[Federal Register Volume 64, Number 167 (Monday, August 30, 1999)]
[Notices]
[Pages 47175-47178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22285]
[[Page 47175]]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
Final Notice of Modification of Nationwide Permit 29 for Single
Family Housing
AGENCY: Army Corps of Engineers, DoD.
ACTION: Final notice.
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SUMMARY: On April 30, 1998, a court order was issued by the United
States District Court, District of Alaska, remanding the Secretary of
the Army to consider lower acreage limits for Nationwide Permit (NWP)
29 and consider excluding high value waters from NWP 29. NWP 29
authorizes discharges of dredged or fill material into non-tidal waters
of the United States for the construction of single family residences,
including attendant features. The court order also prohibited the Corps
of Engineers (Corps) from accepting preconstruction notifications for
any NWP 29 activity after June 30, 1998. In the July 1, 1998, Federal
Register (63 FR 36040-36078) the Corps proposed to modify NWP 29 to
reduce the acreage limit from \1/2\ acre to \1/4\ acre. In that Federal
Register notice, the Corps also announced the suspension of NWP 29 for
activities that result in the loss of greater than \1/4\ acre of non-
tidal waters of the United States. As a result of the Corps review of
the comments received in response to the July 1, 1998, Federal Register
notice, NWP 29 has been modified to reduce the acreage limit to \1/4\
acre. In response to the court order and the modification of NWP 29,
the Corps has also issued a new environmental assessment (EA) for NWP
29. The new EA responds to the court order by addressing the use of NWP
29 in high value waters of the United States, including the process
whereby division and district engineers restrict or prohibit the use of
NWP 29 to authorize discharges of dredged material into high value
waters. The revised EA also discusses the Corps consideration of lower
acreage limits for NWP 29 and the Corps decision to reduce the acreage
threshold to \1/4\ acre. Since the revised EA fulfills the requirements
of the court order, the Corps is no longer prohibited from receiving
and processing preconstruction notifications for proposed NWP 29
activities. PCNs for NWP 29 will be accepted starting September 30,
1999.
DATES: The modification of NWP 29 is effective on September 30, 1999.
ADDRESSES: Further information can be obtained by writing to: HQUSACE,
ATTN: CECW-OR, 20 Massachusetts Avenue, NW, Washington, DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr. David Olson or Mr. Sam Collinson
at (202) 761-0199 or access the Corps of Engineers Regulatory Home Page
at: http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION: Nationwide Permit (NWP) 29, which authorizes
discharges of dredged or fill material into non-tidal waters of the
United States for the construction or expansion of single family
housing and attendant features, was first issued on July 27, 1995, as
part of the President's Wetlands Plan to ensure that regulatory
programs are fair, flexible, and effective. NWP 29 was issued to reduce
the regulatory burden on small landowners who desire to build or expand
a single family home on their property. NWP 29 was reissued on December
13, 1996, with minor modifications, for a period of five years.
On July 15, 1996, a lawsuit was filed in Alaska District Court by
several organizations against the Corps, challenging the issuance of
NWP 29 under Section 404 of the Clean Water Act (CWA), the National
Environmental Policy Act (NEPA), and the Endangered Species Act (ESA).
The plaintiffs challenged the issuance of NWP 29 because they believe
that: (1) the Corps violated the CWA by issuing an NWP for activities
that result in more than minimal adverse environmental effects; (2) the
Corps violated the CWA by issuing an NWP for activities that are not
similar in nature; (3) the Corps violated the procedural requirements
of the Section 404(b)(1) Guidelines of the CWA; (4) the Corps violated
the Endangered Species Act (ESA) by failing to consult with the U.S.
Fish and Wildlife Service (FWS) and the National Marine Fisheries
Service (NMFS); (5) the Corps violated the Fish and Wildlife
Coordination Act by failing to consult with the FWS and NMFS; (6) the
Corps violated the National Environmental Policy Act (NEPA) by failing
to prepare an Environmental Impact Statement (EIS); and (7) the
issuance of NWP 29 was arbitrary, capricious, and an abuse of
discretion. After the Corps reissued NWP 29 on December 13, 1996, a
supplemental complaint was filed by the plaintiffs challenging the
reissuance of NWP 29.
