39. Residential, Commercial, and Institutional Developments: In the July 21, 1999, Federal Register notice, we proposed to issue an NWP to authorize discharges of dredged or fill material into non-tidal waters of the United States, excluding non-tidal wetlands adjacent to tidal waters, for the construction of building pads, building foundations, and attendant features for residential, commercial, and institutional developments.
Many commenters opposed the issuance of the proposed NWP. Two commenters said that this NWP should authorize discharges of dredged or fill material into non-tidal wetlands that are adjacent to tidal waters.
We believe that the scope of waters for this NWP is appropriate to ensure that NWP 39 authorizes only those residential, commercial, and institutional development activities that have minimal adverse effects on the aquatic environment.
One commenter said that this NWP should authorize only single and complete projects that consist of buildings and attached or integral attendant features. This commenter indicated that this NWP should not authorize the expansion of existing developments. Several commenters stated that golf courses should not be authorized by this NWP because they are not necessary for residential developments. Another commenter said that this NWP should authorize discharges of dredged or fill material into waters of the United States for the construction of ski areas, since they are not more environmentally harmful than golf courses.
We maintain our position that this NWP should authorize building pads and attendant features for residential, commercial, and institutional development activities. Attendant features should not be limited to structures or fills that are attached to buildings. This NWP can be used to authorize the expansion of existing developments, provided the adverse effects on the aquatic environment are minimal, individually and cumulatively. Many residential subdivisions are constructed with golf courses as important attendant features. These types of residential communities are marketed as golf course communities. We do not agree that ski areas are attendant features of residential communities in the same manner as golf courses. Ski resorts are usually constructed first, with residences constructed at a later time.
A large number of commenters supported the indexed acreage limit for NWP 39 that was proposed in the July 21, 1999, Federal Register notice. Many commenters opposed the proposed indexed acreage limit. Two commenters objected to the indexed acreage limit, stating that minimal impact determinations are based on the size and quality of the aquatic resources, not the size of the parcel owned by the applicant. A commenter remarked that the indexed acreage limit will encourage developers to build larger projects to qualify for higher acreage limits. Three commenters said that an indexed acreage limit based on project size will not ensure minimal adverse effects on the aquatic environment. Numerous commenters stated that the maximum 3 acre limit is too high. Several commenters said that the maximum indexed acreage limit should be 1 acre. Another commenter suggested a maximum indexed acreage limit of 10 acres. Several commenters recommended that the Corps impose a simple 5 acre limit for this NWP. A number of commenters suggested a simple 10 acre limit for discharges of dredged or fill material into ephemeral streams.
To ensure that this NWP authorizes only activities with minimal adverse effects on the aquatic environment, we have decided to impose a simple 1/2 acre limit on NWP 39. We have not adopted the indexed acreage limit, which will make NWP 39 easier to implement for both the Corps and the regulated public.
Various commenters suggested 100, 200, 250, and 500 linear foot limitations for stream impacts. One commenter said that NWP 39 should have a limit for perennial and intermittent stream bed impacts.
We have added a 300 linear foot limit for stream bed impacts (i.e., filling and excavating perennial and intermittent stream bed) to this NWP at paragraph (b). Division engineers can regionally condition this NWP to decrease the 300 linear foot limit for filling and excavating stream bed.
Several commenters suggested a PCN threshold of 1/3 acre. Another commenter said that PCNs should be required for all NWP 39 activities. One commenter stated that notification should be required for discharges resulting in the loss of greater than 500 linear feet of stream bed. One commenter said that a PCN should be required for discharges of dredged or fill material that result in the permanent loss of open waters, not all discharges into open waters. A commenter requested clarification of the PCN thresholds of NWP 39. One commenter said that notification should not be required for discharges into intermittent streams. One commenter recommended removing the phrase "including wetlands" at the end of paragraph (c) of the proposed NWP.
To ensure that district engineers will have the opportunity to review all activities that could result in more than minimal adverse effects on the aquatic environment, we have reduced the PCN threshold to 1/10 acre. We are retaining the requirement for notification for all discharges into open waters. The latter notification requirement applies to both temporary and permanent losses of open waters. Notification is not required for all activities authorized by NWP 39. Discharges of dredged or fill material that result in the loss of 1/
10 acre or less of non-tidal wetlands do not require the submission of a PCN to the district engineer, although a post-construction notification is required (see paragraph (i)). We have removed the phrase "including wetlands" at the end of paragraph (d) (paragraph (c) of the proposed NWP).
One commenter said that paragraph (d) of the proposed NWP 39 (now designated as paragraph (e)) should not imply that this NWP can be used more than once for the same activity.
