Thursday
July 27, 1995
Part V
Department of
Defense
Corps of Engineers, Department of the
Army
Issuance of Nationwide Permit for Single-
Family Housing; Notice
38649
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Federal Register / Vol. 60, No. 144 / Thursday, July 27, 1995 / Notices
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.
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
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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
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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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38653
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(1)
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
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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)(l) 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)(l) Guidelines establishes
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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
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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
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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,
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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(1),
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(1) 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
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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
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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
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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)(l) Guidelines.
Environmental documentation has
been prepared for the NWP and
includes an environmental assessment
and Section 404(b)(l) 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
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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 l/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 l/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(1)).
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Federal Register / Vol. 60, No. 144 / Thursday, July 27, 1995 / Notices
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
33CFR330.4(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
in33CFR330.5(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) (l)-(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. Water fowl 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.
[FRDoc. 95-18455 Filed 7-26-95; 8:45 am]
BILLING CODE 3710-92-P
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