On April 30, 1998, a court order was issued by the United States
District Court, District of Alaska, remanding the Secretary of the Army
to consider excluding high value waters from NWP 29, consider lower
acreage limits for NWP 29, and to set forth those considerations in an
amended environmental assessment (EA). The court determined that the EA
for NWP 29 that was issued on December 10, 1996, inadequately addressed
the Corps consideration of the exclusion of high value waters and
consideration of lower acreage limits. Pending the Secretary of the
Army's consideration of these issues, the court enjoined the Corps from
accepting any preconstruction notifications (PCNs) for NWP 29 after
June 30, 1998, unless otherwise ordered by the court.
In the July 1, 1998, Federal Register notice, the Corps proposed to
reduce the acreage limit of NWP 29 from \1/2\ acre to \1/4\ acre, to
provide further assurance that NWP 29 would authorize only those single
family housing activities with minimal adverse effects on the aquatic
environment, individually or cumulatively. The Corps did not request
comments on the other terms and conditions of NWP 29.
In response to the July 1, 1998, Federal Register notice, the Corps
received more than 80 comments addressing the proposed modification of
NWP 29. A number of commenters supported the Corps proposal to reduce
the acreage limit of NWP 29 to \1/4\ acre. Many commenters opposed the
proposed acreage limit reduction. Several of these commenters indicated
that the Corps has not provided sufficient supporting evidence
demonstrating that the lower acreage limit is necessary to ensure that
only activities with minimal adverse effects on the aquatic environment
are authorized by NWP 29. One commenter stated that decreasing the
acreage limit of NWP 29 will result in more landowners seeking
individual permits to fill more wetlands. This commenter indicated that
the \1/2\ acre limit encourages minimization of impacts to wetlands
because landowners have incentive to design their projects to comply
with the \1/2\ acre limit of NWP, but that a \1/4\ acre limit would
discourage minimization. This commenter also stated that the proposal
is contrary to Administration's wetlands program because lowering the
acreage limit will increase burdens on the regulated public by causing
more single family housing activities to require individual permits.
Several commenters objected to NWP 29, suggesting that it should be
revoked.
We believe that a \1/4\ acre limit for NWP 29 is necessary to
ensure that this NWP limits authorization of single family housing
activities so that there will be no more than minimal adverse effects
on the aquatic environment. NWP 29 is still an effective means of
[[Page 47176]]
reducing the regulatory burden on the public for single family housing
activities in non-tidal waters of the United States, while minimizing
effects on the aquatic environment. It is unnecessary to revoke this
NWP because the PCN process allows district engineers to review all
proposed activities and determine if those activities comply with the
terms and conditions of the NWP and result in minimal adverse effects
on the aquatic environment. Regional conditioning of NWP 29 provides
for Corps districts to restrict or prohibit the use of NWP 29 to
authorize single family housing activities in high value non-tidal
waters and ensure that the NWP authorizes only activities with minimal
adverse effects on the aquatic environment. We are proposing an NWP
condition for all of the NWPs that will address the use of NWPs in
critical resource waters (see 64 FR 39252 and the discussion at the end
of this preamble).
We disagree that reducing the acreage limit of NWP 29 will
substantially increase the number of individual permits for single
family housing activities. Most landowners can design their single
family residences to comply with the lower acreage limit. The data
collected by the Corps concerning the use of NWP 29 during 1996, 1997,
and 1998 demonstrates that the average acreage loss resulting from
activities authorized by NWP 29 is less than \1/4\ acre. (The actual
data indicates an average of 0.19 acre.) This lower average acreage
loss is partly due to the PCN process, because district engineers
review each proposed NWP 29 activity and, where appropriate, require
additional minimization to ensure that the adverse effects on the
aquatic environment are minimal. Reducing the acreage limit for NWP 29
to \1/4\ acre merely reinforces the on-site avoidance and minimization
process required for NWP activities.
Several comments suggested other acreage limits for NWP 29. One
commenter recommended a 3 acre limit for NWP 29. Another commenter said
that NWP 29 should have the same acreage limit as the proposed
modification of NWP 40 for agricultural activities and proposed NWP 39
for residential, commercial, and institutional activities. This
commenter believes that the regulated public would be less confused if
the PCN thresholds for the proposed NWPs 40 and 39 are the same. Two
commenters suggested an acreage limit of \1/10\ acre. One commenter
suggested an acreage limit of \1/5\ acre, based on the average loss of
non-tidal wetlands for NWP 29 authorizations cited in the July 1, 1998,
Federal Register notice.