Paragraph (e) requires the discharge of dredged or fill material into waters of the United States for the residential, commercial, or institutional development activity to be for a single and complete project. NWP 39 can be used more than once for a single and complete project, provided the combined losses of waters of the United States from all of the phases of that single and complete project do not exceed the 1/2 acre or the 300 linear foot limits for NWP 39.
One commenter expressed support for the statement of avoidance and minimization that is required by paragraph (e) of the proposed NWP 39 (now designated as paragraph (f)). Two commenters stated that the requirement for a written avoidance and minimization statement is similar to an alternatives analysis and would be cost-prohibitive for many mid-sized activities. Another commenter opposed this requirement because the NWP regulations already require avoidance and minimization.
We are retaining the requirement for the submission of a written statement explaining how avoidance and minimization of losses of waters of the United States was achieved on the project site. This statement should consist of a brief explanation that discusses how the activity was planned to avoid and minimize losses of waters of the United States on-site to the maximum extent practicable. An exhaustive analysis is not required. The required statement will document compliance with General Condition 19 and will help expedite reviews of PCNs by district engineers.
One commenter supported the mitigation requirements for NWP 39. Two commenters stated that compensatory mitigation should be required for all activities authorized by this NWP. Another commenter said that compensatory mitigation should be required for activities that require notification. Two commenters stated that the provision of paragraph (e) of the proposed NWP 39 (now designated as paragraph (f)) that provides the prospective permittee with the opportunity to submit justification explaining why compensatory mitigation is unnecessary should be deleted because it is inconsistent with the compensatory mitigation requirements of the other NWPs. One commenter recommended including a reference to the mitigation provisions in General Conditions 13 and 19 in paragraph (e) of the proposed NWP 39. Another commenter said that all prospective permittees should be required to submit detailed mitigation plans with the PCN.
As discussed elsewhere in this Federal Register notice, compensatory mitigation will normally be required for those activities that require notification to the district engineer, to ensure that the authorized work results in minimal adverse effects on the aquatic environment. If the proposed work will result in minimal adverse effects on the aquatic environment without compensatory mitigation, then the district engineer can issue an NWP verification without special conditions that require compensatory mitigation. Allowing the prospective permittee to submit a statement with the PCN to assert that compensatory mitigation is unnecessary to ensure minimal adverse effects is not contrary to the compensatory mitigation requirements of the NWPs. District engineers can determine that compensatory mitigation is necessary to ensure that the adverse effects on the aquatic environment are minimal, even though the prospective permittee may believe that compensatory mitigation should not be required. We have added text to paragraph (f) that refers to General Condition 19, which contains the mitigation requirements for the NWPs. As discussed in the section addressing the NWP general conditions, we have moved the compensatory mitigation information from paragraph (g) of General Condition 13 to General Condition 19. We maintain our position that the prospective permittee can submit either conceptual or detailed compensatory mitigation plans with the PCN. Detailed compensatory mitigation plans can be required as special conditions of the NWP authorization.
One commenter requested clarification of the phrase "minimal degradation of water quality," which appears in paragraph (g) of the proposed NWP 39, because it could be subject to broad interpretation.
The requirements of paragraph (g) (now designated as paragraph (h)) are intended to reinforce the fact that the NWPs can authorize only activities with minimal adverse effects on the aquatic environment, by focusing on two important aspects of the aquatic environment that can be altered by NWP activities, namely water quality and stream flows.
Two commenters object to the requirements of paragraph (h) of the proposed NWP 39 (now designated as paragraph (i)) because it infers that mitigation is required for activities that do not require notification. Another commenter identified an inconsistency in this paragraph, because it contains a reference to stream impacts and this commenter noted that NWP 39 requires notification for all discharges of dredged or fill material into streams.
Compensatory mitigation is not required for those NWP activities that do not require notification to the district engineer. However, compensatory mitigation to offset losses of waters of the United States may be required by state or local permits, which should be reported to the Corps through the post-construction notification required by paragraph (i). We have removed the references to stream bed impacts from paragraph (i), since the NWP requires notification for all discharges into open waters.
One commenter opposed the provisions of paragraph (i) of the proposed NWP 39 (now designated as paragraph (j)), which requires the permittee to establish and maintain, to the maximum extent practicable, vegetated buffers next to open or streams within the project area. Another commenter said that Federal and state lands should be required to have a management plan instead of deed restrictions for vegetated buffers.
The requirements for vegetated buffers next to open waters are discussed in detail in a previous section of this Federal Register notice. There is flexibility in the requirements of paragraph (j). If there are open waters or streams within the project area and it is impractical for the project proponent to establish and maintain vegetated buffers next to those waters, then those vegetated buffers are not required. However, other types of compensatory mitigation may be required to ensure that the work results in minimal adverse effects on the aquatic environment. District engineers will determine, on a case-by-case basis, when it is practicable to establish and maintain vegetated buffers and the appropriate width of those vegetated buffers.
