wetland, we do not believe it is unreasonable to require
the use of the non-wetland portion of the property where practicable.
We are requesting comments on our proposal to require no
compensatory mitigation for this NWP. Should we require mitigation for
all wetland losses as a result of this permit or should we require it
if the fill exceeds a certain acreage, such as \1/4\ acre?
Alternatively, should compensatory mitigation only be required for
certain attendant features such as the fill necessary for a yard?
4. SUBDIVISIONS: In order to ensure that only minimal individual
and cumulative impacts occur, this authorization is not intended to
allow individual landowners to impact more than a total of \1/2\ acre
of waters of the United States. Discharges authorized by this NWP must
be part of a single and complete project and individuals may use this
NWP only once for all property owned now and in the future. For any
real estate subdivision legally created or subdivided before March 6,
1995, the owner of each legally plated lot site may use this NWP.
Should we allow individuals to use this nationwide permit more than
once (e.g. twice, for a primary residence and a second home) or should
its use by individuals not be limited.
For any real estate subdivision created or subdivided after March
6, 1995, discharges authorized under this NWP may not exceed an
aggregate total loss of waters of the United States of \1/2\ acre for
the entire subdivision. For purposes of this NWP, the term ``real
estate subdivision'' shall be interpreted to include circumstances
where a landowner or developer divides a tract of land into smaller
parcels for the purpose of selling, conveying, transferring, leasing,
or developing said parcels. This would include the entire area of a
residential, commercial or other real estate subdivision, including all
parcels and parts thereof.
March 6, 1995 is being proposed because that is the date this NWP
was announced to the public. Should the March 6, 1995 date be changed
to be consistent with the NWP #26 subdivision clause of October 5,
1984, or some other date? Also, are there other options, rather than
the Subdivision provision, that would prevent developers from dividing
and selling building sites, in the future, to circumvent the limits of
this nationwide permit?
Nationwide Permit Conditions
This proposed NWP will be subject to the conditions that apply to
all nationwide permits. These conditions are found at 33 CFR Part 330
Appendix A(C). As noted above, condition #13 has been modified for
purposes of this NWP only.
Regional Conditions
Concurrent with this Federal Register notice, District Engineers
are issuing local public notices. In addition to the NWP conditions
being proposed by the Chief of Engineers, the Division and District
Engineers may propose regional [[Page 15442]] conditions or propose
revocation of NWP authorization for all or portions of this NWP.
Regional conditions may also be required by state Section 401 water
quality certification or for state coastal zone consistency. Comments
on the Federal Register notice that address national concerns relating
to the proposed NWP and its conditions should be sent to the U.S. Army
Corps of Engineers, CECW-OR, 20 Massachusetts Avenue N.W., Washington,
D.C 20314-1000. Comments on regional issues and regional conditions
should be sent to the appropriate District Engineer as indicated below.
ALABAMA
Mobile District Engineer, ATTN: CESAM-OP-S, P.O. Box 2288, Mobile,
AL 36628-0001
ALASKA
Alaska District Engineer, ATTN: CENPA-CO-R, P.O. Box 898,
Anchorage, AK 99506-0898
ARIZONA
Los Angeles District Engineer, ATTN: CESPL-CO-R, P.O. Box 2711, Los
Angeles, CA 90053-2325
ARKANSAS
Little Rock District Engineer, ATTN: CESWL-CO-P, P.O. Box 867,
Little Rock, AR 72203-0867
CALIFORNIA
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,
Sacramento, CA 95814-4794
COLORADO
Albuquerque District Engineer, ATTN: CESWA-CO-R, P.O. Box 1580,
Albuquerque, NM 87103-1580
CONNECTICUT
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,
Waltham, MA 02254-9149
DELAWARE
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker
Building, 100 Penn Square, East Philadelphia, PA 19107-3390
FLORIDA
Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970,
Jacksonville, FL 32232-0019
GEORGIA
Savannah District Engineer, ATTN: CESAS-OP-F, P.O. Box 889,
Savannah, GA 31402-0889
HAWAII
Honolulu District Engineer, ATTN: CEPOD-CO-O, Building 230, Fort
Shafter, Honolulu, HI 96858-5440
IDAHO
Walla Walla District Engineer, ATTN: CENPW-OP-RF, Building 602,
City-County Airport, Walla Walla, WA 99362-9265
ILLINOIS
Rock Island District Engineer, ATTN: CENCR-OD-S, Clock Tower
Building, P.O. Box 2004, Rock Island, IL 61201-2004
INDIANA
Louisville District Engineer, ATTN: CEORL-OR-F, P.O. Box 59,
Louisville, KY 40201-0059
IOWA
Rock Island District Engineer, ATTN: CENCR-OD-S, Clock Tower
Building, Rock Island, IL 61201-2004
KANSAS
Kansas City District Engineer, ATTN: CEMRK-OD-P, 700 Federal
Building, 601 E. 12th Street, Kansas City, MO 64106-2896
KENTUCKY
Louisville District Engineer, ATTN: CEORL-OR-F, P.O. Box 59,
Louisville, KY 40201-0059
LOUISIANA
New Orleans District Engineer, ATTN: CELMN-OD-S, P.O. Box 60267,