A 3 acre limit for single family housing activities is unlikely to
comply with the minimal adverse effects requirement for general
permits, including NWPs, nor is it likely to comply with the condition
that requires the permittee to minimize and avoid impacts on-site (see
Section 404 Only Condition 4). In addition, a 3 acre limit is
unnecessary since approximately 90% of residential landowners in the
United States own parcels that are \1/2\ acre or less in size (see the
July 27, 1995, Federal Register notice (60 FR 38650--38663) announcing
the issuance of NWP 29). Single family housing activities resulting in
the loss of greater than \1/4\ acre of waters of the United States can
be authorized by individual permits or, if available, regional general
permits issued by Corps districts. Reducing the acreage limit of NWP 29
to \1/10\ acre would substantially reduce the utility of this NWP and
greatly increase the number of individual permits required for many
single family housing activities that result in minimal adverse effects
on the aquatic environment. All PCNs for NWP 29 activities will be
reviewed by district engineers to determine if the proposed work
complies with the terms and conditions of NWP 29 and results in minimal
adverse effects on the aquatic environment. In addition, division
engineers regionally condition NWP 29 to reduce the acreage limit in
areas where there is greater potential for more than minimal individual
or cumulative adverse effects on the aquatic environment. Regional
conditions are adopted to prohibit or restrict the use of NWP 29 in
certain high value waters.
A couple of commenters stated that NWP 29 violates Section 404(e)
of the Clean Water Act. Several commenters opposed the proposed
modification of NWP 29, stating that the NWP would result in more than
minimal adverse effects on the aquatic environment. Some commenters
stated that the proposed \1/4\ acre limit would still result in
substantial cumulative losses of wetlands from activities authorized by
NWP 29. A couple of commenters stated that NWP 29 should be applicable
only in isolated wetlands. These commenters also recommended
conditioning the NWP to require septic tanks and other sewage disposal
and collection systems to be located on uplands to the maximum extent
practicable. One commenter stated that the NWP should be conditioned to
require the prospective permittee to submit a statement with the PCN
demonstrating how impacts to wetlands were avoided and minimized to the
maximum extent practicable. One commenter stated that the provision
allowing the use of NWP 29 with other NWPs should be removed.
NWP 29 complies with Section 404(e) of the Clean Water Act because
it authorizes activities that are similar in nature (i.e., the
construction or expansion of single family residences and attendant
features). All activities authorized by NWP 29 require submission of a
preconstruction notification, which will allow district engineers to
review all proposed NWP 29 activities on a case-by-case basis to ensure
that those activities result only in minimal adverse effects on the
aquatic environment. The PCN process allows district engineers to
monitor the use of NWP 29 to determine if the authorized activities
will result in more than minimal cumulative adverse effects on the
aquatic environment on a watershed basis. We do not agree that it is
necessary to restrict the use of NWP 29 only to isolated waters or
condition the NWP to limit sewage disposal systems to uplands. State
and local regulations usually address the siting of sewage disposal
systems. In those areas where state and local regulations do not
address the siting of sewage disposal systems, district engineers can
consider that issue during review of the PCN. Through regional
conditions, division engineers can prohibit or restrict the use of NWP
29 in high value waters identified by district engineers. Division or
district engineers can also exercise discretionary authority and
require an individual permit for single family housing activities that
involve discharges into high value waters, if those discharges will
result in more than minimal adverse effects on the aquatic environment.
We do not agree that using NWPs other than NWPs 14, 18, or 26 with
NWP 29 should be prohibited. For example, bank stabilization activities
authorized by NWP 13 may be necessary to protect the home site from
erosion. District engineers will review all NWP 29 activities,
including those which involve the use of other NWPs to authorize single
and complete projects, to ensure that the proposed work will result in
minimal adverse effects on the aquatic environment.
Paragraph (c) of NWP 29 requires the permittee to take all
practicable actions to minimize on-site and off-site impacts resulting
from discharges of dredged material into waters of the United States.