Several commenters opposed paragraph (j) of the proposed NWP 39 (now designated as paragraph (k)), which prohibits stream channelization or stream relocation downstream of the point on the stream where the average annual flow is 1 cubic foot per second (cfs). One commenter supported this provision. Some of these commenters indicated that this provision will be difficult to implement in areas with many ephemeral streams. Other commenters stated that this requirement is difficult to implement because it will be expensive and time consuming to determine where the 1 cfs point occurs. One commenter suggested that stream channelization or relocation activities should be limited to ephemeral streams instead of prohibiting these activities downstream of the 1 cfs point. Another commenter recommended replacing the 1 cfs criterion with either a prohibition against channelizing perennial streams or utilizing drainage area instead of average annual flow. This commenter suggested applying the prohibition to streams with a drainage area greater than 250 acres.
We discussed the identification of the 1 cfs point on streams in a previous section of this Federal Register notice. Drainage area, based on regional criteria, can be used to approximate the location of the 1 cfs point on a stream. We believe that the prohibition in paragraph (k) is necessary to ensure that NWP 39 authorizes only activities with minimal adverse effects on the aquatic environment. This provision is consistent with the increased emphasis we are placing on the protection of open and flowing waters.
Several commenters objected to allowing project proponents to construct their activities in phases. Numerous commenters said that NWP 39 should not be used with NWP 14 because it will authorize activities that exceed the acreage limit of NWP 39.
District engineers will review PCNs for phased construction projects to determine if those activities comply with the terms and conditions of the NWPs. District engineers will also review the PCNs for these activities to ensure that they result in minimal adverse effects on the aquatic environment. General Condition 15 states that when more than one NWP is used to authorize a single and complete project, that single and complete project is subject to the highest specified acreage limit of those NWPs. Therefore, when NWP 14 is combined with NWP 39 to authorize a single and complete project, the total project acreage limit will be 1/2 acre.
One commenter asked how a project proponent would know if NWP 40, as it was issued in 1996, was used to construct a farm building that was more than 500 feet from a waterbody, if that land was sold to build a residential, commercial, or institutional development on the land. One commenter objected to the restrictions relating the use of NWP 39 and NWP 40 on the same parcel, but another commenter supported these restrictions.
The limitations for the use of NWPs 39 and 40 on the same parcel apply only to those activities authorized by the NWPs issued today, because the previous version of NWP 40 authorized discharges of dredged or fill material into farmed wetlands for the construction of farm buildings. We are retaining the provisions limiting the use of NWPs 39 and 40 on the same parcel.
Several commenters objected to the subdivision provision in NWP 39, stating that it will allow the authorization of activities with more than minimal adverse effects on the aquatic environment. One commenter requested clarification whether the subdivision provision applies to all of the terms of NWP 39 or whether it only addresses the acreage limits for each parcel within the subdivision. This commenter also indicated that if the district engineer grants an exemption pursuant to the subdivision provision, then the landowner can use NWP 26 to authorize the development activity. Another commenter said that only NWP 29 should be used to authorize activities on individual lots within an exempted subdivision.
The notification requirements of the subdivision provision will ensure that NWP 39 will authorize only activities with minimal adverse effects on the aquatic environment. District engineers can assert discretionary authority if the proposed work will result in more than minimal adverse effects on the aquatic environment. The subdivision provision addresses only the acreage limits for the subdivision, or the individual parcels within that subdivision if an exemption has been granted by the district engineer. The subdivision provision does not keep NWP 26 in effect for those activities that have been granted an exemption by the district engineer. If an exemption has been granted, the activities on individual parcels must comply with the terms and conditions of NWP 39. We do not agree that activities on individual lots should be eligible only for NWP 29 if an exemption has been granted, because other types of buildings may be constructed on these lots, with minimal adverse effects on the aquatic environment.
In response to a PCN, district engineers can require special conditions on a case-by-case basis to ensure that the adverse effects on the aquatic environment are minimal or exercise discretionary authority to require an individual permit for the work. The issuance of this NWP, as with any NWP, provides for the use of discretionary authority when valuable or unique aquatic areas may be affected by these activities. This NWP is subject to General Condition 25, which restricts its use in designated critical resource waters. For NWP 39 activities resulting in discharges of dredged or fill material into waters of the United States within 100-year floodplains, General Condition 26 requires the permittee to notify the district engineer and demonstrate that the proposed work complies with FEMA or FEMA-approved local floodplain construction requirements. Furthermore, General Condition 26 prohibits any above-grade fill under NWP 39 within regulatory floodways above the headwaters. NWP 39 is issued with the modifications discussed above.
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