New Orleans, LA 70160-0267
MAINE
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,
Waltham, MA 02254-9149
MARYLAND
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
MASSACHUSETTS
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,
Waltham, MA 02254-9149
MICHIGAN
Detroit District Engineer, ATTN: CENCE-CO-L, P.O. Box 1027,
Detroit, MI 48231-1027
MINNESOTA
St. Paul District Engineer, ATTN: CENCS-CO-R, 190 Fifth Street,
East, St. Paul, MN 55101-1638
MISSISSIPPI
Vicksburg District Engineer, ATTN: CELMV-CO-O, P.O. Box 80,
Vicksburg, MS 39180-0080
MISSOURI
Kansas City District Engineer, ATTN: CEMRK-OD-P, 700 Federal
Building, 601 E. 12th Street, Kansas City, MO 64106-2896
MONTANA
Omaha District Engineer, ATTN: CEMRO-OP-R, P.O. Box 5, Omaha, NE
68101-0005
NEBRASKA
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street,
Omaha, NE 68101-4978
NEVADA
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,
Sacramento, CA 95814-2922
NEW HAMPSHIRE
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,
Waltham, MA 02254-9149
NEW JERSEY
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wanamaker
Building, 100 Penn Square East, Philadelphia, PA 19106-2991
NEW MEXICO
Albuquerque District Engineer, ATTN: CESWA-CO-R, P.O. Box 1580,
Albuquerque, NM 87103-1580
NEW YORK
New York District Engineer, ATTN: CENAN-OP-R, Jacob K. Javits
Federal Building, New York, NY 10278-0090
NORTH CAROLINA
Wilmington District Engineer, ATTN: CESAW-CO-E, P.O. Box 1890,
Wilmington, NC 28402-1890
NORTH DAKOTA
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street,
Omaha, NE 68102-4978
OHIO
Huntington District Engineer, ATTN: CEORH-OR-F, 502 8th Street,
Huntington, WV 25701-2070
OKLAHOMA
Tulsa District Engineer, ATTN: CESWT-OD-RF, 1645 South 101 East
Avenue, Tulsa, OK 74128-4629
OREGON
Portland District Engineer, ATTN: CENPP-PL-R, P.O. Box 2946,
Portland, OR 97208-2946
PENNSYLVANIA
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
RHODE ISLAND
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,
Waltham, MA 02254-9149
SOUTH CAROLINA
Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919,
Charleston, SC 29402-0919
SOUTH DAKOTA
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street,
Omaha, NE 68102-4978
TENNESSEE
Nashville District Engineer, ATTN: CEORN-OR-F, P.O. Box 1070,
Nashville, TN 37202-1070
TEXAS
Ft. Worth District Engineer, ATTN: CESWF-OD-O, P.O. Box 17300, Ft.
Worth, TX 76102-0300
UTAH
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street, CA
95814-4794
VERMONT
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo
[[Page 15443]] Road, Waltham, MA 02254-9149
VIRGINIA
Norfolk District Engineer, ATTN: CENAO-OP-P, 803 Front Street,
Norfolk, VA 23510-1096
WASHINGTON
Seattle District Engineer, ATTN: CENPS-OP-RG, P.O. Box 3755,
Seattle, WA 98124-2255
WEST VIRGINIA
Huntington District Engineer, ATTN: CEORH-OR-F, 502 8th Street,
Huntington, WV 25701-2070
WISCONSIN
St. Paul District Engineer, ATTN: CENCS-CO-R, 190 Fifth Street,
East, St. Paul, MN 55101-1638
WYOMING
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street,
NE 68102-4978
DISTRICT OF COLUMBIA
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
PACIFIC TERRITORIES
Honolulu District Engineer, ATTN: CEPOD-CO-O, Building 230, Fort
Shafter, Honolulu, HI 96858-5440
PUERTO RICO AND VIRGIN ISLANDS
Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970,
Jacksonville, FL 32232-0019
State Certification of Nationwide Permits
Section 401 of the Clean Water Act: This Federal Register notice of
this NWP serves as the Corps application to the states or EPA, where
appropriate, for 401 water quality certification of the activities
authorized by this NWP. The states and EPA, where appropriate, are
requested to issue, deny, or waive certification pursuant to 33 CFR
330.4(c) for this NWP.
Section 307 of the Coastal Zone Management Act: This Federal
Register notice serves as the Corps determination that the activities
authorized by this NWP are consistent with States' coastal zone
management programs, where applicable. This determination is contingent
upon the addition of State CZM conditions and/or regional conditions or
the issuance by the state of an individual consistency concurrence,
where necessary. The states are requested to agree or disagree with
this consistency determination pursuant to 33 CFR 330.4(d) for this
NWP.
Environmental Documentation
We have made a preliminary determination that this action does not
constitute a major Federal action significantly affecting the quality
of the human environment. Preliminary environmental documentation has
been prepared for the proposed nationwide permit. This documentation
includes a preliminary environmental assessment and a preliminary
Section 404(b)(1) Guidelines compliance review. Copies of these
documents are available for inspection at the office of the Chief of
Engineers and at each Corps District office. Based on these documents
the Corps has provisionally determined that the proposed NWP complies
with the requirements for issuance under general permit authority.
Dated: March 15, 1995.
Stanley G. Genega,
Major General, USA, Director of Civil Works.
[FR Doc. 95-7206 Filed 3-21-95; 9:25 am]
BILLING CODE 3710-92-M