This condition reinforces the requirements of Section 404 Only
Condition 4, which states that discharges of dredged or fill material
into waters of the United States must be
[[Page 47177]]
minimized or avoided to the maximum extent practicable on the project
site. We do not believe it is necessary to require a statement from the
prospective permittee to demonstrate that impacts to waters of the
United States have been avoided on-site to the maximum extent
practicable for these small projects. District engineers will review
PCNs for all NWP 29 activities and may require additional minimization
on a case-by-case basis.
One commenter recommended that the requirement for vegetated
buffers should be deleted, because the Corps lacks the regulatory
authority to impose such a requirement.
The Corps currently has regulatory authority through the Clean
Water Act to require vegetated buffers for NWP 29 activities where such
vegetated buffers, including upland buffers, help prevent degradation
of water quality and aquatic habitat. The establishment and maintenance
of wetland or upland vegetated buffers adjacent to open waters,
streams, or other waters of the United States can be considered
compensatory mitigation for losses of waters of the United States
authorized by Corps permits. One of the goals of the Clean Water Act is
the maintenance and restoration of the chemical, physical, and
biological integrity of the Nation's waters. Regulatory agencies can
place conditions on a permit or authorization as long as those
conditions are related to the activities regulated by that agency. The
Section 404 activities regulated by the Corps usually cause adverse
effects on the aquatic environment. To offset these adverse effects, we
can require measures, such as vegetated upland buffers adjacent to
streams, that prevent or reduce adverse effects on the aquatic
environment. Vegetated buffers, including uplands, adjacent to open
waters of the United States provide many of the same functions and
values of wetlands, such as flood mitigation, erosion reduction, the
removal of pollutants and nutrients from water, and support aquatic
habitat values. Permit applicants must recognize that NWPs are optional
permits and if the applicant believes that the NWPs are too
restrictive, then he or she can apply for authorization under the
individual permit process.
In response to the court order issued by the United States District
Court for the District of Alaska and the modification of NWP 29, we
have issued a modified environmental assessment (EA) for NWP 29. The
revised EA considers lower acreage limits and the exclusion of high
value waters. For NWP 29, the Corps has several mechanisms to protect
high value waters, including wetlands. In high value waters, division
and district engineers can: (1) prohibit the use of the NWP in those
waters and require an individual permit or regional general permit; (2)
decrease the acreage limit for the NWP; (3) add regional conditions to
the NWP to ensure that the adverse environmental effects are minimal;
or (4) add special conditions to specific NWP authorizations, such as
compensatory mitigation requirements, to ensure that the adverse
effects on the aquatic environment are minimal. NWPs can authorize
activities in some high value waters as long as the individual and
cumulative adverse effects on the aquatic environment are minimal.
Corps districts also monitor cumulative impacts to ensure
compliance with the CWA. Corps districts generally monitor regulated
activities on a watershed basis to ensure that the activities
authorized by NWP 29 and other Corps general permits do not result in
more than minimal cumulative adverse effects on the aquatic environment
in a particular watershed. Division engineers will revoke NWP 29 in
high value aquatic environments or in specific geographic areas (e.g.,
watersheds), if they determine that the use of NWP 29 in these areas
will result in more than minimal individual and/or cumulative adverse
environmental effects to the aquatic environment.
All activities authorized under NWP 29 require preconstruction
notification to the Corps. The preconstruction notification allows
district engineers to review each proposed single family housing
activity to determine if that activity will result in minimal adverse
environmental effects, and if necessary, add special conditions to the
NWP authorization to further minimize adverse effects on the aquatic
environment. If the proposed work will result in more than minimal
adverse environmental effects on the aquatic environment, then the
District Engineer will exercise discretionary authority to require an
individual permit, with the requisite alternatives analysis and public
interest review.
The general conditions for the NWPs apply to NWP 29, and can be
found in the December 13, 1996, issue of the Federal Register (61 FR
65874-65922). NWP 29 will expire on February 11, 2002, unless otherwise
modified, suspended, or revoked. The modification of NWP 29 does not
require new Section 401 water quality certifications or Coastal Zone
Management Act consistency determinations since the modification
decreased the acreage limit, which will result in fewer single family
housing activities that can be authorized by NWP 29.
As a result of our consideration of comments received in response
to the October 14, 1998, Federal Register notice, we have proposed in
the July 21, 1999, Federal Register (64 FR 39252-39371), three new NWP
general conditions to further protect the aquatic environment. If
adopted, these new general conditions will become effective when the
new and modified NWPs that will replace NWP 26 become effective.
General Condition 25 prohibits the use of several NWPs, including NWP
29, to authorize discharges of dredged or fill material into designated
critical resource waters, including wetlands adjacent to those waters.
For the purposes of General Condition 25, designated critical resource
waters include NOAA-designated marine sanctuaries, National Estuarine
Research Reserves, National Wild and Scenic Rivers, critical habitat
for Federally-listed threatened and endangered species, coral reefs,
State natural heritage sites, and outstanding natural resource waters
officially designated by the state in which those waters are located.
Discharges into National Wild and Scenic Rivers or adjacent wetlands
may be authorized by NWP if the activity complies with General
Condition 7. Discharges into designated critical habitat for Federally-
listed threatened or endangered species may be authorized by NWP if the
activity complies with General Condition 11 and the FWS or NMFS has
concurred in a determination of compliance with General Condition 11.
General Condition 26 addresses the use of NWPs to authorize discharges
in impaired waters of the United States and wetlands adjacent to those
impaired waters. For the purposes of General Condition 26, impaired
waters are those waters of the United States that have been identified
by States or Tribes through the Clean Water Act Section 303(d) process
as impaired due to nutrients, organic enrichment resulting in low
dissolved oxygen concentration in the water column, sedimentation and
siltation, habitat alteration, suspended solids, flow alteration,
turbidity, or the loss of wetlands. General Condition 26 requires the
prospective permittee to clearly demonstrate that the activity will not
further impair the waterbody. General Condition 27 prohibits the use of
several NWPs, including NWP 29, to authorize permanent, above-grade
fills in waters of the United States in 100-year floodplains.
[[Page 47178]]
Dated: August 23, 1999.
Eric R. Potts,
Colonel, U.S. Army, Executive Director of Civil Works.
Accordingly, Nationwide Permit 29 is modified as follows:
29. Single Family Housing: Discharges of dredged or fill material
into non-tidal waters of the United States, including non-tidal
wetlands, for the construction or expansion of a single-family home and
attendant features (such as a garage, driveway, storage shed, and/or
septic field) for an individual permittee provided that the activity
meets all of the following criteria:
a. The discharge does not cause the loss of more than \1/4\ acre of
non-tidal waters of the United States, including non-tidal wetlands;
b. The permittee notifies the District Engineer in accordance with
the ``Notification'' general condition;
c. The permittee has taken all practicable actions to minimize the
on-site and off-site impacts of the discharge. For example, the
location of the home may need to be adjusted on-site to avoid flooding
of adjacent property owners;
d. The discharge is part of a single and complete project;
furthermore, that for any subdivision created on or after November 22,
1991, the discharges authorized under this NWP may not exceed an
aggregate total loss of waters of the United States of \1/4\ acre for
the entire subdivision;
e. An individual may use this NWP only for a single-family home for
a personal residence;
f. This NWP may be used only once per parcel;
g. This NWP may not be used in conjunction with NWP 14, NWP 18, or
NWP 26, for any parcel; and,
h. Sufficient vegetated buffers must be maintained adjacent to all
open water bodies, streams, etc., to preclude water quality degradation
due to erosion and sedimentation.
For the purposes of this NWP, the acreage of loss of waters of the
United States includes the filled area previously permitted, the
proposed filled area, and any other waters of the United States that
are adversely affected by flooding, excavation, or drainage as a result
of the project. Whenever any other NWP is used in conjunction with this
NWP, the total acreage of impacts to waters of the United States of all
NWPs combined, can not exceed \1/4\ acre. This NWP authorizes
activities only by individuals; for this purpose, the term
``individual'' refers to a natural person and/or a married couple, but
does not include a corporation, partnership, or similar entity. For the
purposes of this NWP, a parcel of land is defined as ``the entire
contiguous quantity of land in possession of, recorded as property of,
or owned (in any form of ownership, including land owned as a partner,
corporation, joint tenant, etc.) by the same individual (and/or that
individual's spouse), and comprises not only the area of wetlands
sought to be filled, but also all land contiguous to those wetlands,
owned by the individual (and/or that individual's spouse) in any form
of ownership.'' (Sections 10 and 404)
[FR Doc. 99-22285 Filed 8-27-99; 8:45 am]
BILLING CODE 3710-92-P
